Roche v. Breckon

• Decision Date: 05 March 2020
• Docket Number: Civil Action No. 7:18-cv-00325
• Court: U.S. District Court — Western District of Virginia
• Parties: FELIX ROCHE, Petitioner, v. WARDEN BRECKON, Respondent.

FELIX ROCHE, Petitioner, v. WARDEN BRECKON, Respondent.

Civil Action No. 7:18-cv-00325

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION

FILED: March 6, 2020

March 5, 2020

MEMORANDUM OPINION

By: Michael F. Urbanski Chief United States District Judge

Felix Roche, a federal inmate proceeding pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging that his continued detention is unconstitutional. This matter is before the court on respondent's motion to dismiss or, in the alternative, for summary judgment. After reviewing the record, the court concludes that respondent's motion must be granted.

I.

Roche is in the custody of the Warden of United States Penitentiary ("USP") Lee. He is serving three concurrent terms of life in prison for racketeering and drug crimes.

Roche appealed his convictions and sentences. On April 9, 1998, the Court of Appeals for the Third Circuit affirmed affirmed the judgment.

Roche thereafter filed three motions to vacate sentence pursuant to 28 U.S.C. § 2255 in the sentencing court, in 1999, 2001, and 2011. The district court denied the first on December 7, 1999. Roche appealed, and the Third Circuit affirmed the denial. The second was dismissed on April 23, 2002, presumably as a second or successive § 2255 motion. The Third Circuit subsequently denied Roche's application to file a second or successive motion to vacate pursuant to § 2255. On November 16, 2012, the district court denied Roche's third motion to vacate. Roche has also filed a motion to correct illegal sentences in the District of New Jersey, which remains pending.

In addition to his filings in the District of New Jersey and the Third Circuit, Roche filed a previous petition for habeas corpus pursuant to 28 U.S.C. § 2241 in this court in 2005. The court found that Roche had not demonstrated entitlement to relief under § 2241 and, therefore, construed and dismissed the petition without prejudice as a second or successive motion to vacate under § 2255. The Fourth Circuit affirmed the dismissal on February 22, 2006, and subsequently denied Roche's petition for rehearing en banc.¹

Roche filed the current petition on July 10, 2018. Respondent thereafter sought and received a stay from this court pending the Supreme Court's decision as to whether to grant the petition for certiorari in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018). While the stay was pending, Roche filed a motion to amend the original petition. The court denied the motion without prejudice to being refilled after was stay was lifted. After the stay was lifted, Roche again filed a motion to amend the petition, which the court granted. Respondent filed a motion to dismiss or, in the alternative, for summary judgment. Roche then filed a response in opposition to the motion to dismiss. Roche has also filed a motion for summary judgment.

Roche raises three claims in the instant petition, as amended.² First, he argues that the trial court lacked jurisdiction over the "racketeering murder" charge because murder is a state crime. Second, Roche avers that he was never federally indicted, or convicted, for any federal or state murder offense, but is being detained for the conduct of murder based on the most analogous federal statute. Third, Roche challenges the erroneous jury instruction on aiding and abetting which resulted in an illegal detention, conviction, and sentence.

II.

Typically, a petitioner challenging the validity of his conviction or sentence must proceed under 28 U.S.C. § 2255 in the district where he was convicted. However, the "savings clause" in § 2255 allows a prisoner to challenge the validity of his conviction and/or his sentence by filing a § 2241 petition for writ of habeas corpus, if he demonstrates that § 2255 is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e) ("An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention."). "[T]he remedy afforded by § 2255 is not rendered inadequate or ineffective merely because an individual has been unable to obtain relief under that provision, or because an individual is procedurally barred from filing a § 2255 motion." In re Vial, 115 F.3d 1192, 1194 n.5 (4^th Cir. 1997).³

In Wheeler, the Fourth Circuit explained that where a petitioner is challenging the legality of his sentence (as opposed to his conviction), § 2255 will be deemed "inadequate or ineffective" only when all of the following four conditions are satisfied: (1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to meet the gatekeeping provisions of § 2255(h)(2)⁴ for second or successive motions; and (4) due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect. Wheeler, 886 F.3d at 429; see also Lester v. Flournoy, 909 F.3d 708, 712 (4th Cir. 2018) (applying Wheeler); In re Jones, 226 F.3d 328, 333-34 (4^th Cir. 2000) (reaching same conclusion with respect to challenges to convictions and setting forth similar factors) . The Wheeler court also affirmed that the requirements of the savings clause are jurisdictional. 886 F.3d at 423. Thus, a § 2241 petitioner relying on the savings clause to challenge his sentence must meet the Wheeler test for the district court to have subject matter jurisdiction to evaluate the merits of the petitioner's claims. Id. at 426-29. Although the court must apply the procedural standard in Wheeler, "[i]n evaluating the substantive law in a § 2255(e) savings clause analysis, the court must look to the substantive law of the circuit where a defendant was convicted." Ledezma-Rodriguez v. Brecken, No. 7:18-cv-00268-JLK, 2019 WL 4644556, at *2 (W. D. Va. Sept. 24, 2019) (quoting Hahn v. Moseley, 931 F.3d 295, 300-01 (4^th Cir. 2019)).

Roche cannot meet Wheeler's requirements for use of § 2255's savings clause.

Roche first challenges his detention for the murder of a police informant named Eric Coleman, a state law crime over which he argues the federal court lacked jurisdiction. Pet. at 14-15; Am. Pet. at 2, 8-10.⁵ He raises a number of arguments in support of this claim, all of which are problematic.⁶

Section 28 U.S.C. § 2255 2255 plainly states:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). Thus, the statute plainly contemplates that challenges to the court's jurisdiction should be raised pursuant to § 2255 in the sentencing court. See id.; see also Williams v. United States, 283 F.2d 59, 60 (10^th Cir. 1960) ("Lack of jurisdiction is a specific ground for relief under § 2255 and may be adequately and effectively tested by that procedure."). The court reiterates that lack of success under § 2255, or procedurally inability to utilize that provision, does not render § 2255 "inadequate or ineffective." Vial, 115 F.3d at 1194 n.5

Moreover, Roche's contentions are are clearly constitutional arguments. For example, he states: "Article I, Sec. 8, Cl. 17, clearly states the enumerations of offenses delegated to the government before they can take seat and regulate. Within this clause there's no crimes [sic] of murder . . . ." Pet. at 14. Further, "§1962 creates an impermissible interference with state sovereignty, as murder within the Jurisdiction belonging to the States, is not one of the enumerate[d] government powers to regulate under 18 U.S.C. §1962 or Article I, Sec. 8, Cl. 3 and Cl. 17." Id. at 15; see also Resp. at 2 ("It goes without saying that preventing and dealing with crime is much more the business of the State than it is of the federal Government."). In the petition, as amended, Roche asserts that that he "is now serving a Life Sentence due to the conduct of the murder. It is this life sentence that is in question, and the warden who's illegally carrying out this punishment which is cruel and unusual punishment, thats [sic] violating Mr. Felix Roche Constitutional Right." Am. Pet. at 2.

Constitutional arguments have no place within Wheeler's framework. See Wheeler, 886 F.3d at 429 (describing first and second requirements as: "(1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review . . ."); see also Jones, 226 F.3d at 333-34 ("(1) at the time of conviction, settled law of this circuit of the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law."). Wheeler and Jones both involved...