We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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Gurmeet Singh Dhinsa was convicted of racketeering and murdering a witness to keep him from talking to federal agents. Years later, he filed a 28 USC 2241 habeas petition under the “savings clause” in 28 USC 2255(e), arguing that under the Supreme Court’s 2011 Fowler v. United States decision the government had to show that the murder victim was “reasonably likely” to have communicated with a federal official had he not been murdered. Because it could not, Gurmeet said, he was innocent of the offense.

Last week, the 2nd Circuit dismissed Gurmeet’s petition for lack of jurisdiction. Under the “savings clause,” a court only has jurisdiction to hear the 2241 motion if “the remedy by motion is inadequate or ineffective to test the legality of his detention.” The showing required includes being able to prove a change in the law makes the prisoner actually innocent of the offense.

The Circuit held Gurmeet had failed to show his innocence under Fowler, because his “extensive racketeering enterprise represents a type of criminal activity that is commonly investigated and prosecuted by federal officials.” Thus, the Court ruled, a juror could have reasonably found that Gurmeet’s two victims were “reasonably likely” to have called federal officials about federal crimes.

Because Gurmeet could not show actual innocence, the trial court correctly held he had failed to meet the requirements of the 2255(e) savings clause. The test is jurisdictional, meaning that the courts had no power to hear Gurmeet’s petition.

Dhinsa v. Krueger, 2019 U.S. App. LEXIS 4865 (2nd Cir. Feb. 20, 2019)

– Thomas L. Root