Conley v. Crabtree

• Decision Date: 24 July 1998
• Docket Number: Civ. No. 97-1309-ST.
• Citation: 14 F.Supp.2d 1203
• Parties: Steven Patrick CONLEY, Petitioner, v. Joseph CRABTREE, Warden, FCI Sheridan, Respondent.
• Court: U.S. District Court — District of Oregon

14 F.Supp.2d 1203

Steven Patrick CONLEY, Petitioner, v. Joseph CRABTREE, Warden, FCI Sheridan, Respondent.

Civ. No. 97-1309-ST.

United States District Court, D. Oregon.

July 24, 1998.

Michael Levine, Federal Public Defender's Office, Washington, DC, for Petitioner.

Kenneth C. Bauman, Asst. U.S. Atty., for Respondent.

ORDER

HAGGERTY, District Judge.

On July 1, 1998, Magistrate Judge Stewart issued a Findings and Recommendation (doc. # 19-1) recommending (1) denial of respondent's motion to dismiss (doc. # 16-2) because petitioner may properly pursue the claims raised under 28 U.S.C. § 2241, and petitioner has filed such a petition in the district in which petitioner is incarcerated, and (2) granting respondent's motion to transfer (doc. # 16-1). On July 23, 1998, the matter was referred to this court for review. No objections to the Findings and Recommendation were filed.

The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed. R.Civ.P. 72(b). When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation of the Magistrate. Campbell v. United States District Court, 501 F.2d 196 (9th Cir. 1974).

No clear error appears on the face of the record, and I adopt the Magistrate's Findings and Recommendation.

CONCLUSION

The Magistrate's Findings and Recommendation (doc. # 19-1) is adopted. Respondent's motion to dismiss (doc. # 16-2) is denied; respondent's motion to transfer to the Eastern District of California for all further proceedings (doc. # 16-1) is granted.

IT IS SO ORDERED.

FINDINGS AND RECOMMENDATION

STEWART, United States Magistrate Judge.

Petitioner Steven Conley ("Conley"), an inmate at FCI Sheridan, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Respondent has moved to dismiss the petition as improperly filed or else to transfer the petition to the Eastern District of California.

BACKGROUND

In 1989, a jury in the Eastern District of California found petitioner guilty on drug trafficking charges, along with two counts of using or carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Petitioner received a mandatory five year sentence for each violation of § 924(c)(1), to run consecutively to any other sentence imposed on him. During its deliberations the jury requested additional guidance from the court concerning the elements of § 924(c)(1) and, in particular, what constitutes "use" of a firearm for purposes of that statute.

On direct appeal, the Ninth Circuit affirmed Conley's conviction in an unpublished decision which followed existing circuit precedents broadly construing the "uses or carries" language in § 924(c)(1). United States v. Conley, 955 F.2d 48, 1992 WL 26535 (1992). The Supreme Court subsequently construed § 924(c)(1) more narrowly, holding that the "uses" prong requires the government to show "active employment of the firearm." Bailey v. United States, 516 U.S. 137, 144, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). The practical significance of Bailey has been greatly limited by the Court's recent decision in Muscarello v. United States, ___ U.S. ____, 118 S.Ct. 1911, 141 L.Ed.2d 111 (June 8, 1998), which gives a much broader construction to the "carries" prong in § 924(c)(1).

In January 1997, Conley filed a 28 U.S.C. § 2255 motion in the Eastern District of California seeking to have his § 924(c)(1) convictions vacated. Since Conley previously had filed one or more § 2255 motions, the district court concluded that he was barred from filing another § 2255 motion unless the Ninth Circuit first certified that the motion fell within the very narrow category of successive motions authorized by Title I, § 105, of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. 104-132, codified in relevant part at 28 U.S.C. § 2255. United States v. Conley, Criminal No. S-88-0125-EJG (Order of January 30, 1997, staying action pending certification).

When Conley did not timely apply for certification, the district court dismissed his § 2255 motion without prejudice. Id (Order of April 3, 1997). The court noted, however, that the request for certification almost certainly would have been futile in light of United States v. Lorentsen, 106 F.3d 278 (9th Cir.1997) ("Lorentsen I"), which held that a Bailey motion does not qualify for certification because it is not based upon "newly discovered evidence" or "a new rule of constitutional law," which are the only two circumstances in which the AEDPA authorizes the filing of a successive petition.

