UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Vincent Savageau

v. Civil No. 17-cv-386-LM Opinion No.

Robert Hazlewood, Warden, Federal Correctional Institution, Berlin, New Hampshire

O R D E R

Vincent Savageau, currently an inmate at the Federal

Correctional Institution (“FCI”) McKean in Pennsylvania, filed

this petition (doc. no. 1) for a writ of habeas corpus under

, while he was an inmate at FCI Berlin in New

Hampshire. Before the court is the respondent Warden’s motion

to dismiss (doc. no. 7), to which Savageau objected (doc. no.

9). Savageau filed two further documents (doc. nos. 8, 10),

which this court deems to be addenda to the petition, which this

court may screen to determine whether the claims in those

addenda are facially valid. See LR 4.3(d)(4)(A); Rule 4 of the

Rules Governing Section 2254 Cases (“§ 2254 Rules”) (judge may

screen and then dismiss petition sua sponte if it plainly

appears on its face that petitioner is not entitled to relief);

see also § 2254 Rule 1(b) (§ 2254 Rules may apply to § 2241

petitions). Background

At all relevant times, Savageau had the following

convictions for Massachusetts felonies, dating from 2002-2003:

one for unarmed assault with intent to rob, see Mass. Gen. Laws

ch. 265 § 20, one for assault and battery, see Mass. Gen. Laws

ch. 265 § 13(a), and two for possession of cocaine with intent to

distribute (hereinafter “Springfield cocaine convictions”), in

violation of Mass. Gen. Laws ch. 94C § 32A(a) and Mass. Gen. Laws

ch. 94C § 32C(a). See Commonwealth v. Savageau, No. 0279CR00737

(Mass. Super. Ct., Hampden Cnty., filed Sept. 19, 2002)1;

Commonwealth v. Savageau, No. 0223CR009113 (Mass. Dist. Ct.,

Springfield, filed Aug. 22, 2002); Commonwealth v. Savageau, No.

0223CR002371 (Mass. Dist. Ct., Springfield, filed Feb. 28, 2002).

The procedural history in Savageau’s subsequently filed

federal criminal case, United States v. Savageau, No. 1:06-cr-

1The docket for Commonwealth v. Savageau, No. 0279CR00737 (Mass. Super. Ct., Hampden Cnty.), indicates that Savageau pleaded guilty on March 11, 2003 to one count of unarmed assault with intent to rob, in violation of Mass. Gen. Laws ch. 265 § 20 and one count of assault and battery in violation of Mass. Gen. Laws ch. 265 § 13(a). On one count, the court sentenced Savageau to a House of Corrections sentence of 18 months, with one year to serve and six months suspended, followed by probation for two years, to run concurrently with a two-year probation sentence imposed on the other count. The Superior Court further ordered that those sentences would run concurrently with Savageau’s sentences on the Springfield cocaine convictions. See Commonwealth v. Savageau, No. 0279CR00737 (Mass. Super. Ct., Hampden Cnty., Mar. 11, 2003) (Dkt. No. 23) (citing Springfield Dist. Ct. Case Nos. 0223CR009113 and 0223CR002371).

2 00092 (S.D. Ga.) (“Criminal Case”), which related to armed bank

robberies that occurred in Georgia in April 2006, has been

described as follows:

On September 28, 2006, Petitioner [Savageau] pled guilty to one count of conspiracy to rob commercial businesses, in violation of

; two counts of armed bank robbery, in violation of

(a) & (d); and one count of brandishing a firearm during a crime of violence, in violation of

(c)(1)(A)(ii). . . . Petitioner [was sentenced] to serve concurrent 164-month terms of imprisonment on the conspiracy and armed robbery counts, and to serve a consecutive 84-month term of imprisonment on the firearm count; a judgment was entered on September 26, 2007. Because he had three prior convictions — two for possession with intent to distribute cocaine and one for assault — the range for [Savageau’s] sentence under the United States Sentencing Guidelines [“Guidelines”] was longer than it would have been without the prior convictions.

Petitioner’s appointed counsel filed a notice of appeal, following which he filed an appellate brief pursuant to Anders v. California,

(1967), asserting that there were no arguable issues of merit on appeal. The Eleventh Circuit agreed and affirmed Petitioner’s convictions and sentences on September 17, 2008. United States v. Savageau,

(11th Cir. 2008) (per curiam).

