UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Chris Durfee
v. Civil No. 14-cv-197-JD
Opinion No. 2014 DNH 132
United States of America
O R D E R
Chris Durfee, proceeding pro se, seeks habeas corpus relief
pursuant to 28 U.S.C. § 2241. The petition has been submitted to
the court for preliminary review. See Rule 4 of the Rules
Governing 2254 Cases in the United States District Courts (Ҥ
2254 Rules”); see also § 2254 Rule 1(b) (authorizing court to
apply § 2254 Rules to habeas corpus petitions filed under §
2241).
Standard of Review
Pursuant to § 2254 Rule 4, a judge is required to promptly
examine any petition for habeas relief, and, if “it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the
judge must dismiss the petition.” In undertaking this review,
the court decides whether the petition contains sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face and cognizable in a federal habeas
action.” See McFarland v. Scott, 512 U.S. 849, 856 (1994)
(“Federal courts are authorized to dismiss summarily any habeas
petition that appears legally insufficient on its face.” (citing
§ 2254 Rule 4)).
Background
Chris Durfee was convicted by a jury on May 5, 1997, of the
following offenses: Conspiracy to Commit Armed Robberies (18
U.S.C. § 371); Conspiracy to Commit Robbery (
18 U.S.C. § 1951);
Two Counts of Robbery (
18 U.S.C. § 1951); Two Counts of Use of
Firearms During Violent Crime (
18 U.S.C. §§ 2 & 924(c)(1)); and
Interstate Transportation of a Stolen Vehicle (
18 U.S.C. §§ 2 &
2312).1 On August 18, 1997, Durfee was sentenced to serve 437
months. The convictions were affirmed on appeal. United States
v. LiCausi,
167 F.3d 36 (1st Cir. 1999), cert. denied sub nom.,
Durfee v. United States,
528 U.S. 827 (1999).
On October 6, 2000, pursuant to 28 U.S.C. § 2255, Durfee
filed a petition for habeas corpus relief, arguing that he was
denied effective assistance of counsel. On February 9, 2001, the
court concluded that Durfee was not entitled to relief and
dismissed the petition. Durfee filed a motion for a certificate
of appealability, which the First Circuit denied.
On May 5, 2014, Durfee filed the petition for habeas corpus
relief that is currently before the court.
1
The jury found Durfee not guilty of a third count of
conspiracy to commit robbery under § 1951.
2
Discussion
Durfee invokes the “savings clause” in § 2255 and files this
petition under § 2241.2 He contends that he may proceed under §
2241 because a recent Unites States Supreme Court decision,
Alleyne v. United States, 133 S. Ct. 2151 (2013), renders
unlawful the sentencing court’s fact finding and its imposition
of a twenty year enhancement for a “second or subsequent
conviction” under § 924(c)(1).3 Durfee argues that Alleyne is a
new rule of law that makes any factual determination that
increases the range of punishment an “element of the crime” and
not a “sentencing consideration.” He contends that the court’s
determination that Durfee’s violation of § 924(c) was his “second
or subsequent conviction,” should have been decided by a jury,
not the court. Durfee further contends that Alleyne is
retroactive on collateral review because it is a “substantive new
rule.”
Under the savings clause of § 2255, “[a] federal prisoner
cannot challenge the legality of his sentence through an
2
The savings clause of § 2255 provides: “An application for
a writ of habeas corpus on behalf of a prisoner who is authorized
to apply for relief by motion pursuant to [§ 2255], shall not be
entered if it appears that the . . . court which sentenced him
. . . has denied him relief, unless it also appears that the
remedy by motion is inadequate or ineffective to test the
legality of his detention.” § 2255(e).
3
After Durfee was sentenced, Congress amended § 924(c)(1),
increasing the sentence enhancement for a “second or subsequent
conviction” from twenty years to twenty five years. Act of Nov.
