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Clark v. Spaulding

United States District Court, D. Massachusetts

December 20, 2019

KERRY CLARK, Petitioner,
v.
STEPHEN SPAULDING, Warden, Respondent.

          MEMORANDUM AND ORDER RE: RESPONDENT'S MOTION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 (DOCKET ENTRY # 10)

          MARIANNE B. BOWLER UNITED STATES MAGISTRATE JUDGE

         Pending before this court is a motion to dismiss filed by respondent Stephen Spaulding (“respondent”), warden of the Federal Medical Center (“FMC-Devens”) in Devens, Massachusetts, for lack of jurisdiction. (Docket Entry # 10). Respondent seeks to dismiss a petition filed by petitioner Kerry Clark (“petitioner”), an inmate at FMC-Devens, under 28 U.S.C. § 2255(e). The petition invokes 28 U.S.C. § 2255(e) (“the savings clause”) to challenge a sentence under 28 U.S.C. § 2241 (“section 2241”). (Docket Entry # 1). Respondent maintains that the petition is, in fact, a motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255 (“section 2255”).

         In seeking recourse under the savings clause, petitioner argues that a number of cases apply retroactively on collateral review to “fundamental sentencing errors” thereby rendering a section 2255 motion “inadequate” or “ineffective” within the meaning of the savings clause. (Docket Entry # 1) (capitalization omitted). As a result, petitioner maintains the savings clause allows him to challenge the sentence under a section 2241 petition.

         PROCEDURAL BACKGROUND

         I. Original Conviction

         On August 16, 1997, a grand jury sitting in the United States District Court in the Southern District of New York (“the New York district court”) indicted petitioner and other members of the Maisonet organization on drug-related conspiracy charges and violations of the Racketeer Influenced and Corrupt Organizations Act pursuant to 18 U.S.C. § 1962. (Docket Entry # 10-3, pp. 3-4)[1] (Docket Entry # 10-1, p. 6). On October 14, 1999, a jury found petitioner guilty of the following: one count of conspiracy to distribute narcotics in violation of 21 U.S.C. § 846; one count of participating in a racketeering enterprise in violation of 18 U.S.C. § 1962(c); and one count of conspiracy to participate in a racketeering enterprise in violation of 18 U.S.C. § 1962(d). (Docket Entry # 10-3, pp. 3-4). The jury did not determine a drug quantity individually applicable to petitioner. See United States v. Clark, 28 Fed.Appx. 34, 36 (2d Cir. 2001) (“district court based Clark's sentence on a drug quantity finding that was not made by the jury”) (unpublished).

         On May 4, 2000, the New York district court sentenced petitioner to 360 months in prison. (Docket Entry # 10-1, p. 22). Accepting a “recommendation of the Federal Probation Office, ” the trial court found that 30 kilograms or more of heroin was involved and calculated a base offense level of 38. United States v. Clark, 28 Fed.Appx. at 35; (Docket Entry # 10-3, p. 4). In addition, the court enhanced the base offense level of 38 by two levels due to petitioner's obstruction of justice amounting to a total offense level of 40. (Docket Entry # 10-3, p. 4). The court sentenced petitioner under the United States Sentencing Guidelines Manual (1998) in conjunction with petitioner's criminal history of category IV. U.S. Sentencing Guidelines Manual, §§ 2D1.1(a)(3), 2D1.1(c) (1998); (Docket Entry # 10-3, pp. 2-3).

         II. Appeal to Second Circuit

         On May 16, 2000, petitioner appealed his conviction to the Second Circuit. (Docket Entry # 10-1, p. 22). On appeal, he argued the sentence violated his Fifth and Sixth Amendment rights because the trial court did not submit to the jury the issue of whether he distributed more than 30 kilograms of heroin. United States v. Clark, 28 Fed.Appx. at 35. On November 16, 2001, the Second Circuit affirmed the district court's judgment and sentence. (Docket Entry # 10-3, p. 4).

         The Second Circuit noted that petitioner was correct in his assertion that a “twenty-year maximum sentence applies for violations of 21 U.S.C. § 841(a)(1) absent any drug quantity determinations.” United States v. Clark, 28 Fed.Appx. at 35. Nonetheless, the court reasoned that violations of 21 U.S.C. § 841(b)(1) (“section 841(b)(1)”) provided for a maximum sentence of 30 years where, as here, petitioner was previously found guilty of another felony drug offense. Id. Applying plain error review and finding that petitioner's “substantial rights were not affected, ” the Second Circuit affirmed the New York district court's ruling because the statutory “maximum penalty available . . . became 30 years” due to the “prior conviction, regardless of the amount of heroin involved.” Id. at 36. The drug quantity therefore became a “guideline factor” rather than an element of the underlying crime.[2] Id. Following this, petitioner filed a petition for a writ of certiorari to the Supreme Court. Clark v. United States, 535 U.S. 1002 (2002). On April 15, 2002, the Supreme Court declined to issue a writ of certiorari and petitioner's conviction became final. Id.

         III. First Section 2255 Motion

         On October 17, 2006, petitioner filed a section 2255 motion to vacate, set aside, or correct the sentence in the New York district court. (Docket Entry # 10-2, p. 2). On June 12, 2008, the New York district court denied the section 2255 motion because it was time-barred and “Clark [did] not [make] a substantial showing of the denial of a constitutional right.” (Docket Entry # 10-3, pp. 8, 12).

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a defendant may file a section 2255 motion within a year of a conviction becoming “final.” 28 U.S.C. § 2255(f). A “judgment of conviction becomes final when the Supreme Court denies a petition for a writ of certiorari, or when the time to file a petition for a writ of certiorari expires.” (Docket Entry # 10-3, p. 7); see Clay v. United States, 537 U.S. 522, 525 (2003).

         Petitioner's conviction therefore became “final” within the meaning of section 2255(f) on April 15, 2002, when the Supreme Court denied the petition for a writ of certiorari. Accordingly, on June 12, 2008, the New York district court denied the section 2255 motion filed in October 2006 as time-barred. (Docket Entry ## 10-2, 10-3). The New York district court allowed petitioner to amend the original motion to explain the delay in filing but petitioner failed to make an amendment. (Docket Entry # 10-3, pp. 5, 7). The court also declined to apply equitable tolling ...


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