Savageau v. United States, No. 1:12-cv-00016-WTM-WLB (“2255

Motion”),

, at *1-*3,

,

at *1 (S.D. Ga. Feb. 7, 2012) (footnote and citations omitted),

R&R adopted, No. 1:12-cv-00016-WTM-WLB,

,

(S.D. Ga. Feb. 27, 2012).

Savageau asserts that the Presentence Investigation Report

(“PSR”) in his federal criminal case recommended that he be

3 sentenced as a career offender under U.S.S.G. § 4B1.1, upon the

finding in the PSR that his two Springfield cocaine convictions

were “controlled substance offenses” and his Massachusetts

assault with intent to rob was a “crime of violence” under

U.S.S.G. § 4B1.2. See Pet. (Doc. no. 1), at 13, 14. Savageau

asserts that the court in his federal criminal case applied the

career offender Guidelines range in sentencing him, although he

asserts his state sentences for those convictions were imposed on

the same date. Id. at 17.

Savageau filed a pro se motion seeking relief under

in the Southern District of Georgia in 2011,

claiming that his state court convictions resulted from

ineffective assistance of counsel in those cases. The court in

Savageau’s federal criminal case denied the motion as barred by

the statute of limitations and declined to issue a certificate of

appealability. See 2255 Motion,

, at *1,

, at *1 (adopting Feb. 7, 2012 R&R,

,

).

In the instant § 2241 petition and its addenda, Savageau

asserts claims challenging the calculations underlying his 164-

month concurrent sentences on the conspiracy and armed bank

robbery convictions, and his consecutive 84-month sentence for

brandishing a firearm under

(c), as follows:

4 1. Citing Mathis v. United States,

(2016), Savageau claims that his prior convictions did not qualify him as a career offender under the Guidelines;

2. Citing cases including United States v. Godin,

(1st Cir. 2008), and United States v. Rodríguez- Rosado,

(1st Cir. 2017), Savageau claims his prior state convictions should have been grouped for purposes of calculating his sentence under the Guidelines because he was sentenced for those convictions on the same day;

3. Citing Johnson v. United States,

, (2015), and Sessions v. Dimaya,

(2018), and noting the similarity between the definitions at issue in those cases and the definitions of a “crime of violence” under the Guidelines and

(c)(3), Savageau claims that his federal convictions did not qualify him: (a) for an enhanced sentence under the Guidelines; or (b) for a sentence under § 924(c);

4. Citing Dean v. United States,

(2017), Savageau claims that the sentencing court did not consider the length of his mandatory consecutive sentence under § 924(c) in calculating his sentence for all of his offenses;

5. Savageau claims he did not possess a firearm during the bank robberies at issue, invalidating his sentence for brandishing a firearm during a crime of violence under

(c).

Discussion

I. Savings Clause Jurisdiction

Pursuant to

, the trial court generally has

exclusive jurisdiction over a petitioner’s post-conviction

motions challenging the validity of his conviction or sentence.

Section 2255(e), known as the “savings clause,” preserves a

limited role for the court in the district where a federal inmate

5 is in prison to consider a § 2241 petition challenging the

validity of his incarceration. See United States v. Barrett,

(1st Cir. 1999). The savings clause provides, in

pertinent part:

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to [§ 2255], shall not be entertained . . . unless it . . . appears that the remedy by motion [under § 2255] is inadequate or ineffective to test the legality of his detention.

(e) (emphasis added). Savageau, an FCI Berlin

inmate at the time his § 2241 petition was filed, seeks to invoke

this court’s “savings clause” jurisdiction under § 2255(e).

While the First Circuit has not provided examples of all

circumstances where savings clause jurisdiction might arise,2 the

court has clarified that § 2255’s “adequacy and effectiveness

2In Sustache-Rivera v. United States,

, 16 & n.14 (1st Cir. 2000), the court noted that savings clause jurisdiction has been found in cases where petitioners have asserted statutory interpretation claims based on new Supreme Court precedent, previously unavailable to them, that changed the law in the circuit and narrowed the scope of a criminal statute in a manner that would have rendered them not guilty of the offense of which they were convicted. See

(citing cases). But see McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc.,

(11th Cir.) (en banc) (savings clause jurisdiction unavailable despite adverse circuit precedent that has changed after first § 2255 motion, as petitioner “could have tested the legality of his detention by requesting that we reconsider our precedent en banc or by petitioning the Supreme Court for a writ of certiorari”), cert. denied,

(2017); Prost v. Anderson,

(10th Cir. 2011) (intervening changes in statutory interpretation cannot render § 2255 inadequate or ineffective)).