13, 1998, Pub. L. No. 105-386 § 1(a)(1),
112 Stat. 3469, 3469.
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application for a writ of habeas corpus under § 2241 unless it
appears that a § 2255 motion is ‘inadequate or ineffective to
test the legality of his detention.’” Bultmeyer v. Grondolsky,
2013 WL 5538450, at *4 (D. Mass Oct. 4, 2013) (quoting §
2255(e)). “Recognizing the danger that the [savings clause]
could easily swallow the rule and frustrate Congress’ purpose in
enacting AEDPA, the courts of appeals have read this exception
narrowly.” Sustache-Rivera v. U.S.,
221 F.3d 8, 12 (1st Cir.
2000). Invocation of the savings clause is appropriate only in
“rare and exceptional circumstances” such as where the
restrictions on § 2255 motions would result in a “complete
miscarriage of justice.” Trenkler v. United States,
536 F.3d 85,
99 (1st Cir. 2008) (internal quotation marks and citation
omitted). “Most courts have required a credible allegation of
actual innocence to access the savings clause.” Id.; see also
United States v. Barrett,
178 F.3d 34, 52-53 (1st Cir. 1999).
Durfee does not attempt to argue in his petition that § 2255
is an inadequate or ineffective remedy to contest his sentence.
Durfee “raises purely legal challenges to his sentence. These
are not the type of challenges that can overcome the narrow
exception of the savings clause.” Diaz v. Grondolsky, 2013 WL
3892894, at *3 (D. Mass. July 24, 2013). To the extent Durfee
intended to imply that § 2255 is an inadequate or ineffective
remedy because he could not meet the requirements to bring a
4
second § 2255 petition, that argument is unavailing.4 “A
petition under § 2255 cannot become ‘inadequate or ineffective,’
thus permitting the use of § 2241, merely because a petitioner
cannot meet the AEDPA ‘second or successive’ requirements. Such
a result would make Congress’s AEDPA amendment of § 2255 a
meaningless gesture.” McKubbin v. Grondolsky, --- F. Supp. 2d --
-, 2014 WL 1245881, at *7 (D. Mass. Mar. 25, 2014) (quoting
Barrett,
178 F.3d at 50).
Even if Durfee had properly invoked the savings clause and
could bring this petition under § 2241, the petition would still
be dismissed. “The jury found guilt beyond a reasonable doubt on
two separate § 924(c) charges. Even if that verdict itself were
not enough to show that the conviction on [one of the § 924
charges] was a second or subsequent conviction, Alleyne
explicitly does not require jury findings for the fact of a prior
conviction.” United States v. Diaz-Castro, --- F.3d ---, 2014 WL
2142516, at *10 n.9 (1st Cir. May 23, 2014) (citing Alleyne,
133
S. Ct. at 2160 n.1); see also United States v. Stanley,
550 Fed.
Appx. 588, 591 (10th Cir. 2013) (“The Supreme Court has held that
4
Durfee references the First Circuit’s decision in
Sustache-Rivera, 221 F.3d at 16, in which the court stated that
when there is “a Supreme Court decision overruling the circuit
courts as to the meaning of a statute, [and] a prisoner is not
guilty within the new meaning attributed to the statute . . . .
[t]he savings clause has to be resorted to for such a statutory
claim because Congress restricted second or successive petitions
to constitutional claims.” That language has no bearing on
Durfee’s petition because he does not argue that he is not guilty
under § 924(c) after Alleyne.
5
a prior conviction need not be submitted to the jury, and the
Alleyne Court left this holding in place.”). In addition,
“although [Durfee] alleges Alleyne as retroactive effect to cases
collaterally attacking a sentence, the case law interpreting
Alleyne suggests otherwise.” Bultmeyer, 2013 WL 5538450, at *5
(collecting cases).
Conclusion
For the foregoing reasons, Durfee’s petition for habeas
corpus relief (document no. 1) is dismissed. Although the
certificate of appealability requirement may not apply to
proceedings brought pursuant to § 2241, see Poellnitz v. Sabol,
2008 WL 553112, at *1 (D. Mass Feb. 28, 2008), to the extent it
does, the court declines to issue a certificate of appealability.
See
28 U.S.C. § 2253(c)(2).
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
June 11, 2014
cc: Christopher Durfee, pro se
Seth R. Aframe, Esq.
6
