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Reg v. Johnson

United States District Court, W.D. Louisiana, Lake Charles Division

May 14, 2018

ROBERTO BERAS REG # 45865-054
v.
CALVIN JOHNSON

         SECTION P

          KAY MAGISTRATE JUDGE

          RULING

          ROBERT G. JAMES UNITED STATES DISTRICT JUDGE

         Before the Court is the Report and Recommendation of the Magistrate Judge [Doc. No. 8], and the objections thereto filed by Petitioner Roberto Beras [Doc. No. 9]. By the Report and Recommendation, the Magistrate Judge recommended the petition should be dismissed with prejudice, finding Petitioner “failed to meet the stringent requirements of the savings clause[1] as he has not shown that he may have been convicted of a nonexistent offense under Santos or Cuellar.” [Doc. No. 8 at 6-7]. After an independent review of the record, and having determined the Magistrate Judge's findings and recommendation are correct under the applicable law, the Court hereby adopts the findings and recommendation of the Magistrate Judge, as supplemented in this Ruling.

         As discussed in the Report and Recommendation, Petitioner moves this Court, pursuant to 28 U.S.C. § 2241, to vacate his conviction as he claims “actual innocence” pursuant to Cuellar and Santos.[2] [Doc. No. 8 at 3; see also Doc. 4 at 2, 5]. Section 2241 may be used by a federal prisoner to challenge the legality of a conviction and/or sentence only if the petitioner satisfies the “savings clause” of section 2255. Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001). The “savings clause” of section 2255 provides:

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

28 U.S.C.A. § 2255(e). In order to show a claim falls under the savings clause of section 2255, a Petitioner “bears the burden of affirmatively showing that the § 2255 remedy is inadequate or ineffective.” Padilla v. United States, 416 F.3d 424, 426 (5th Cir.2005).

         A petitioner seeking relief under the savings clause of section 2255 must demonstrate three things:

(1) his claim is based on a retroactively applicable Supreme Court decision; (2) the Supreme Court decision establishes that he was “actually innocent” of the charges against him because the decision decriminalized the conduct for which he was convicted; and (3) his claim would have been foreclosed by existing circuit precedent had he raised it at trial, on direct appeal, or in his original § 2255 petition.

Christopher v. Miles, 342 F.3d 378, 382 (5th Cir.2003). “[T]he core idea is that the petitioner may have been imprisoned for conduct that was not prohibited by law.” Reyes-Requena at 903.

         In Beras's original section 2255 petition filed in the Southern District of New York, he raised the same claim he asserts in this Court - i.e., that under Santos and Cuellar, his sentence must be vacated.[3] Beras v. U.S., 2013 WL 1155415, *8 (S.D.NY). The court rejected this claim, finding it did not relate back to any of the grounds alleged in Beras's original Petition. The Court additionally noted the claim was “likely without merit, ” in light of the Second Circuit's findings on Beras's direct appeal. Id. (“Assuming that Santos applies retroactively on collateral review, Beras still has the burden of showing that the grounds charged in the Indictment present a merger problem. It is unlikely that he can make this showing, given that the Second Circuit has already held, during the course of Beras's direct appeal, that Beras's convictions for money laundering and structuring funds are not multiplicitous.”).

         On January 8, 2014, the United States Court of Appeals for the Second Circuit denied Beras's motion for a certificate of appealability and dismissed his appeal, finding in part that Beras had not shown that “jurists of reason would find it debatable whether the district court was correct in its procedural ruling . . . as to the untimeliness of certain claims raised in Appellant's supplemental 28 U.S.C. § 2255 motions.” Beras v. United States of America, No. 1:05-cv-2678 (2nd Cir. Jan. 8, 2014), Doc. No. 40 (internal quotation marks omitted).[4]

         On July 15, 2015, the Second Circuit denied Petitioner's motion for leave to file a successive 2255 motion. Id. at Doc. No. 55. On November 10, 2016, the Second Circuit denied a second motion for leave to file a successive 2255 motion, finding in part that Beras's claim asserted under Santos was “barred by 28 U.S.C. § 2244(b)(1) because it was raised and rejected in prior § 2255 proceedings . . . .” Id. at Doc. No. 56.

         On March 27, 2012, Petitioner filed his first section 2241 motion in the Northern District of Ohio. Beras v. Farley, No. 4:12-cv-738 (N.D. Ohio), Doc. 4. In that motion, Petitioner raised claims based on Federal Rule of Criminal Procedure 10, and the First and Sixth Amendments to the U.S. Constitution. Petitioner made no arguments based on Cuellar or Santos. The District Court denied the ...


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