United States District Court, N.D. Alabama, Eastern Division
LUIS A. LUGA-VELEZ Petitioner,
W.T. TAYLOR, Warden, Respondent.
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE
Luis A. Luga-Velez seeks relief from his federal criminal
conviction and sentence pursuant to 28 U.S.C. § 2241.
(Doc. 1). The magistrate judge ordered the
respondent to show cause why the Court should not grant the
petition. (Doc. 5). The respondent filed a response, and Mr.
Luga-Velez replied. (Docs. 9, 13). On April 7, 2017, the
respondent filed a notice of supplemental authority. (Doc.
For the reasons discussed below, the Court finds that it
lacks jurisdiction over Mr. Luga-Velez's claim for
FACTS AND PROCEDURAL BACKGROUND
Luga-Velez was charged with several federal crimes arising
from events that occurred in 2001. See United States v.
Cruz, 352 F.3d 499 (1st Cir. 2003).Puerto Rico Police
Agent Angel Aviles observed three individuals, including Mr.
Luga-Velez and two codefendants - Messrs. Cruz and Gonzalez -
outside a bar. Cruz, 352 F.3d at 502. Each man had a
pistol on his waistline. Cruz, 352 F.3d at 502. Mr.
Cruz had a “fanny pack” and appeared ready to
receive money. Cruz, 352 F.3d at 502. Agent Aviles
watched what appeared to be a transaction between Mr. Cruz
and another man who approached by car, but Agent Aviles could
not see whether there was an actual exchange of drugs or
money. Cruz, 352 F.3d at 502. Mr. Gonzalez
disappeared around the side of the bar. When he returned, he
and another man were carrying a pillowcase from which rifle
barrels were protruding. Cruz, 352 F.3d at 502. The
men put the pillowcase in a trash can and, with the
assistance of Mr. Luga-Velez and Mr. Cruz, covered the
pillowcase with a blanket and some trash. Cruz, 352
F.3d at 502. Agent Aviles called for backup. When the backup
arrived, Mr. Luga-Velez and Mr. Gonzalez ran toward the bar.
Cruz, 352 F.3d at 502. Mr. Luga-Velez entered the
building and went behind the bar where he was seen with a
pistol in his hand. Cruz, 352 F.3d at 503. After a
struggle, Mr. Gonzalez surrendered. Cruz, 352 F.3d
Luga-Velez was arrested, and the pistol that he was seen
holding was recovered from an area between a bottle rack and
the bar. Cruz, 352 F.3d at 503. No drugs were found
on Mr. Luga-Velez, but the pillowcase inside the garbage can
contained two converted machine guns, another rifle, a
pistol, and large amounts of ammunition. Cruz, 352
F.3d at 503. All of the guns were loaded, and the serial
numbers on three of the guns had been removed. Cruz,
352 F.3d at 503. When Mr. Cruz was arrested, his
fanny pack contained substances which proved to be cocaine
base, heroin, and cocaine. Cruz, 352 F.3d at 503.
United States charged all of the men in a single indictment.
In count five, the United States charged Mr. Luga-Velez with
possession of a firearm in furtherance of a drug trafficking
scheme, in violation of 18 U.S.C. § 924(c)(1).
Cruz, 352 F.3d at 503. All of the counts in the
charges, including count five, included the allegation that
“the defendants, aid[ed] and abett[ed] each
other” under 18 U.S.C. § 2. Cruz, 352
F.3d at 503. Mr. Luga-Velez was convicted of all counts.
Cruz, 352 F.3d at 503. In connection with
his conviction for possessing firearms in furtherance of a
drug trafficking scheme, the district court sentenced Mr.
Luga-Velez to a minimum prison term of 30 years under 18
U.S.C. § 924(c)(1)(B)(ii). Cruz, 352 F.3d at
503-04. This is because, as the First Circuit stated,
“the jury found that each defendant had possessed a
machine gun in furtherance of a drug-trafficking
scheme.” Cruz, 352 F.3d at 504; see
also Doc. 1-1, p. 47. The First Circuit affirmed Mr.
