United States District Court, D. Massachusetts
ERNEST A. HOLMES III, Plaintiff,
J GRONDOLSKY, WARDEN, Defendant.
MEMORANDUM AND ORDER
William G. Young UNITED STATES DISTRICT JUDGE.
reasons stated below, the Court denies the petition for writ
of habeas corpus and dismisses this case in its entirety
without assessment or payment of the filing fee.
Background and Procedural History
pro se petitioner, Ernest A. Holmes III
(“Holmes”), now in custody at FMC Devens, filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. See Petition (“Pet.”),
Docket No. 1. He did not pay the $5.00 filing fee nor seek
leave to proceed in forma pauperis. Holmes seeks
“resentencing based on the Guidelines.”
Id. at ¶ 15 (request for relief). The petition
raises two grounds: (1) the sentencing enhancement is
unconstitutionally vague based on the holding of Johnson
v. United States, 135 S.Ct. 2551 (2015); and (2) he was
sentenced under Category IV based on prior state convictions
but he should have been sentenced under Category II because
he served less than one-year for two state convictions and
his 60-day sentence for a third state conviction was vacated.
Id. at ¶ 13 (grounds for your challenge in this
petition). Holmes contends that his “sentence was
enhanced to a 15 year mandatory minimum based on prior sexual
convictions where violence was presumed by the court based on
the nature of the offense [and that Johnson forbids
a court to infer violence where violence is not an element of
the underlying offense].” Id.
October 30, 2006, Holmes entered into a written plea
agreement to receiving child pornography in violation of 18
U.S.C. § 2252A(a)(2)(A). United States v.
Holmes, C.R. No. 5:06-cr-95-DNH (N.D.N.Y. Oct. 30,
2006). In the plea agreement, Holmes admitted to three prior
New York state convictions for aggravated sexual abuse,
sexual abuse and abusive sexual conduct involving a minor or
ward. Id. Holmes acknowledged that these prior
convictions would result in increased punishment under 18
U.S.C. §§ 2252A(b)(1). On February 21, 2007, the
plea agreement was accepted, and Holmes was sentenced to 240
months incarceration and lifetime supervised release.
Id. Judgment was entered on March 12, 2007.
years later, on July 2, 2012, Holmes filed a motion to vacate
sentence pursuant to 28 U.S.C. § 2255 alleging that (1)
his sentence was incorrect under the sentencing guidelines;
(2) he had ineffective assistance of counsel; and (3) there
was a lack of federal jurisdiction over his crimes.
Id., see also Holmes v. United States, C.A.
No. 5:12-01067-DNH (N.D.N.Y. Jul. 2, 2012). On February 11,
2013, this Court issued a Memorandum Decision and Order
denying Holmes' petition to vacate, set aside, or correct
his sentence. On February 11, 2013, the sentencing judge
denied the motion and did not issue a Certificate of
March 1, 2013, Holmes moved for reconsideration of the denial
of his Section 2255 motion based on his earlier arguments
concerning ineffective assistance of counsel and lack of
federal jurisdiction over his criminal conduct. Id.
By Order dated May 3, 2013, the sentencing judge denied the
motion noting that Holmes does not identify any change in
controlling law, new evidence, or information that might
reasonably be expected to alter the sentencing court's
earlier conclusion and decision. Id. On May 15,
2013, Holmes filed an appeal, which was dismissed after
Holmes failed to file a motion for certificate of
appealability. See Holmes v. United States, No.
13-1946 (2d Cir. Sept. 24, 2013).
Savings Clause Jurisdiction
general, pursuant to 28 U.S.C. § 2255, the court in
which a federal defendant was convicted and sentenced has
exclusive jurisdiction over post-conviction proceedings
challenging the validity of the conviction or sentence.
Section 2255(e), known as the “savings clause, ”
preserves a limited role for the court in the district of a
federal inmate's incarceration to exercise jurisdiction,
under 28 U.S.C. § 2241, to consider a challenge to the
validity of an inmate's detention. See United States
v. Barrett, 178 F.3d 34, 49 (1st Cir. 1999), cert.
denied, 528 U.S. 1176 (2000); see Rogers v. United
States, 180 F.3d 349, 357 n.15 (1st Cir. 1999)
cert. denied, 528 U.S. 1126 (2000) (a
motion under § 2255 is the “exclusive remedy in
the sentencing court for any errors occurring at or prior to
sentencing, including construction of the sentence
itself.”). Section 2255(e) provides as follows:
An application for a writ of habeas corpus in behalf of a
prisoner who is authorized to apply for relief by motion
pursuant to [§ 2255], shall not be entertained ...
unless it ... appears that the remedy by motion [under §
2255] is inadequate or ineffective to test the legality of
28 U.S.C. § 2255(e) (emphasis added). The issue of the
adequacy and effectiveness of the § 2255 remedy in a
case is jurisdictional, as the proper district for filing the
petition depends on whether the petition is filed under
§ 2241 or § 2255. See Bryant v. Warden,
738 F.3d 1253, 1262 (11th Cir. 2013).
only allow recourse to the savings clause “in rare and
exceptional circumstances, ” such as those where the
restrictions on § 2255 motions would result in a
“complete miscarriage of justice.” Trenkler
v. United States, 536 F.3d 85, 99 (1st Cir. 2008)
(quoting in part In re Dorsainvil, 119 F.3d 245, 251
(3d Cir. 1997)). “Most courts have required a credible
allegation of actual innocence to access the savings
clause.” Id.; see Barrett, 178 F.3d
at 52-53 (discussing availability of §2241 where a
petitioner claims “actual innocence”); see
also United States v. Almenas, 52 F.Supp.3d 341, 345 (D.
Mass. 2014) (“the savings clause is most often used in
situations where a retroactive Supreme Court decision as to
the meaning of a criminal statute would mean that [the
petitioner] was not guilty of the crime of which he was
convicted, ” and that most courts have required
“a credible allegation of actual innocence that the
petitioner could not have effectively raised at an earlier
time, ” before allowing petitioners to take advantage
of savings clause).
nothing prevented the petitioner from raising his § 2241
claims in a first § 2255 motion, he cannot prevail in
asserting that the § 2255 process has been inadequate or
ineffective to challenge his detention. See Bryant,
738 F.3d at 1272; see also Barrett, 178 F.3d at 53.
The savings clause does not apply merely because § 2255
relief has already been denied, or because a petitioner has
been denied permission to file a second or successive §
2255 motion, or because a second or successive § 2255
motion has been dismissed, or because the one year period of
limitations has expired. United States v. Lurie, 207
F.3d 1075, 1077 (8th Cir. 2000); see Hernandez-Albino v.
Haynes, 368 Fed.Appx. 156, 2010 WL 850191, *1 (1st Cir.
2010) (unpublished decision stating “ . . . [t]he
remedy in section 2255 does not become ‘inadequate or
ineffective' simply by virtue of the fact that the
prisoner is not able to meet the gate-keeping ...