United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DENISE J. CASPER, District Judge.
Petitioner James McCormack ("McCormack"), now a prisoner at FMC-Devens, has filed a writ of habeas corpus ("the Petition") pursuant to 28 U.S.C § 2241 alleging, in essence, that (1) judicial misconduct has rendered the remedy provided under 28 U.S.C. § 2255 inadequate, D. 1 at 1-2, and (2) his sentence violates the U.S. Constitution and common law since he is "actually innocent" of the firearm charge used to enhance the sentence, D. 1 at 2, 10-22. Respondent Jeff Grondolsky, Warden of FMC-Devens ("Respondent"), opposes the Petition, arguing that a § 2241 petition is not the proper vehicle for McCormack's claims and the relief he seeks. D. 14 at 1. For the reasons set forth below, the Court DENIES the Petition.
II. Factual and Procedural Background
In December 2000, McCormack was charged with conspiring and attempting to obstruct commerce by robbery and extortion in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and with using and carrying a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c). D. 14 at 3 (citing United States v. McCormack, 371 F.3d 22, 27 (1st Cir. 2004), judgment vacated, 543 U.S. 1098 (2005)). The charges arose from the kidnapping and extortion of James Carter, a former drug dealer, whom McCormack and his cohorts abducted from his home, "shot at, choked, poked with knives" and "threatened to torture and kill  unless they were paid a million dollars." Id . Carter liquidated his mutual funds and paid the kidnappers $100, 000. Id . As a result of the kidnapping, Carter suffered a stroke that left him permanently disabled. Id.
After a jury trial, McCormack was found guilty of violating the Hobbs Act but was acquitted of the firearm charge. Id . McCormack was sentenced to 188 months of incarceration. Id. at 4 (citing McCormack, 371 F.3d at 25). He appealed, arguing, in part, that the sentencing court erred in using the firearm charge to enhance the sentencing range. Id. at 5 (citing McCormack, 371 F.3d at 29-31). Specifically, the sentencing judge increased McCormack's base offense level by seventeen points, seven of which resulted from consideration of the firearm charge, raising the applicable sentencing range to 188-235 months. Id. at 4 (citing McCormack, 371 F.3d at 30); D. 1 at 2. The First Circuit denied McCormack's appeal, noting that the firearm charge could be considered for sentencing because enhancements under the sentencing guidelines "require only proof by a preponderance of the evidence" that the relevant conduct occurred, not "proof beyond a reasonable doubt[, ]" as is necessary for conviction. D. 14 at 5 (quoting McCormack, 371 F.3d at 29, n.3). The Supreme Court thereafter granted McCormack's petition for certiorari, vacated the judgment and remanded the case for further consideration in light of its decision in United States v. Booker, 543 U.S. 220 (2005), which made the U.S. sentencing guidelines advisory rather than mandatory. D. 1 at 3. The First Circuit upheld McCormack's conviction and sentence in an unpublished decision. D. 14 at 6. The First Circuit noted that McCormack had not preserved a Booker claim and, therefore, McCormack carried the burden to show that the district court would have imposed a lower sentence had the sentencing guidelines been advisory. D. 1 at 5; D. 14 at 6. The court found that McCormack had not met his burden. Id . McCormack's second petition for certiorari to the Supreme Court was denied. D. 14 at 6 (citing McCormack v. United States, 546 U.S. 1035 (2005)).
In November 2006, McCormack filed a motion under 28 U.S.C. § 2255 to vacate his sentence and conviction on the ground that the government's nondisclosure of impeachment evidence regarding a key witness violated his due process rights. D. 14 at 7 (citing McCormack v. United States, No. 06-cv-12137-JLT, D. 1). Judge Tauro, the sentencing judge, approved and adopted the magistrate judge's report and recommendation denying McCormack's request for relief on August 19, 2008. Id. at 8 (citing McCormack v. United States, No. 06-cv-12137-JLT, 2008 WL 5553166, at *1 (D. Mass. Aug. 19, 2008)). As part of its analysis, the court reasoned that "significant additional testimony [supported] McCormack's guilt" such that "the suppressed' evidence d[id] not undermine confidence in the verdict." Id . (quoting McCormack, 2008 WL 5553166, at *6-7). The District Court subsequently denied McCormack's motion for a certificate of appealability, id. (citing McCormack v. United States, No. 06-cv-12137, 2009 WL 198020 (D. Mass. Jan. 26, 2009)), which the First Circuit likewise denied on July 29, 2009, id. at 8-9 (citing McCormack, 06-cv-12137-JLT, D. 33).
