United States District Court, E.D. Michigan, Southern Division
ORDER DISMISSING PETITION FOR WRIT OF HABEAS
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner Jose Ramos
Cartagena's pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. Ramos Cartagena,
who is presently incarcerated at the Federal Correctional
Facility in Milan, Michigan, argues that he is actually
innocent of 18 U.S.C. § 924(c)(1), which prohibits using
a firearm during a crime of violence. Respondent, through the
United States Attorneys' office, has filed an answer in
opposition arguing that the petition is not properly filed
under 28 U.S.C. § 2241, and that the armed bank robbery
conviction was a crime of violence supporting Ramos
Cartagena's conviction. The Court finds the petition is
not properly filed under § 2241 and, in the alternative,
that the petition lacks merit.
1998, Ramos Cartagena was convicted by a jury in the District
of Puerto Rico of two counts of armed bank robbery, 18 U.S.C.
§ 2113(a) and (d); one count of assault, 18 U.S.C.
§ 2114(a); one count of breaking and entering, 18 U.S.C.
§ 2117; and one count of using a firearm in relation to
a crime of violence, 18 U.S.C. § 924(c)(1). See
United States v. Ramos-Cartagena,  No. 3:97-cr-00110
(Dkt. 286). The district court sentenced Ramos Cartagena to
concurrent sentences of 235 months for armed bank robbery and
assault, and 120 months for breaking and entering; and a
consecutive sentence of 120 months for the § 924(c)
Cartagena appealed to the First Circuit Court of Appeals. The
Court of Appeals affirmed his convictions and sentences.
United States v. Mojica-Baez, et al., 229 F.3d 292,
296-97 (1st Cir. 2000). Ramos Cartagena then filed a motion
to vacate his sentence under 28 U.S.C. § 2255.
Ramos-Cartagena, No. 3:97-cr-00110 (Dkt. 495). The
district court found the claims meritless and dismissed the
motion. Id. at Dkt. 512.
2013, Ramos Cartagena filed a second motion under §
2255, seeking to vacate Counts 2 and 5 of his convictions
under Alleyne v. United States, 570 U.S. 99 (2013).
The district court dismissed the petition without prejudice
because Ramos Cartagena did not obtain permission from the
First Circuit Court of Appeals to file a successive §
2255 petition. Ramos-Cartagena, No. 3:97-cr-00110
(Dkt. 592). Ramos Cartagena filed a request for certificate
of appealability (COA) and for permission to file a second
petition in the First Circuit Court of Appeals. Id.
at Dkt. 593. The Court of Appeals denied a COA and permission
to file a second petition. Ramos-Cartagena v. United
States, No. 14-1154 (1st Cir. Jan. 26, 2015).
Cartagena filed a third § 2255 motion in 2017. He sought
to vacate his § 924(c) conviction and sentence based
upon the Supreme Court's decision in Johnson v.
United States, 135 S.Ct. 2551 (2015). The district court
stayed the motion pursuant to a district-wide standing order
applicable to all § 2255 motions appointing the Officer
of the Federal Public Defender for the District of Puerto
Rico to represent any defendant who may qualify for relief
under § 2255 in light of Johnson.
Ramos-Cartagena, No. 3:97-cr-00110 (Dkt. 621).
Cartagena also filed a motion in the First Circuit Court of
Appeals seeking authorization to file a successive §
2255 motion, challenging his 18 U.S.C. § 924(c)
conviction. The First Circuit denied authorization to file a
successive § 2255 motion. Ramos-Cartagena, No.
16-1411 (1st Cir. Apr. 2, 2019).
September 15, 2017, Petitioner filed the pending petition
under § 28 U.S.C. § 2241. He argues that he is
actually innocent of using a firearm during and in relation
to a crime of violence. 18 U.S.C. § 924(c).
stated above, Ramos Cartagena has filed this action as a
habeas petition under 28 U.S.C. § 2241. The proper
avenue for relief on a federal prisoner's claim that his
conviction and sentence were imposed in violation of the
federal constitution or federal law is a motion to vacate or
correct sentence under 28 U.S.C. § 2255. United
States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001). A
federal prisoner may bring a claim challenging his conviction
or the imposition of sentence under 28 U.S.C. § 2241
only if it appears that the remedy afforded under § 2255
is inadequate or ineffective to test the legality of his
detention. Charles v. Chandler, 180 F.3d 753, 756
(6th Cir. 1999). Habeas corpus is not an “additional,
alternative, or supplemental remedy” to the motion to
vacate, set aside, or correct the sentence. Id. at
758. That a prisoner has been denied permission to file a
second or successive § 2255 motion does not render
§ 2255 “inadequate or ineffective.”
Wooten v. Cauley, 677 F.3d 303, 307 (6th Cir. 2012),
citing Charles, 180 F.3d at 756. Thus, the First
Circuit's denial of leave to file a second or successive
petition does not entitle Ramos Cartagena to seek relief
under § 2241.
Ramos Cartagena's petition were properly filed under
§ 2241, he would still not be entitled to relief. Ramos
Cartagena argues that he is “actually innocent”
of his conviction under 18 U.S.C. § 924(c), because,
under Johnson v. United States, 135 S.Ct. 2551
(2015) and Mathis v. United States, 136 U.S. 2243
(2016), his conviction for armed bank robbery no longer
qualifies as a “crime of violence.” In
Johnson, the Supreme Court held that the
“residual clause” definition of “violent
felony” under the Armed Career Criminal Act (ACCA) was
unconstitutionally vague. 135 S.Ct. at 2555-58. In
Mathis, the Supreme Court held that a prior
conviction does not qualify as the generic form of a
predicate violent felony offense listed in the ACCA if an
element of the crime of conviction is broader than an element
of the generic offense. 136 S.Ct. at 2251.
Cartagena argues that § 924(c) suffers from the same
defects as ACCA's residual clause. Section 924(c) imposes
a mandatory minimum sentence for using, carrying, or, in
furtherance of the crime, possessing a firearm “during
and in relation to any crime of violence.” 18 U.S.C.
§ 924(c)(1)(A). The statute defines “crime of
violence” as an offense that is a felony and:
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or ...