Opinion
Civil Action No. 6:19-1544-BHH-KFM
06-05-2019
Travis Lemont Barksdale, Petitioner, v. Warden, FCI Williamsburg, Respondent.
REPORT OF MAGISTRATE JUDGE
The petitioner, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2241 for habeas relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c), D.S.C., the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court. For the reasons set forth below, it is recommended that the petitioner's § 2241 petition be dismissed without prejudice and without requiring the respondent to file an answer or return.
The petitioner's § 2241 petition was entered on the docket on May 28, 2019 (doc. 1). The case is in proper form for judicial screening.
BACKGROUND
Petitioner's Conviction and Sentence
On February 23, 2009, the petitioner pled guilty in the United States District Court for the Eastern District of North Carolina to Count 1 of an indictment charging him with conspiracy to distribute and possession with the intent to distribute more than fifty grams of cocaine base (crack) and more than five kilograms of cocaine in violation of 21 U.S.C. § 846. See United States v. Barksdale, Cr. No. 5:08-382-BO-1, at doc. 29 (E.D.N.C.). On March 18, 2010, the Honorable Terrence W. Boyle sentenced the petitioner to a term of 330 months' imprisonment (with credit for time served) followed by five years of supervised release. Id. at doc. 61. The sentence included a career offender sentencing enhancement applied under USSG § 4B1.1. Id. The petitioner appealed, and subsequently voluntarily dismissed his appeal with the Fourth Circuit Court of Appeals. Id. at docs. 62; 74.
The court takes judicial notice of the records in the petitioner's criminal case in the Eastern District of North Carolina at case number 5:08-cr-00382-BO-1, as well as his related actions seeking habeas relief in the sentencing court as well as the petitioner's related actions seeking § 2241 relief in the United States District Courts for the Middle District of Florida and the Southern District of West Virginia. See Phillips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts "may properly take judicial notice of matters of public record."); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ("We note that 'the most frequent use of judicial notice is in noticing the content of court records.'").
While pursuing other avenues of relief—as discussed below—the petitioner, on May 14, 2012, filed a motion to reduce his sentence based upon United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). Id. at doc. 84. Two weeks later, the petitioner filed a second motion to reduce sentence, with the second motion based upon 18 U.S.C. § 3582(c). Id. at doc. 85. The petitioner's motions were denied on July 11, 2014, due to the quantity of drugs to which the petitioner pled guilty. Id. at doc. 139.
The petitioner then filed a sealed motion to reduce his sentence, which was denied on January 9, 2014, by the court. Id. at docs. 122; 123. The petitioner appealed, and the Court of Appeals affirmed on October 21, 2014. United States v. Barksdale, 585 F. App'x 19 (4th Cir. 2014) (mem.). Three months later, on February 2, 2015, the petitioner filed another motion, seeking a reduction in his sentence based upon Amendment 782 to the United States Sentencing Guidelines ("USSG"). United States v. Barksdale, Cr. No. 5:08-382-BO-1, at doc. 144. The motion was denied on June 22, 2016, based upon the quantity of drugs to which the petitioner pled. Id. at doc. 157.
Petitioner's § 2255 Motions
The petitioner filed his first § 2255 motion on July 10, 2012, arguing Simmons, ineffective assistance of counsel, and actual innocence (because he was no longer a career offender in light of case law disqualifying some of his prior convictions). Id. at doc. 97. He then amended his motion to clarify that he was asserting that his motion was timely. Id. at doc. 100. The petitioner's motion was denied on October 18, 2012. Id. at doc. 117. The order indicated that the petitioner could not seek relief under Simmons because Simmons was not retroactive on collateral review. Id. The order continued that even if Simmons were retroactive, it provided the petitioner with no relief because the petitioner's guideline range would exceed the offense level required by the career offender designation. Id.
On May 3, 2016, the petitioner filed a motion with the Court of Appeals seeking authorization to file a successive habeas application in light of the United States Supreme Court decision in Johnson v. United States, 135 S.Ct. 2551 (2015). In re Barksdale, No. 16-521 (4th Cir. 2016). The Court of Appeals denied the petitioner's request, noting that the petitioner had two prior controlled substance offense convictions for purposes of the career offender enhancement—even disregarding his conviction for assault with a deadly weapon under Johnson. Id. at doc. 7.
Petitioner's Prior § 2241 Petitions
The petitioner has filed a total of three § 2241 habeas petitions (including the instant action) seeking relief via the savings clause provided for in § 2255. The first was filed in the United States District Court for the Middle District of Florida on February 22, 2016. See Barksdale v. Warden, FCC Closeman - USP 1, C/A No. 5:16-92-WTH-PRL (M.D. Fla.). The petitioner's § 2241 petition was dismissed on January 30, 2017, for lack of subject matter jurisdiction because the petitioner did not meet the savings clause test set forth by the Eleventh Circuit Court of Appeals. Id. at doc. 9.