In January 2014, McCormack filed a pro se omnibus motion in his criminal case to reduce or modify his sentence pursuant to 18 U.S.C. § 3582(c)(1)(B). D. 10 ¶ 4; D. 14 at 9. The petition addressed "all issues of bias and prejudice on public record[, ]'" D. 10 ¶ 4, namely, that "Judge Tauro had committed judicial misconduct or was in some way biased because he failed to refer McCormack's §[ ]2255 petition to another judge, had improperly based McCormack's sentence on acquitted conduct and failed to give sufficient weight to the alleged impeachment evidence." D. 14 at 9; see D. 10. The court (Tauro, J.) denied the motion in March, holding that it represented "an attempt to file a second or successive petition under 28 U.S.C. § 2255... [and] [b]ecause [McCormack]... failed to obtain [permission from the Court of Appeals before proceeding with a second or successive motion], th[e] court lack[ed] jurisdiction to address the merits of his claim." D. 14 at 9-10 (quoting United States v. McCormack, No. 00-cr-10309, D. 182).
McCormack filed the instant Petition pursuant to § 2241 with this Court on January 2, 2014. D. 1. McCormack first alleges that he "has been denied any opportunity for judicial rectification" and that "[a] § 2255 motion is [an] inadequate [remedy] due to fraud upon the court by officer(s) of the court' on record in McCormack v. United States, 06-cv-12137-JLT (D. Mass. 2008)." Id. at 1 (citation omitted). McCormack further contends that a § 2255 motion is inadequate because the sentencing judge abused his discretion in "not allow[ing] another judge to hear the § 2255 motion, when it facially alleged judicial usurpation of authority [by Judge Tauro] in sentencing enhancements." Id. at 2. McCormack's claim for judicial usurpation is premised on the fact that Judge Tauro used the firearm charge, for which McCormack was acquitted by a jury, to enhance the sentencing range. Id . According to McCormack, this "judicial fact finding to hand down a disproportionate sentence on acquitted conduct" constituted discrimination, which "continues to this filing." Id. at 12. McCormack asserts his "actual innocence, ' as found by a jury" and argues that the "sentencing enhancement based on acquitted conduct has resulted in a grave enough error to be deemed a miscarriage of justice corrigible therefore in a habeas corpus proceeding." Id. at 20.
A. The Court Lacks Subject Matter Jurisdiction over the Petition
Although McCormack has filed the instant Petition as a 28 U.S.C. § 2241 motion, § 2241 is not the proper vehicle for the relief McCormack seeks. See Rogers v. United States, 180 F.3d 349, 357 n.15 (1st Cir. 1999) (quoting United States v. Flores, 616 F.2d 840, 842 (5th Cir. 1980)) (providing that a § 2255 motion is the "exclusive remedy in the sentencing court for any errors occurring at or prior to sentencing, including construction of the sentence itself"). Normally, "[f]ederal prisoners are permitted to use § 2241 to attack the execution, rather than the validity, of their sentences." United States v. Barrett, 178 F.3d 34, 50 n.10 (1st Cir. 1999). In other words, a § 2241 motion typically challenges prison disciplinary actions, conditions, transfers or types of detention. See Jaramillo v. Winn, No. 01-cv-40078-RWZ, 2002 WL 1424579, at *1 (D. Mass. July 1, 2002). In contrast, challenges to the validity and duration of a sentence "generally must be raised pursuant to a motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255." Heredia v. Grondolsky, No. 12-cv-11201-RGS, 2012 WL 5932061, at *2 (D. Mass. Nov. 26, 2012). Section 2255 provides, in relevant part, that:
[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). Here, McCormack does not contest the execution of his sentence, i.e., the manner, location or conditions of his confinement. See D. 1. Rather, his Petition is akin to an attempted "second or successive" § 2255 motion seeking to challenge his sentence. See Barrett, 178 ...