United States District Court, D. Maine
MICHAEL J. GIGNAC, Petitioner,
UNITED STATES OF AMERICA, Respondent
RECOMMENDED DECISION ON 28 U.S.C. § 2241 MOTION
JOHN C. NIVISON, Magistrate Judge.
Citing 28 U.S.C. § 2241, Petitioner Michael J. Gignac filed a motion seeking relief from his sentence. (Motion, ECF No. 75.) In his motion, Petitioner argues that his sentence is illegal because the Court imposed a three-year term of supervised release in addition to a twenty-year prison term. Petitioner contends that because the Court imposed and he served the maximum prison term permitted by statute, he may not be subject to more incarceration in the event that he violates one or more conditions of supervised release. (Motion at 1.)
After review of the motion and the record, in accordance with Rule 4(b) of the Rules Governing Section 2255 Proceedings, because this motion is subject to the gatekeeping provisions of 28 U.S.C. §§ 2244, 2255(h), the recommendation is that the Court dismiss the motion without requiring the Government to answer.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Following a trial in 1996, a jury found Petitioner guilty of interfering with commerce by means of robbery, in violation of 18 U.S.C. § 1951; the jury found Petitioner not guilty of two other firearms charges. United States v. Gignac, 119 F.3d 67, 68 (1st Cir. 1997). The Court sentenced Petitioner to a term of twenty years of imprisonment as a career offender due to prior convictions for arson, burglary of a church, and assault on a prison officer. (Id.; Judgment, ECF No. 39.) In addition, the Court imposed a term of three years of supervised release. (Judgment, ECF No. 39.)
Petitioner appealed from the judgment. On appeal, Petitioner raised two issues: "(1) Whether the court erred in applying the career offender sentence enhancement provision; and (2) Whether the court abused its discretion in allowing the prosecutor to impeach defendant with the number, but not the nature, of his prior convictions." 119 F.3d at 68. The First Circuit affirmed the judgment in July 1997. Id. at 70.
In July 1998, Petitioner filed a motion requesting relief pursuant to 28 U.S.C. § 2255. (ECF No. 49.) Petitioner asserted claims of ineffective assistance of trial and appellate counsel, judicial error and misconduct, prosecutorial misconduct, and insufficient evidence. (Recommended Decision, ECF No. 63.) Petitioner did not raise any issue regarding supervised release. In January 1999, the Court denied the motion. (ECF Nos. 67, 68.) The First Circuit denied Petitioner's request for a certificate of appealability. ( Gignac v. United States, No. 99-1248 (1st Cir. Aug. 24, 1999).) (ECF No. 73.)
In 2001, Petitioner requested leave from the First Circuit to file a second or successive motion under section 2255. ( Gignac v. United States, No. 01-1804 (1st Cir. June 4, 2001).) The First Circuit construed the motion as a claim that the indictment was defective, and it denied the petition. (Id. (1st Cir. June 22, 2001).)
Petitioner filed the pending motion on December 23, 2014. (ECF No. 75.)
Title 28 U.S.C. § 2241 "permits a federal prisoner to seek habeas corpus if relief under § 2255 is inadequate or ineffective to test the legality of his detention.'" Barreto-Barreto v. United States, 551 F.3d 95, 102 n.6 (1st Cir. 2008) (quoting 28 U.S.C. § 2255(e)). In this case, section 2255 is not inadequate or ineffective to test the legality of Petitioner's detention in supervised release. A petitioner who is serving a term of supervised release is "in custody" for purposes of section 2255. See Parkin v. United States, 565 F.Appx. 149, 151 & n.2 (3d Cir. 2014). Petitioner's motion is in substance a section 2255 motion.
Because in this motion Petitioner challenges the same criminal judgment that he challenged in his first section 2255 motion, and because the first motion terminated with a judgment on the merits, Petitioner's current motion is a second or successive motion. See United States v. Barrett, 178 F.3d 34, 43 (1st Cir. 1999) ("[A] numerically second petition is not second or successive' if it attacks a different criminal judgment or if the earlier petition terminated without a judgment on the merits.") (quoting Pratt v. United States, 129 F.3d 54, 60 (1st Cir. 1997) (quotation marks omitted)).
As a second or successive motion, Petitioner's motion is subject to the gatekeeping provisions of sections 2255(h) and 2244(3)(A). Section 2255(h) provides that
[a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate ...