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Carrera v. Craig


March 3, 2006


The opinion of the court was delivered by: Thomas J. Mcavoy, Senior United States District Judge



Currently before the Court is a petition for habeas corpus relief pursuant to 28 U.S.C. § 2241 submitted by Petitioner Raphael Carrera, a/k/a Ralph Milone.*fn1 Dkt. No. 1.

Petitioner, who is confined at the Federal Correctional Institution at Ray Brook, New York, brings this action to challenge the sentence that the United States District Court for the Eastern District of New York imposed upon him. That court sentenced Petitioner on July 2, 1999, to a term of 360 months imprisonment. Dkt. No. 1 at 2. Petitioner does not indicate whether he appealed from the conviction and sentence, or whether he filed a motion pursuant to 28 U.S.C. § 2255 in the sentencing court challenging the sentence.

As a basis for his current petition, Petitioner asserts that Petitioner's sentence is being executed (1) "in a manner inconsistent with United States Supreme Court decision(s)"*fn2 ; (2) "in a manner inconsistent" with the Fifth, Sixth and Eighth Amendments to the United States Constitution; and (3) "in a manner inconsistent with International Law." Dkt. No. 1 at 2-3. Petitioner claims that his sentence is not being properly executed.*fn3


A. Section 2255 and Section 2241

A prisoner in custody under sentence of a federal court who wishes to attack the validity of his conviction or sentence collaterally may file a motion in the sentencing court pursuant to 28 U.S.C. § 2255. See 28 U.S.C. § 2255; Adams v. United States, 372 F.3d 132, 134 (2d Cir. 2004); Chambers v. United States, 106 F.3d 472, 474 (2d Cir. 1997). That right, however, is not unlimited. Rather, § 2255 contains a gatekeeping provision that limits a petitioner's ability to file a second or successive § 2255 motion. In pertinent part, this statute provides that

[a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain --

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255.

By contrast, a petition pursuant to 28 U.S.C. § 2241 is the proper vehicle to challenge the execution of a sentence. See Adams, 372 F.3d at 135; 28 U.S.C. § 2241. For example, a petitioner may use a § 2241 petition to challenge a federal official's computation of a sentence, parole decisions, or prison disciplinary actions. See Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001) (citation omitted). A federal prisoner, however, generally may not seek relief from his conviction or sentence pursuant to a § 2241 petition.

B. Section 2255's savings clause

There is an exception to the bar against a federal prisoner using a § 2241 petition to attack a federal conviction collaterally. Pursuant to the so-called "savings clause" of § 2255, a federal prisoner may seek relief under § 2241 if he can show that his remedy under § 2255 "is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255; see Triestman v. United States, 124 F.3d 361 (2d Cir. 1997).

The Second Circuit discussed this "savings clause" provision at length in Triestman and cautioned that its remedy is narrow and exists solely "to preserve habeas corpus for federal prisoners in those extraordinary instances where justice demands it." Triestman, 124 F.3d at 378 (citations omitted).*fn4 In other words, this interpretation of § 2255's savings clause would appear to limit habeas relief to those circumstances in which § 2255's remedy is unavailable and the "failure to allow for collateral review would raise serious constitutional questions." Triestman, 124 F.3d at 377. Therefore, where a petitioner claims that § 2255's remedy is not available and also asserts a claim of actual innocence which he can prove based upon the existing record and which he could not have asserted earlier, § 2255's savings clause allows for habeas review. See Poindexter v. Nash, 333 F.3d 372, 378 (2d Cir.2003) (quotation omitted); Cephas v. Nash, 328 F.3d 98, 104 (2d Cir. 2003) (quotation and footnote omitted).*fn5

C. Petitioner's claims

As noted, in support of his petition, Petitioner argues that(1) the fact that the sentencing court enhanced his sentence based upon facts that were not admitted by the petitioner, nor found by a jury beyond a reasonable doubt violated his Sixth Amendment right to a jury trial as well as the Supreme Court's decision in Booker*fn6 (Dkt. No. 1 at 2-3, 29, 35-36); (2) supervised release is not an "authorized sentence" and therefore his term of supervised release added to his term of incarceration amounts to a violation of double jeopardy (id. at 7-20); and (3) his sentence violates the International Covenant on Civil and Political Rights (id. at 31-35). These assertions clearly challenge the imposition of his sentence and not its execution. Thus, Petitioner's remedy lies with § 2255 unless he can establish his right to proceed under § 2255's savings clause, thereby permitting him to bring this petition pursuant to § 2241.

Petitioner does not indicate whether he ever filed a § 2255 motion in the United States District Court for the Eastern District of New York. Moreover, based upon the information presented by Petitioner, it appears that he may be barred under the statute of limitations from filing a § 2255 motion in the sentencing court. In this case, however, nothing in Petitioner's application establishes that § 2255's remedy would be inadequate or ineffective in addressing the legality of his detention. While it unclear whether Petitioner raised the present claims in a § 2255 motion, he cannot not now resort to § 2241 merely to save his claims, which are now most likely time-barred. Furthermore, this Court concludes that its denial of Petitioner's request to proceed under § 2255's savings clause does not raise a "serious constitutional question." See, e.g. United States v. Lurie, 207 F.3d at 1077 (§ 2255's remedy is not inadequate or ineffective simply because the petitioner "allowed [that statute's] one year statute of limitations . . . to expire."); see also supra, n.4 and n.5.

Here, Petitioner has not shown that his remedy under Section 2255 is inadequate or ineffective. Moreover, Petitioner has not claimed that he is actually innocent, nor does it appear that he could support such a statement with any evidence. Therefore, the Court finds that § 2255's savings clause does not apply to this case, and this Court lacks jurisdiction to entertain Petitioner's § 2241 petition. Accordingly, the Court dismisses Petitioner's petition.

WHEREFORE, for the above-stated reasons, it is hereby ORDERED, that Petitioner's petition is DISMISSED; and it is further ORDERED, that the Clerk of the Court serve a copy of this Order on Petitioner.

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