United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
JENNIFER C. BOAL CHIEF, UNITED STATES MAGISTRATE JUDGE.
February 1, 2017, petitioner Theodore Aguirre
(“Aguirre”), a prisoner at FMC Devens, filed a
pro se habeas petition pursuant to 28 U.S.C. §
2241, presumably under the auspices of the savings clause of
28 U.S.C. § 2255. Aguirre challenges his enhanced
criminal sentence imposed pursuant to the residual clause of
the Armed Career Criminal Act in United States v.
Aguirre, Criminal No. 10-10365-JLT as violative of his
due process rights, in light of Johnson v. United
States, 135 S.Ct. 2551 (2015).
failed to pay the $5.00 filing fee for habeas petitions and
did not seek a waiver thereof.
The Filing Fee
filing a habeas action in this Court must either (1) pay the
$5.00 filing fee for habeas corpus actions; or (2) seek leave
to proceed without prepayment of the filing fee. See
28 U.S.C. § 1914(a) (fees); 28 U.S.C. § 1915
(proceedings in forma pauperis). The motion for
leave to proceed without prepayment of the filing fee must be
accompanied by “a certificate from the warden or other
appropriate officer of the place of confinement showing the
amount of money or securities that the petitioner has in any
account in the institution.” Rule 3(a)(2) of the Rules
Governing Section 2254 Cases.
within 21 days of the date of this Memorandum and Order,
Aguirre either shall pay the $5.00 filing fee or file a
Motion for Leave to Proceed in forma pauperis
providing complete financial disclosures demonstrating that
he cannot afford to pay the filing fee. He also shall submit
his certified prison account statement. Failure to comply
with this directive may result in a dismissal of this action.
Application of the Savings Clause of Section 2255
threshold matter, the issue arises whether this Court has
jurisdiction over Aguirre's § 2241 petition through
the invocation of the savings clause of 28 U.S.C. §
2255. Aguirre previously filed a § 2255 motion and does
not appear to have sought permission from the United States
Court of Appeals for the First Circuit (“First
Circuit”) to file a second or successive § 2255
motion based on Johnson. A court of appeals will
certify a second or successive § 2255 motion if its
challenge is based on “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(h)(2). It appears that Aguirre missed the
short window of opportunity to seek permission from the First
Circuit since the Supreme Court pronounced in Welch v.
United States, 136 S.Ct. 1257 (April 18, 2016) that
Johnson announced a substantive rule of law that
applied retroactively on collateral review. Nevertheless, on
the record in this case, the Court cannot make any final
determination that § 2241 relief is foreclosed.
Accordingly, this Court will permit this action to proceed as
set forth below.
General Order 15-1 Shall Issue
cases raising Johnson challenges, this Court has
promulgated General Order 15-1 appointing the Federal Public
Defender to screen a case raised in a § 2255 motion or
habeas petition and to take certain actions. Thus,
notwithstanding the unresolved filing fee issue, the Court
will direct the clerk to enter the General Order and appoint
the Federal Public Defender in this case.
Service of the Consent Package
this action was assigned pursuant to General Order (10-1)
dated February 2, 2010, authorizing the assignment of civil
cases to the magistrate judges sitting in Boston. The issue
whether the parties in this case all consent to proceed
before a magistrate judge pursuant to 28 U.S.C. §
636© and Rule 73(b) of the Federal Rules of Civil
Procedure is deferred pending further order of the Court. The
clerk shall send a copy of the habeas petition and the
standard consent packages to the Federal Public Defender, the
respondent, Warden Grondolsky, and William D. Weinreb, the
Acting United States Attorney for the District of