United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PLAINTIFF'S PETITION FOR WRIT OF HABEAS CORPUS
LEO T. SOROKIN, District Judge.
Petitioner, Joseph Legrano, an inmate at the Federal Medical Center, Devens, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, on the basis of actual innocence under Bailey v. United States , 516 U.S. 137 (1995). In opposition, Respondent, Jeffrey Grondolsky, asserts that the procedural restrictions imposed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), as codified in 28 U.S.C. § 2255, divest this Court of jurisdiction to hear Legrano's petition. Grondolsky also urges denial, contending that Legrano's claim of actual innocence is meritless.
For the reasons that follow, Legrano's petition for writ of habeas corpus, Doc. No. 1, is DENIED.
On August 14, 1995, after a jury trial in the Eastern District of New York, Legrano was convicted of three counts: murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1) (Count I); conspiracy to murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(5) (Count II); and using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (Count III). Doc. No. 1 at 2; Doc. No. 6 at 2.
After Legrano's conviction, but before his sentencing, the Supreme Court decided Bailey v. United States , in which the Court narrowed the definition of "use" of a firearm. 516 U.S. 137. Legrano raised no objection to his conviction before the trial court in light of this Supreme Court's decision.
Subsequently, the district court proceeded to sentencing. The district court granted Legrano a downward departure from the sentencing guidelines for Counts I and II based on his medical condition. Doc. No. 1 at 1, 2; Doc. No. 6 at 2-3. Accordingly, he was sentenced to twenty years imprisonment followed by five years of supervised release for Count I, and a concurrent ten-year term followed by three years of supervised release for Count II. Doc. No. 6 at 3. For the § 924(c) violation, Legrano received the mandatory minimum of five years imprisonment, and three years of supervised release, to be served consecutively with respect to Counts I and II. Id .; Doc. No. 1 at 2. Because Legrano was serving time on an unrelated matter, the court ordered his sentence to begin on November 1, 1997, one year after the November 1, 1996 date of sentencing. Doc. No. 6 at 3. Legrano was represented by counsel both at trial and at sentencing. See United States v. Legrano, No. 93-CR-01231-ARR-1 (E.D.N.Y. Aug. 14, 1995), available at https://www.pacer.gov. Legrano did not raise Bailey in a post-trial motion or at his sentencing. See Doc. No. 1 at 2; Doc. No. 6 at 10.
In October 1997, on a direct appeal that challenged evidentiary rulings and raised an issue under Brady v. Maryland , 373 U.S. 83 (1963), the Second Circuit affirmed Legrano's conviction. Doc. No. 6 at 3; Doc. No. 1 at 2; see United States v. Delucia, 125 F.3d 845 (2d Cir. 1997). Legrano was represented by the attorney who counseled him at his sentencing. Delucia, 125 F.3d 845. Legrano did not raise Bailey in his appeal. See Doc. No. 1 at 2; Doc. No. 6 at 10.
Thereafter, Legrano initiated three collateral attacks challenging his conviction and/or sentence. Doc. No. 6 at 3-7; Doc. No. 1 at 2-3. First, in 1998, he filed a petition for a writ of habeas corpus under 28 U.S.C. § 2255 "based on newly discovered evidence and another BRADY violation." Doc. No. 1 at 2; see Doc. No. 6 at 3. Legrano was represented by new counsel. See Legrano, No. 98-CV-06115-ARR. Again, Legrano did not raise Bailey. See Doc. No. 1 at 2. The district court denied his petition on February 8, 1999, and both the district court and the Second Circuit declined to issue a certificate of appealability. Doc. No. 6 at 4; Doc. No. 1 at 2.
Second, in 2009, Legrano filed a pro se request for issuance of a writ of audita querela, challenging his consecutive five-year sentence for the § 924(c) conviction as being inconsistent with the language of the statute. Doc. No. 6 at 4; Doc. No. 1 at 2. The district court denied his petition, finding that the writ of audita querela was not available to Legrano because he had no colorable claim of a constitutional violation. Doc. No. 6 at 4; see Legrano v. United States, No. 09-CV-05505-ARR-LB, 2010 WL 3419683, at *1 (E.D.N.Y. Aug. 25, 2010). In particular, the version of the statute on which Legrano relied did not apply because its effectiveness post-dated his conviction. Doc. No. 1 at 2; see Legrano, 2010 WL 3419683, at *2. This petition did not raise a Bailey issue.
Third, on September 15, 2010, Legrano filed a pro se motion for a writ of audita querela or a writ of error coram nobis, pursuant to the All Writs Act, 28 U.S.C. § 1651. Doc. No. 6 at 5; Doc. No. 1 at 2; see Opinion & Order at 1, Legrano v. United States, No. 10-CV-04258-ARR-RML (E.D.N.Y. May 3, 2011), ECF No. 6. In his petition, Legrano alleged that "Petitioner is actually innocent of the 924(c) charge because the jury was permitted to convict him for mere possession of a gun, contrary to a subsequent retroactive Supreme Court case, " that being Bailey, supra. Complaint at 1, Legrano, No. 10-CV-04258-ARR-RML, ECF No. 1; see Doc. No. 1 at 2. On May 3, 2011, the district court denied Legrano's petition, finding that common law writs could not be used to circumvent the procedural requirements of AEDPA, and thus, were unavailable to Legrano because he could have raised his claims in his first timely § 2255 petition, but did not. Opinion & Order at 3, Legrano, No. 10-CV-04258-ARR-RML, ECF No. 6; Doc. No. 6 at 5; Doc. No. 1 at 3. The Court further stated, "[t]hat his failure to do so bars him from asserting these claims now does not raise serious constitutional questions." Id. at 3.
Legrano moved for reconsideration on two bases: 1) the Court had failed to consider his argument that his actual innocence under Bailey, his medical condition, and ineffective assistance of counsel were grounds for excusing his procedural default and to allow a hearing on the merits; and 2) by not reaching the merits of Legrano's claims the Court had suspended the writ of habeas corpus in violation of the Suspension Clause. Doc. No. 1 at 3; see Motion for Reconsideration of the Court's 5/3/11 Opinion & Order at 1, 2, Legrano, No. 10-CV-04258-ARR-RML, ECF No. 7. The Court rejected Legrano's arguments, finding that the essence of his petition was a second or successive § 2255 motion, and as such, he had not complied with the jurisdictional predicate requirements of 28 U.S.C. § 2255(h). Legrano v. United States, 10-CV-4258-ARR, 2011 WL 3651043, at *1 (E.D.N.Y. Aug. 16, 2011), aff'd, 513 F.Appx. 6 (2d Cir. 2013). On de novo review, the Second Circuit affirmed, noting that even if Legrano had brought his petition as a successive § 2255 motion, the Court "would deny relief on the ground that the claims raised in his petition do not rely on any new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable' or any newly discovered evidence within the meaning of § 2255(h)." Legrano v. United States, 513 F.Appx. 6, 7 n.1 (2d Cir. 2013) (summary order), cert. denied, 133 S.Ct. 2874 (U.S. 2013).
Legrano now brings a fourth collateral attack, this time pursuant to 28 U.S.C. § 2241, challenging the validity of his conviction and sentence under § 924(c) and using the same underlying arguments he raised in his third collateral attack, namely that, he is actually innocent under Bailey, his procedural default should be excused due to his medical condition and ...