Cephas v. Nash

• Decision Date: 30 April 2003
• Docket Number: Docket No. 02-2152.
• Citation: 328 F.3d 98
• Parties: Orville CEPHAS, Petitioner-Appellant, v. John NASH, Warden, Ray Brook Federal Correctional Institution, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

328 F.3d 98

Orville CEPHAS, Petitioner-Appellant, v. John NASH, Warden, Ray Brook Federal Correctional Institution, Respondent-Appellee.

Docket No. 02-2152.

United States Court of Appeals, Second Circuit.

Argued: January 23, 2003.

Decided: April 30, 2003.

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Orville Cephas, Ray Brook, New York, Petitioner-Appellant, pro se.

Barbara D. Cottrell, Assistant United States Attorney, Northern District of New York, Albany, New York (Joseph A. Pavone, United States Attorney), for Respondent-Appellee.

Before: NEWMAN, KATZMANN, and RAGGI, Circuit Judges.

RAGGI, Circuit Judge.

Petitioner-Appellant Orville Cephas, who is presently incarcerated for violations of federal narcotics and firearms laws, appeals pro se from a judgment of the District Court for the Northern District of New York (Lawrence E. Kahn, Judge), dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In that petition, Cephas argued that (1) in light of the Supreme Court decisions in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), and Muscarello v. United States, 524 U.S. 125, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998), he was actually innocent of carrying a firearm in violation of 18 U.S.C. § 924(c); and (2) in light of Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), he was actually innocent of participating in a continuing criminal enterprise ("CCE") in violation of 21 U.S.C. § 848(a). The district court concluded that it lacked jurisdiction to hear Cephas's § 2241 challenge because petitioner had failed to demonstrate that 28 U.S.C. § 2255 was inadequate or ineffective to test the legality of his conviction. See Triestman v. United States, 124 F.3d 361, 377 (2d Cir.1997). We agree with the district court that Cephas cannot invoke § 2241 jurisdiction to claim actual innocence with respect to his § 924(c) conviction because he has already unsuccessfully raised such a claim in a § 2255 motion, and Muscarello v. United States provides no new support for his argument. As for Cephas's Richardson-based challenge to his § 848(a) conviction, which the district court did not specifically address, we conclude that Cephas's inability to pursue this claim in a § 2255 motion does not give rise to § 2241 jurisdiction where it is plain on the existing record that Cephas cannot demonstrate actual innocence. See Adirondack Transit Lines, Inc. v. United Transp. Union, Local 1582, 305 F.3d 82, 88 (2d Cir.2002) (observing that appellate court may affirm on any basis supported by the record). Accordingly, we affirm the judgment of the district court.

I. Background

A. Cephas's 1990 Conviction for Narcotics Trafficking and Firearms Possession

On July 28, 1988, a federal grand jury sitting in the Northern District of New York charged Orville Cephas, together with eleven other persons, in a thirty-one count superseding indictment with violations of federal narcotics and firearms laws in connection with a drug network operating out of Saratoga Springs, New York. In 1990, following a jury trial, Cephas was convicted of (1) participating in a CCE, see 21 U.S.C. § 848(a); (2) four substantive counts of drug distribution, see 21 U.S.C. § 841(a)(1);¹ and (3) ten counts of using or carrying a firearm in furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c). For these crimes, Cephas was sentenced to a total of 271-months' incarceration.² On direct appeal, this court affirmed the conviction. See United States v. Cephas, 937 F.2d 816 (2d Cir.1991).

B. Section 2255 Motion

Five years later, on November 5, 1996, Cephas and various of his co-defendants, through counsel, moved for collateral relief pursuant to 28 U.S.C. § 2255, asserting, inter alia, that their convictions on multiple firearms counts, all relating to a single drug trafficking offense, were at odds with this court's decision in United States v. Lindsay, 985 F.2d 666, 672-76 (2d Cir.1993), and that the instructions and evidence on each firearms count were inadequate in light of the Supreme Court's ruling in Bailey v. United States, 516 U.S. at 144-45, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (requiring showing of active employment of a firearm to prove unlawful "use" under 18 U.S.C. § 924(c)(1)). In a detailed memorandum decision dated October 23, 1997, the district court granted so much of the § 2255 motion as relied on United States v. Lindsay and, in Cephas's case, vacated nine of his ten firearms convictions, a ruling that did not alter his sentence. Nevertheless, it denied that part of the motion relying on Bailey v. United States, finding that any defect in the jury instruction on "use" of a firearm was harmless because both the instruction and the evidence were sufficient to satisfy the alternative "carry" prong of § 924(c). See United States v. Pimentel, 83 F.3d 55, 58-60 (2d Cir.1996).³ In so ruling, the court specifically declined to consider a claim that the trial evidence was insufficient to establish that a firearm was carried "during and in relation to" a drug trafficking crime, because the relationship element of § 924(c) had not been affected by Bailey so as to excuse defendants' failure to raise this argument on direct appeal.