6 must be judged ex ante.” Trenkler v. United States,

(1st Cir. 2008). “[P]ost-conviction relief can be termed

‘inadequate’ or ‘ineffective’” for purposes of invoking the

savings clause “only when, in a particular case, the

configuration of section 2255 is such ‘as to deny a convicted

defendant any opportunity for judicial rectification.’”

(citation omitted). The Trenkler court further observed that

courts have allowed access to the savings clause in only “rare

and exceptional circumstances, such as those in which strict

adherence” to the statutory limits on access to relief under

section 2255 “would result in a ‘complete miscarriage of

justice.’”

(citation omitted). Therefore, this court has

savings clause jurisdiction only if the configuration of § 2255

has effectively denied Savageau any opportunity for judicial

review and manifest injustice has resulted. Id.

II. Guidelines Sentence Claims (Claims 1, 2, 3(a))

Savageau’s Claims 1, 2, and 3(a) challenge the validity of

his advisory Guidelines sentence. This court need not decide as

a preliminary matter whether the law in the Eleventh Circuit at

the time of Savageau’s conviction, direct appeal, or initial

§ 2255 motion, would have countenanced Savageau’s claims. Even

if settled law at those times would have knocked the legs out

7 from under Claims 1, 2, and 3(a), and even if the cases Savageau

cites changed the governing law in the Eleventh Circuit, such

changed Circuit precedent alone would not provide Savageau with

access to this court’s savings clause jurisdiction. Savageau

must also show that his advisory Guidelines sentence was a

miscarriage of justice.

The court thus proceeds directly to consider whether

Savageau has demonstrated that any error in his Guidelines

sentence resulted in a miscarriage of justice. In general, in

“collateral-review jurisprudence, the term ‘miscarriage of

justice’ means that the defendant is actually innocent.” United

States v. Olano,

(1993); see also Trenkler,

(savings clause jurisdiction may arise over statutory

claims that narrow scope of statute of conviction if petitioner

makes “a credible allegation of actual innocence”). Actual

innocence means factual innocence, not mere legal insufficiency.

Bousley v. United States,

(1998).

Savageau does not argue here that he is factually innocent

of the state offenses at issue, and none of those convictions

have been invalidated. Savageau’s claims regarding Mathis,

Rodríguez-Rosado, Johnson, and Dimaya are premised on arguments

regarding the legal sufficiency of factors affecting his advisory

Guidelines sentence range; Savageau makes no claim here that he

8 did not commit the Massachusetts offenses at issue, and he has

not disputed that the Springfield cocaine convictions in fact

qualified as controlled substance offenses. Savageau has thus

not demonstrated that any manifest injustice resulted from the

use of his prior convictions to enhance his advisory Guidelines

sentence. Furthermore, as to Claim 3(a), the Supreme Court’s

decision in Beckles v. United States,

(2017),

clarifies that a due process void-for-vagueness claim challenging

a Guidelines sentence is not viable. See

(“the

Guidelines are not subject to a vagueness challenge under the Due

Process Clause”). Accordingly, the claims in the § 2241 petition

identified here as Claims 1, 2, and 3(a) are properly dismissed

for lack of savings clause jurisdiction.

III. Section 924(c) Sentence Claims (Claims 3(b), 4, 5)

A. Johnson and Dimaya (Claim 3(b))

Citing Johnson and Dimaya, Savageau claims that his federal

convictions did not qualify him for a seven-year minimum

consecutive sentence under the use-of-force or residual clauses

of

(c)(3)(A) and (B). Savageau’s claim in that

regard is facially invalid as his federal armed bank robbery

conviction qualifies as a “crime of violence” under

(c)(3)(A). See Hunter v. United States,

, 390

9 (1st Cir. 2017) (“we hold that federal bank robbery, and a

fortiori federal armed bank robbery, are crimes of violence under

the force clause,”

(c)(3)(A)); see also In re

Johnson, No. 18-11865-E,

, at *9 (11th

Cir. Nov. 21, 2018) (“regardless of Dimaya’s potential effect on

§ 924(c)(3)(B)’s residual clause, [petitioner’s] § 924(c)

convictions are still valid because his companion offenses of

armed bank robbery still qualify as ‘crimes of violence’” under

§ 924(c)(3)(A) (citing In re Hines,

, 1337 & n.5

(11th Cir. 2016)).

