United States District Court, D. Massachusetts
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE
Fusco, who is incarcerated at FMC Devens, has filed a
petition under 28 U.S.C. § 2241
(“Petition”), Dkt. #1, in which he challenges the
validity of his federal conviction. For the reasons set forth
below, the court will deny the Petition.
3, 2012, a jury sitting in the United States District Court
for the Southern District of New York found Fusco guilty of
interstate travel in aid of racketeering in violation of 18
U.S.C. § 1952. See United States v. Fusco,
Crim. No. 1:09-cr-02139-PKC (S.D.N.Y.). On March 5, 2014,
while Fusco's direct appeal was pending before the United
States Court of Appeals for the Second Circuit, the United
States Supreme Court issued its opinion in Rosemond v.
United States, 572 U.S. 65 (2014), which concerns jury
instructions on a charge of aiding and abetting. In his
Petition, Fusco argues that the jury instructions on the
charge of interstate travel in aid of racketeering were
erroneous under Rosemond.
Second Circuit has already considered and rejected
Fusco's Rosemond argument. On March 10, 2014,
Fusco's counsel filed a reply brief in the direct appeal,
dedicating six pages of the twenty-seven page document to the
argument that jury instructions for aiding and abetting
interstate travel in aid of racketeering were erroneous in
light of Rosemond. See Fusco v. United
States, Case No. 12-4224 (2d Cir.), Dkt. #101 at 18-27.
On March 21, 2014, the Second Circuit issued a Summary Order
affirming the judgment of the district court. See United
States v. Fusco, 560 Fed. App'x 43 (2d Cir. 2014).
The Second Circuit addressed five specific issues, none of
which concerned the Rosemond argument. At the end of
the order, the court stated, “We have considered
Fusco's remaining arguments and conclude that they are
without merit or abandoned.” Id. at
counsel, Fusco subsequently filed a motion under 28 U.S.C.
§ 2255 (“§ 2255”), in which he argued,
inter alia, that the jury instructions were
erroneous under Rosemond. See Fusco v. United
States, Crim No. 09-cr-01239 (PKC), 2018 WL 6097874, at
** 2, 7 (S.D.N.Y. Nov. 21, 2018). The trial court found the
Rosemond claim to be “procedurally barred
because the Second Circuit addressed this claim on direct
appeal.” Id. at *7. The trial court
acknowledged that “[t]he Second Circuit did not
explicitly reference Rosemond in its opinion, but
stated that it had ‘considered Fusco's remaining
arguments and conclude that they are without merit or
abandoned.'” Id. at *7 (quoting United
States v. Fusco, 560 Fed. App'x at 46).
Fusco cannot seek relief under Rosemond via a §
2241 petition because the matter was decided on direct
appeal. A federal prisoner cannot challenge the legality of
his conviction through a § 2241 petition unless a motion
under § 2255 is “inadequate or ineffective to test
the legality of his detention.” 28 U.S.C. §
2255(e). Relief under § 2255 is
“‘inadequate' or ‘ineffective' only
when, in a particular case, the configuration of section 2255
is such ‘as to deny a convicted defendant any
opportunity for judicial rectification, '”
Trenkler v. United States, 536 F.3d 85, 99 (1st Cir.
2008) (quoting In re Davenport, 147 F.3d 605, 611
(7th Cir. 1998) (emphasis in original)), a tenet that Fusco
himself acknowledges, see Mem. Supp. Pet., Dkt. #2,
§ 2255 motion was not inadequate or ineffective simply
because the trial court found that the Rosemond
argument was procedurally barred. See Hale v. Fox,
829 F.3d 1162, 1171 (10th Cir. 2016) (“Because the
Seventh Circuit considered and resolved [the] claim, [the
petitioner] could not bring it again in his § 2255
motion. . . . This procedural bar does not render § 2255
‘inadequate or ineffective' under §
2255(e).”). Fusco has not been without “an
opportunity for judicial rectification” with regard to
his Rosemond claim. He was able to present the
matter on direct appeal, and the Second Circuit indicated
that it had considered and rejected all of his arguments.
foregoing reasons, the court DENIES the Petition and
DISMISSES this action.
 Fusco was convicted on other counts
that are not at issue in this action.
 Fusco acknowledges he presented the
Rosemond issue on direct appeal, but he represents
that it was “not considered” by the ...