Defendants thereafter moved in the district court for reconsideration as well as a certificate of appealability, both of which were denied on February 3, 1998. Defendants were equally unsuccessful in moving in this court for a certificate of appealability or an order of remand in light of the Supreme Court's intervening decision in Muscarello v. United States, 524 U.S. at 126 (holding that "carry" prong of § 924(c) was not limited to the carrying of weapons directly on one's person but could include knowing possession and conveyance in a vehicle). See Cephas v. United States, Nos. 98-2112, 98-2113, 98-2114, 98-2115 (2d Cir. Oct. 22, 1999).

C. Application to File a Second § 2255 Motion

In the interim, Cephas also filed a pro se application with this court seeking leave to file a second § 2255 motion, see 28 U.S.C. § 2244(b)(3), in light of the Supreme Court's decisions in Muscarello and Richardson v. United States, 526 U.S. at 815, 119 S.Ct. 1707 (holding that jury must unanimously agree as to the specific violations of the drug laws that make up the "continuing series" element of a § 848 crime). The application was summarily denied because Cephas's proposed § 2255 motion was not based on either "newly discovered evidence or a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court." Cephas v. United States, No. 99-3560 (2d Cir. Oct. 13, 1999). Nevertheless, the court noted that its order was entered "without prejudice" to Cephas's filing "a petition under § 2241(c)(3)" in light of the ruling in Triestman v. United States, 124 F.3d 361. Id.

D. Section 2241 Petition

On May 25, 2000, Cephas filed a pro se § 2241 petition for a writ of habeas corpus in the Northern District of New York asserting that (1) in light of Bailey and Muscarello, he was actually innocent of the § 924(c) count of conviction because the trial evidence failed to establish that the handgun at issue was carried "during and in relation to" a drug trafficking crime; and (2) in light of Richardson, he was actually innocent of the CCE conviction because the jury had not been required to agree unanimously on the specific drug violations that established the requisite continuing series. A few months later, counsel entered a notice of appearance on Cephas's behalf and filed a memorandum of law supporting these claims.

The magistrate judge to whom the case was referred concluded preliminarily that because Cephas claimed actual innocence, he could pursue his collateral challenge under § 2241 in light of Triestman and, accordingly, set a schedule for the government's response. The government moved for dismissal on the grounds that Cephas's petition was in fact an impermissible successive § 2255 motion.

A second magistrate judge, to whom the case was reassigned, agreed that the court lacked jurisdiction to grant Cephas § 2241 relief and recommended dismissal. While acknowledging that Triestman permitted prisoners claiming actual innocence to file § 2241 challenges to their convictions and sentence if § 2255 afforded inadequate or ineffective relief, the magistrate judge concluded that Cephas did not fit into this narrow category for the simple reason that his Bailey claim had been rejected on his first § 2255 motion and his Muscarello claim had been considered by this court when it rejected his motion to file a second § 2255 motion.⁴ In recommending dismissal for lack of jurisdiction, the magistrate judge did not address petitioner's Richardson claim.

Neither did Cephas allude to his Richardson claim in objections filed by counsel to the magistrate judge's report. Instead, he asserted simply that no court had ruled on the merits of his Muscarello claim. Further, because the first magistrate judge assigned to Cephas's case had concluded that petitioner could pursue his collateral challenge pursuant to § 2241, Cephas submitted that the second magistrate judge was obliged to rule on the merits of his petition. The district court was unconvinced and dismissed Cephas's § 2241 petition for lack of jurisdiction, adopting the reasons recommended by the magistrate judge.

II. Discussion

A. Dismissal of a Habeas Corpus Petition

Title 28 U.S.C. § 2243 provides that a federal court presented with a petition for a writ of habeas corpus "shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." Implicit in this directive is the power to dismiss a habeas petition when it is patently apparent that the court lacks jurisdiction to grant the relief demanded. See also Rule 4(b) of the Rules Governing ...