Casado v. Maruka, 1:19-cv-00791
| Decision Date | 25 March 2021 |
| Docket Number | 1:19-cv-00791 |
| Parties | EFRAIN CASADO, Petitioner, v. C. MARUKA, Warden, FCI McDowell, [1] Respondent. |
| Court | U.S. District Court — Southern District of West Virginia |
PROPOSED FINDINGS AND RECOMMENDATION
This matter is assigned to the Honorable David A. Faber, Senior United States District Judge, and it is referred to the undersigned United States Magistrate Judge for initial review and submission of proposed findings and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Pending before the court is Petitioner's Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 (“§ 2241 petition”) (ECF Nos. 1 and 2) which was amended to include an additional claim (ECF No. 6) and Petitioner's Motion for Summary Judgment (ECF No. 8). Because the undersigned has determined that this court lacks jurisdiction over Grounds One, Two, and Three contained in the initial petition, no response from the Respondent has been ordered on those claims, which are ripe for summary dismissal. However, by separate Order, the undersigned has issued an Order to Show Cause directing Respondent to file a limited response on the claim in Ground Four contained in the amendment filed in ECF No. 6.
For the reasons stated herein, it is respectfully RECOMMENDED that the presiding District Judge DENY and DISMISS Grounds One, Two, and Three of Petitioner's § 2241 petition (ECF Nos. 1 and 2) for lack of subject matter jurisdiction and DENY Petitioner's Motion for Summary Judgment (ECF No. 8), but leave this matter referred to the undersigned United States Magistrate Judge for additional proceedings concerning Ground Four contained in ECF No. 6.
Petitioner is incarcerated at the Federal Correctional Institution McDowell, in Welch, West Virginia, serving a life sentence imposed by the United States District Court for the Southern District of Florida. Following a jury trial, on March 27, 2000, Petitioner was convicted of the following offenses: one count of engaging in a continuing criminal enterprise (“CCE”), from January 1990 through January 1998, in violation of 21 U.S.C. §§ 848(a), (b)(2)(A) (Count One); one count of conspiracy to possess with intent to distribute more than 5 kilograms of cocaine and 50 grams of cocaine base, from January 1990 through January 1998, in violation of 21 U.S.C. §§ 841(a) and 846 (Count Two); two counts of distribution of cocaine in excess of 500 grams, in violation of 21 U.S.C. § 841 (Counts Eight and Ten); and conspiracy to use and carry a firearm during and in relation to a drug trafficking crime, from 1994 through January 1998, in violation of 18 U.S.C. § 924(o) (Count Sixteen), all as pled in a Third Superseding Indictment. (See United States v. Casado, No. 1:99-cr-00125-KMM-4, ECF Nos. 407, 714).
Count One of the Third Superseding Indictment specified that Petitioner occupied a position as a leader, organizer, or manager of the CCE, which had five or more participants, and involved quantities of cocaine greater than 150 kilograms and quantities of cocaine base greater than 15 kilograms. Count Two listed twenty-six overt acts that had been committed in furtherance of this drug conspiracy, including fourteen shootings by various defendants. On Counts Two, Eight, and Ten, Petitioner would have been subject to a statutory sentencing range of 10 years to life, pursuant to 21 U.S.C. § 841(b)(1)(A). However, his statutory sentencing exposure was increased to 20 years to life because the government filed an information under 21 U.S.C. § 851 setting forth that he was previously convicted, on September 8, 1988, of possession of cocaine with intent to sell in the Eleventh Judicial Circuit Court of Dade County, Florida. (Id., ECF No. 538). Additionally, as an organizer and leader of the CCE, Petitioner was exposed to a mandatory life sentence, if the other criteria contained in 21 U.S.C. § 848(b)(2) were met.
On June 7, 2000, the government dismissed the charge in Count Two and Petitioner was sentenced to concurrent terms of life in prison on Counts One, Eight, and Ten, which were to run concurrent to a 280-month sentence on Count Sixteen. Id., ECF No. 779.[2] Petitioner's sentence included guideline enhancements for a leadership role in the offense under USSG § 3B1.1(a) and a “murder cross-reference” to level 43 pursuant to USSG § 2A1.1(a). However, as noted above, Petitioner's conviction on Count One automatically exposed him to a life sentence under 21 U.S.C. § 848(b)(1).
On December 13, 2005, the United States Court of Appeals for the Eleventh Circuit affirmed Petitioner's convictions and sentences in a consolidated appeal filed with other of his co-defendants. United States v. Baker, 432 F.3d 1189 (11th Cir. Dec. 13, 2005). Petitioner did not seek a writ of certiorari in the United States Supreme Court, so his Judgment became final on or about March 13, 2006.
Petitioner filed what the sentencing court construed as a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 on March 9, 2006, while his direct appeal process was ongoing. (Casado v. United States, Case No. 1:06-cv-20983, ECF No. 1). That motion was dismissed without prejudice on May 23, 2006 because the district court lacked jurisdiction, as the time for seeking a writ of certiorari was still running when Petitioner filed the motion. (Id., ECF No. 4).
On January 26, 2011, Petitioner filed a second § 2255 motion, which was received and docketed on February 1, 2011. (Casad0 v. United States, No. 1:11-cv-20345, ECF No. 1). That petition was withdrawn by Petitioner and dismissed without prejudice, except for any statute of limitations or other procedural bar, on April 13, 2011. (Id., ECF No. 8, 10, and 11).
Petitioner then attempted to file a third § 2255 motion in his sentencing court on or about December 10, 2013, which was received and docketed on December 16, 2013. (Casado v. United States, No. 1:13-cv-24517-KMM, ECF No. 1). That motion asserted the following grounds for relief: (1) that the court erred by not instructing the jury to find unanimously the identity of the five or more individuals whom he managed or supervised under the CCE statute; (2) that the court erred by failing to find the specific quantity of drugs reasonably foreseen by him; (3) that the court erred by failing to find that he used, carried, or brandished a firearm; (4) that he is actually innocent of his career offender status; (5) that his trial counsel was generally ineffective; (6) that the court erred in its application of the murder cross-reference at sentencing; and (7) that the court violated the Court Reporter Act resulting in a four-year delay in the preparation of the trial transcript. This § 2255 motion was dismissed as untimely on July 7, 2014. (Id., ECF No. 18). He was thereafter denied a certificate of appealability and his appeal of the district court's dismissal order was dismissed on February 24, 2015. (Id., ECF No. 25) (Casado v. United States, No. 14-13271-D (11th Cir. Feb. 24, 2015)).[3]
On November 1, 2019, Petitioner filed the instant § 2241 petition in this court, asserting the following grounds for relief:
(ECF No. 2). As further addressed herein, Grounds One, Two, and Three, on their face, fail to meet the criteria for consideration by this court under § 2241 through the savings clause contained in 28 U.S.C. § 2255(e).
However, on December 30, 2019, Petitioner filed an “Amendment and Memorandum Brief” (ECF No. 6), in which he sets forth an additional claim for relief.
The additional claim states as follows:
4. This Honorable Court should further apply its [Wheeler test] to Petitioner's 21 U.S.C. § 848 and 841 convictions that are impacted by the Supreme Court's holding in Rosemond v. United States, [134 S.Ct. 1240, 1245 (2014)] that can affect Petiti...
To continue reading
Request your trial