B. Dean Claim (Claim 4)

Citing Dean, Savageau claims that the court in his federal

criminal case did not consider the length of his mandatory

minimum consecutive sentence under § 924(c) in calculating his

total sentence. In Dean, the Supreme Court held that the

sentencing court is not precluded from considering, in

determining the sentence for the predicate crime of violence,

that § 924(c) imposes a mandatory consecutive sentence for the

§ 924(c) offense. Dean,

. The respondent

moves to dismiss that Dean claim.

Savageau’s Dean claim is not the type of claim that the

First Circuit has indicated could be cognizable under the savings

10 clause. Savageau does not argue that Dean altered the

interpretation of a statute in a way that rendered his conduct no

longer a criminal act, and he has not argued that his sentence

exceeded the statutory maximum for his offenses. Cf. Trenkler,

; Sustache-Rivera,

& n.14.

Furthermore, Savageau has not shown that the substance of his

Dean argument was previously unavailable to him at the time of

his sentencing, direct appeal, or first § 2255 motion. Finally,

Dean has not been recognized as retroactively applicable to cases

on collateral review by any court that has addressed that

question. See Beasley v. Werlich, No. 18-cv-1125-DRH,

, at *3-*4,

, at *4 (S.D. Ill.

July 6, 2018) (citing cases); see also Habeck v. United States,

, 954 (4th Cir. 2018), cert. denied, No. 18-7920,

(U.S. Mar. 18, 2019) (petitioner’s Dean claim

“fails to meet the requirements of the savings clause because

Dean has not been held to apply retroactively to cases on

collateral review”); United States v. Dawson,

(D. Or. 2018) (“Because the rule in Dean affects only

the sentencing judge’s discretion in calculating a sentence, it

is procedural under Schriro, not substantive, and does not

retroactively apply to [petitioner’s] case.” (citing Schriro v.

Summerlin,

(2004)). Savageau has not

11 demonstrated that his 248-month sentence has resulted in a

miscarriage of justice. Claim 4 is thus dismissed for lack of

savings clause jurisdiction.

C. Actual Innocence of Possessing Firearm (Claim 5)

Savageau maintains that he did not “possess” a firearm -- a

fact he states his co-defendant Demetrius Freeman confirmed in

clarifying Savageau’s role in the robberies -- and thus, Savageau

asserts, his sentence for brandishing a firearm during a crime of

violence under

(c) must be vacated. The Supreme

Court has characterized an actual innocence claim as a claim

asserting that “in light of new evidence ‘it is more likely than

not that no reasonable juror would have found petitioner guilty

beyond a reasonable doubt.’” House v. Bell,

(2006) (citation omitted). Savageau’s current claim of not

having possessed a firearm does not undermine his conviction as

to Count Six, resulting from his guilty plea to the charge that

he and Freeman, “aided and abetted by each other and others,”

knowingly brandished a firearm in relation to an armed bank

robbery. Sept. 28, 2006 Plea Agt., Criminal Case (ECF No. 51),

at 12. Savageau makes no argument that he lacked foreknowledge,

at a time when he could have walked away from the crime, that his

co-defendant would brandish a firearm during the armed bank

12 robbery. Cf. Rosemond v. United States,

, 78–79

(2014). As such, Savageau’s claim of not possessing a firearm

does not amount to a claim supported by “new reliable evidence—

whether it be exculpatory scientific evidence, trustworthy

eyewitness accounts, or critical physical evidence,” that shows

his factual innocence. Schlup v. Delo,

(1995).

As nothing in the record suggests that Savageau’s case presents a

colorable claim of actual innocence with respect to his aiding

and abetting an armed bank robbery during which a firearm was

brandished, Savageau has not shown that the savings clause allows

this court to exercise jurisdiction over the claims challenging

his sentence under § 924(c).

Conclusion

For the foregoing reasons, the court grants the respondent

Warden’s motion to dismiss the § 2241 petition (doc. no. 7), and

dismisses all claims asserted in the petition and its addenda

(doc. nos. 1, 8, 10), without prejudice to Savageau’s ability to

apply in the Eleventh Circuit for leave to file a second or

successive § 2255 motion asserting the claims he asserts here.

The clerk’s office is directed to update the docket to list an

address for petitioner at the facility where the Federal Bureau

13 of Prisons Online Inmate Locator indicates he is currently

incarcerated, to enter judgment, and to close the case.

SO ORDERED.

_______________________________ Landya B. McCafferty United States District Judge

March 20, 2019

cc: Vincent Savageau, pro se Seth R. Aframe, Esq.

14