United States District Court, D. Massachusetts
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
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”).
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.
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.
(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”)
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).
Appeal to Second Circuit
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.
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. 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.
First Section 2255 Motion
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,
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).
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 ...