The Ninth Circuit's decision in Lorentsen I left open the possibility that a remedy might still be available under § 2241. Id. Lorentsen subsequently filed a § 2241 petition in this district, where he was incarcerated. Judge Marsh vacated Lorentsen's conviction and transferred the case to the sentencing district for further proceedings. Lorentsen v. Crabtree, Civil No. 97-897-ST (Order of March 25, 1998) ("Lorentsen II").

In the interim, Conley likewise filed a § 2241 petition in the District of Oregon, where he is incarcerated. Respondent, perhaps still unsure of its position on this comparatively novel issue, variously argues (1) that this petition should be dismissed because Conley cannot pursue his Bailey claim under § 2241 and (2) that in light of Lorentsen II Conley can pursue his Bailey claim as a § 2241 petition. Respondent also proposes, as an alternative to dismissal, that the petition be transferred to the Eastern District of California. Conley objects to either dismissal or transfer, asserting that the petition has properly been filed, and that respondent has not made a sufficiently "strong showing of inconvenience" to justify a transfer. Conley urges this court to decide the merits of the Bailey claim based upon the trial transcript and, if Conley prevails, to then transfer the case to California for resentencing.

DISCUSSION

Several recent decisions have recognized a very narrow set of circumstances in which an individual precluded by the AEDPA from obtaining relief under § 2255 may seek relief under § 2241 instead. See, e.g., Lorentsen II, Civil No. 97-897-ST (DOr March 25, 1998); Davis v. Crabtree, 10 F.Supp.2d 1136 (1998); Triestman v. United States, 124 F.3d 361 (2d Cir.1997). To date, this exception has been applied only in cases where the petitioner alleges that, in light of the interpretation of § 924(c)(1) announced in Bailey and Muscarello, his conduct did not violate the statute, hence the conviction must be vacated. To deny relief in such instance would raise "serious constitutional questions" concerning the validity of the prohibition upon successive § 2255 motions. Davis, at 1140-41; Triestman, 124 F.3d at 377-78.

Respondent has erroneously interpreted these decisions as allowing a § 2241 petition to be filed in every instance where an inmate is prohibited from filing a successive § 2255 motion. In its Motion to Transfer the Petition, pp. 2-3, Respondent asserts that Lorentsen II cannot be confined to its facts, and that since all motions under 28 U.S.C. § 2255 raise the issue of a defect in conviction or sentence that could affect the time an inmate would serve in custody, they legally cannot be distinguished from Lorentsen II. Respondent's broad concession notwithstanding, the courts of this district have never endorsed such a rule.

Judge Marsh expressly limited Lorentsen II to its facts. In Davis, Judge Redden further defined the narrow circumstances in which the courts may entertain a § 2241 petition when relief would otherwise be denied because of the AEDPA's prohibition upon successive § 2255 motions:

There are at least three circumstances where denial of a remedy on account of successive § 2255 motions might raise "serious constitutional questions." Two already are covered by the express exceptions to § 2255:(1) newly discovered evidence sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense, and (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

The third circumstance is typified by cases such as Triestman and Lorentsen II: where a subsequent court decision alters the prevailing interpretation of a statute and makes clear that the petitioner's conduct did not violate the statute, hence the conviction must be vacated. Only in the third circumstance may the individual proceed via a § 2241 petition, since in the first two circumstances § 2255 provides an adequate remedy. Even then, before proceeding with a § 2241 petition (or perhaps simultaneously if there is a statute of limitations problem) the individual must first apply for and be denied § 2255 certification by the appropriate Court of Appeals, unless existing circuit precedent clearly establishes that the application for certification would be futile, as is the case now in many circuits with Bailey claims.

Given the difficulty of predicting every scenario that may potentially arise, this court declines to categorically state that there are no other exceptions to the AEDPA's prohibition upon successive § 2255 motions, but such exceptions — if they exist — will be extremely rare. Furthermore, any claim that seeks to avoid the AEDPA's prohibition upon successive § 2255 motions must, at a bare minimum, be capable of surviving the "abuse of the writ" standard (i.e., either "cause and prejudice" or that "a fundamental miscarriage of justice would result from a failure to entertain the claim"), since the Supreme Court already has decided that the United States constitution is not offended by the refusal to entertain successive habeas petitions that do not meet this stringent test. See McCleskey v. Zant, 499 U.S. 467, 494-95, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). Cf., Bousley, ...