The petitioner's second § 2241 petition was filed in the United States District Court for the Southern District of West Virginia on June 8, 2017. See Barksdale v. Rickard, C/A No. 1:17-3216 (S.D. W. Va.) ("West Virginia Habeas Case"). The petitioner sought relief via § 2241, arguing that (1) his prior convictions were erroneously counted as two separate convictions; thus, he should not be sentenced as a career offender, and (2) his prior under N.C. General Statute § 14-32(b) no longer qualifies as a prior for career offender enhancement under USSG § 4B1.1(a). Id. at doc. 1. On December 19, 2017, Proposed Findings and Recommendations by the United States Magistrate Judge Cheryl A. Eifert recommended construing the petitioner's § 2241 petition as a § 2255 motion and that the successive motion be denied with prejudice. Id. at doc. 18. To date, the United States District Judge has not adopted and/or rejected the Proposed Findings and Recommendations (doc. 1 at 3-4), and the case remains pending.
Petitioner's Present Action
The petitioner now seeks habeas relief pursuant to 28 U.S.C. § 2241, claiming that his sentence is unconstitutional because of ineffective assistance of counsel and because he received an erroneous enhancement under the "Career Criminal Guideline" (doc. 1). For his relief, the petitioner seeks an order releasing him and for any such relief as the court deems proper (id. at 10). The petitioner asserts that § 2255 is inadequate and ineffective to test the legality of his sentence because he filed one motion that was denied and to meet the test for permission to file a successive § 2255 motion, the petitioner would be required to show that no jury would find him guilty and that is not the nature of his claim (id. at 3).
STANDARD OF REVIEW
The undersigned has reviewed the petition pursuant to the Rules Governing Section 2254 Cases in the United States District Courts; the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214; and other habeas corpus statutes. As a pro se litigant, the petitioner's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The mandated liberal construction means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. However, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
The petitioner filed this action pursuant to 28 U.S.C. § 2241 (doc. 1). Because the petitioner is incarcerated in the District of South Carolina and he names the warden of FCI Williamsburg as the respondent, his § 2241 petition is properly filed in this Court. Liberally construing the petitioner's allegations, the petitioner seeks to utilize the § 2255 savings clause test in order to attack the validity of his federal sentence via the present § 2241 action (doc. 1).
As noted above, the West Virginia Habeas case, wherein he challenges his designation as a career offender during his 2010 sentencing, remains pending. See Barksdale v. Rickard, C/A No. 1:17-3216. Efficient judicial administration generally requires the federal courts to avoid duplicative federal legislation. See Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). Generally, a case pending in federal court "may be dismissed for reasons of wise judicial administration whenever it is duplicative of a parallel action already pending in another federal court." Nexsen Pruet, LLC v. Westport Ins. Corp., C/A No. 3:10-895-JFA, 2010 WL 3169378, at *2 (D.S.C. Aug. 5, 2010) (internal quotation marks omitted) (quoting Motley Rice, LLC v. Baldwin & Baldwin, LLP, 518 F. Supp. 2d 688, 697 (D.S.C. 2007)). Suits are considered parallel if "substantially the same parties litigate substantially the same issues in different forums." New Beckley Mining Corp. v. Int'l Union, United Mine Workers of Am., 946 F.2d 1072, 1073 (4th Cir. 1991) (citing LaDuke v. Burlington N. R.R., 879 F.2d 1556, 1559 (7th Cir. 1989)). In the West Virginia Habeas Case, Proposed Findings and Recommendations were issued on December 19, 2017. Barksdale v. Rickard, C/A No. 1:17-cv-03216, at doc. 18. The Proposed Findings and Recommendations construed the petitioner's request as a motion pursuant to § 2255 because the petition did not meet the savings clause test set forth in In re: Jones, 226 F.3d 328 (4th Cir. 2000) for a § 2241 petition; thus, the petitioner could not use the savings clause to attack the validity of his sentence—only his conviction. Id. Based upon this analysis, the Proposed Findings and Recommendations recommended denying the petitioner's petition. Id. As outlined above, here, the petitioner again challenges his career offender designation, arguing that his un-counseled priors no longer qualify as priors for purposes of the career offender enhancement, noting that "[t]here have been many decisions by courts at all levels, including the Supreme Court, within the past dozen or so years regarding the use of prior State convictions in support of Career Criminal [enhancements] (doc. 1 at 9). As such, the instant action is duplicative of the West Virginia Habeas Case: the petitioner seeks a writ of habeas corpus regarding the same criminal sentence—330 months' imprisonment; based upon the same alleged error—improper use of prior convictions to apply the career offender sentence enhancement; and seeks the same relief—re-sentencing absent the career offender enhancement. Moreover, any additional information or argument in support of his positions should be raised in his pending case in West Virginia and not here. Thus, the undersigned recommends summarily dismissing the instant petition as duplicative of the West Virginia Habeas Case.
The petitioner's instant petition is not saved by the Court of Appeals decision in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), which sets forth the savings clause test for individuals seeking § 2255 habeas review of their sentences via § 2241. Wheeler, 886 F.3d at 429. Because the petitioner's case is still pending in the West Virginia District Court, he has the opportunity to address any arguments with respect to Wheeler with that court.
RECOMMENDATION
Accordingly, it is recommended that the petitioner's § 2241 petition be dismissed without requiring the respondent to file a return. The petitioner's attention is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge June 5, 2019
Greenville, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street, Room 239
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).