United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
B. SARIS, CHIEF UNITED STATES DISTRICT JUDGE
Sperling was convicted in the Southern District of New York
in 1973 and sentenced to a term of life in prison without the
possibility of parole. He has been incarcerated for more than
44 years and is now an elderly man in poor health. Sperling
filed a petition for writ of habeas corpus under 28 U.S.C.
§ 2241 (Docket No. 1), seeking adequate medical care and
release from Federal Medical Center, Devens (“FMC
Devens”). As the basis for his request for release,
Sperling challenges his conviction and sentence.
two hearings and consideration of supplemental briefing, the
Court ALLOWS the government's
motion to dismiss (Docket No. 11), and DISMISSES
WITHOUT PREJUDICE the habeas petition (Docket
No. 1) for lack of jurisdiction.
hearings on November 15, 2017 and January 10, 2018, the Court
held that it did not have jurisdiction to address the
validity of Petitioner's underlying conviction.
See Docket No. 22; Docket No. 23. The proper vehicle
for challenging the legality of a federal conviction or
sentence is 28 U.S.C. § 2255. See Trenkler v. United
States, 536 F.3d 85, 96 (1st Cir. 2008). A motion to
vacate, set aside, or correct a sentence under section 2255
must be brought before the sentencing court. See 28
U.S.C. § 2255(a). When section 2255 specifically
addresses a class of claims or issues, it takes precedence
over other statutes. See Trenkler, 536 F.3d at 97.
is, however, a “savings clause, ” which outlines
the limited circumstances in which the legality of a federal
sentence can be challenged via a section 2241 petition.
See 28 U.S.C. § 2255(e) (allowing habeas
petition when remedy under section 2255 would be
“inadequate or ineffective to test the legality of . .
. detention”). The savings clause is only available in
“rare and exceptional circumstances, such as those in
which strict adherence to [section 2255's] gatekeeping
provisions would result in a ‘complete miscarriage of
justice.'” Trenkler, 536 F.3d at 99
(quoting In re Dorsainvil, 119 F.3d 245, 251 (3d
Cir. 1997)). A “miscarriage of justice” is
defined as “only those ‘extraordinary instances
when a constitutional violation probably has caused the
conviction of one innocent of the crime.'”
Id. (quoting McCleskey v. Zant, 499 U.S.
467, 494 (1991)).
evidence on which Sperling relies to assert the wrongfulness
of his conviction and incarceration is a Mailgram from
Attorney Alan Dershowitz, which was discovered in 1982.
See Docket No. 1-1. The Mailgram discusses an
alleged improper ex parte communication between the trial
judge and the United States Attorney about Sperling's
habeas petition. See Docket No. 1-1. The Second
Circuit appears to have had the opportunity to consider the
Mailgram, which it received after oral argument. See
Sperling v. United States, 692 F.2d 223, 227 n.3 (2d
Cir. 1982), cert. denied, 462 U.S. 1131 (1983). In
denying an appeal from a second petition pursuant to
28 U.S.C. § 2255, the court said: “We find it
neither necessary nor appropriate to comment on a
post-argument communication addressed to us by
appellant's counsel regarding an incident alleged to have
occurred some two weeks after the argument in the instant
case.” Id. While this footnote does not
explain the Second Circuit's reasoning, Sperling has not
been “den[ied] . . . any opportunity for
judicial rectification, ” so the savings clause does
not apply in this case. Trenkler, 536 F.3d at 99
(quoting In re Davenport, 147 F.3d 605, 611 (7th
Cir. 1998)). His petition must meet the requirements of 28
U.S.C. § 2255 and cannot be pursued in this Court.
Claim for Inadequate Medical Care
also asserts that the Bureau of Prisons staff denied him
surgery that could add six to twelve months to his life.
Docket No. 1 ¶¶ 4-6. Typically, a Bivens
action is the appropriate means for a federal prisoner to
challenge the adequacy of his medical treatment. See Kane
v. Winn, 319 F.Supp.2d 162, 213-15 (D. Mass. 2004).
Courts may construe a pro se litigant's habeas petition
as a civil rights complaint when it challenges the conditions
of confinement, however. See Sanchez v. Sabol, 539
F.Supp.2d 455, 458-59 (D. Mass. 2008); Kane, 319
F.Supp.2d at 215.
the Court were to construe Sperling's habeas petition as
a Bivens action, it appears that the medical
treatment claim is moot at this time. The government has
represented that Petitioner had successful endovascular
aneurysm repair surgery on December 13, 2017. See
Docket No. 28 at 1. The Clinical Director at FMC Devens also
reported that Sperling's condition is stable and that the
University of Massachusetts Medical Center surgeons were
planning to follow up with him in six months. See
Docket No. 28 at 1. Based on the government's
representation, which has not been disputed, Sperling has
received the surgery that he alleged was being withheld.
See Docket No. 1 ¶¶ 3-6. The Court
therefore dismisses Sperling's petition without prejudice
to the filing of a Bivens action if he continues to
challenge the adequacy of his medical care at FMC Devens.
government's motion to dismiss (Docket No. 11) is
ALLOWED, and Petitioner's
section 2241 petition (Docket No. 1) is DISMISSED