Luga-Velez's conviction and sentence. Cruz, 352
F.3d at 502.
Luga-Velez challenged his conviction and sentence via a
§ 2255 motion. See USA v. Gonzalez-Bernard, et
al., No. 3:01-cr-00717-CCC-2 (D. Puerto Rico) at Doc.
The presiding district court denied Mr. Luga-Velez's
first § 2255 motion. See USA v. Gonzalez-Bernard, et
al., No. 3:01-cr-00717-CCC-2 (D. Puerto Rico) at Doc.
108. Mr. Luga-Velez asked the First Circuit Court of Appeals
for permission to file a second motion under § 2255.
See USA v. Gonzalez-Bernard, et al., No.
3:01-cr-00717-CCC-2 (D. Puerto Rico) at Doc. 231. The First
Circuit denied the application, stating that the case upon
which Mr. Luga-Velez relied for relief, Rosemond v.
United States, 134 S.Ct. 1240 (2014), did not apply
retroactively to cases on collateral review. See USA v.
Gonzalez-Bernard, et al., No. 3:01-cr-00717-CCC-2 (D.
Puerto Rico) at Doc. 231; see also 28 U.S.C. §
2255(h)(2). The respondent concedes that Rosemond is
a retroactively applicable change in a substantive rule, as
Mr. Luga-Velez asserts. (Doc. 9, p. 11, n. 3).
Luga-Velez filed this § 2241motion in this district
court on June 30, 2014. (Doc. 1). In support of his motion,
Mr. Luga-Velez again relies on the Supreme Court's
Rosemond decision. (Doc. 1, pp. 6-11). Mr.
Luga-Velez asserts that because the Supreme Court announced a
substantive rule in Rosemond which applies
retroactively to his conviction and because his argument for
relief under Rosemond was foreclosed at the time of
his trial, appeal, and initial § 2255 petition, the
Court has jurisdiction to consider this § 2241 habeas
petition pursuant to the savings clause in 28 U.S.C. §
2255(e). (See Doc. 1, pp. 8-9, 11-14). The Court
federal district court must examine its subject matter
jurisdiction sua sponte if the court
determines that it may lack subject matter jurisdiction over
an action. Univ. of S. Ala. v. Am. Tobacco Co., 168
F.3d 405, 410 (11th Cir. 1999). The savings clause in 28
U.S.C. § 2255(e) operates as a limit on a district
court's subject matter jurisdiction over motions that
federal prisoners file under § 2241. Samak v.
Warden, FCC Coleman-Medium, 766 F.3d 1271, 1273 (11th
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. § 2255(e).
Court may not entertain Mr. Luga-Velez's § 2241
petition because Mr. Luga-Velez may present the arguments he
makes here to the district court in which he was convicted
and sentenced if the First Circuit gives him permission to
pursue a new § 2255 motion based on Rosemond.
See, e.g., Bartelho v. United States, 2016
WL 9584199 *2 (1st Cir. 2016) (concluding Rosemond
claim was subject to the gatekeeping requirements of §
2255(h)); Rosa-Carino v. United States, 2015 WL
274165, *3-4 (D. Puerto Rico Jan. 22, 2015) (addressing
merits of § 2255 Rosemond claim).
the Eleventh Circuit, sitting en banc, held that a
petitioner may not bring as part of a § 2241 habeas
petition a claim that can be reviewed through a motion to
vacate under 28 U.S.C. § 2255. McCarthan v. Director
of Goodwill Industries-Suncoast, Inc., 851 F.3d 1076,
1099 (11th Cir. 2017) (“A motion to vacate is
inadequate or ineffective to test the legality of a [federal]
prisoner's detention only when it cannot remedy a
particular kind of claim. Even if a prisoner's claim
fails under circuit precedent, a motion to vacate remains an
adequate and effective remedy for a prisoner to raise the
claim and attempt ...