Opinion
C/A 5:23-1689-HMH-KDW
07-13-2023
Michael Beaver, Petitioner, v. United States of America, Respondent.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
Michael Beaver (“Petitioner”), proceeding pro se, filed a Petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner is a federal inmate incarcerated at FCI Edgefield in the custody of the Federal Bureau of Prisons. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. 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 judge. For the reasons that follow, the undersigned recommends that the district judge dismiss the Petition in this case without prejudice.
I. Factual and Procedural Background
Petitioner was sentenced in 2005 to a 15-year term of incarceration for a Florida state court conviction. See Beaver v. United States, C/A No.: 3:21-cv-00728-TJC-JBT (M.D. Fl. Sept. 14, 2021), ECF No. 3. On March 2, 2010, Petitioner entered a guilty plea to two counts of mailing a threatening communication, and one count of mailing a threatening communication to a federal judge. United States v. Beaver, C/A No.: 8:07-cr-00313-JDW-TGW (M.D. Fl. Sept. 9, 2010), ECF Nos. 82, 84. On September 9, 2010, the district court sentenced Petitioner to a total term of 77-months imprisonment. Id., ECF No. 106. The court also recommended Petitioner's federal sentence begin immediately and run concurrent with Petitioner's state court sentence he was currently serving. Id. at 2. In the Petitioner before this court, Petitioner states he has not filed a motion to vacate judgment under 28 U.S.C. § 2255. ECF No. 1 at 4. Petitioner also states he did not file an application to file a second or successive § 2255 motion as he thinks he is out of time. Id. at 4. Petitioner filed the instant Petition seeking to be released alleging he is still in prison for a threat letter sent in 2002. Id. at 5.
II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of this Petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court,the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, and other habeas corpus statutes. Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a pleading filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se pleading, the pleader's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 39091 (4th Cir. 1990).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
B. Analysis
Petitioner alleges he has newly discovered evidence of false imprisonment. ECF No. 1-5 at 1.Petitioner contends
It is not clear from the instant Petition if Petitioner is currently serving his 77-month sentence that was imposed by the Florida district court on September 9, 2010, or if Petitioner is serving another sentence.
I am a winning case though your honor too because the government originally and continued to give me same charges and gave me a life sentence, the beginning was double jeopardy and how it's still double jeopardy to where I'm still incarcerated 23 years later, newly discovered evidence your honor. The courts are ignoring that I am held on Double Jeopardy because this is a pattern of the ideologies of contempt because I'm proving I got grounds for relief and emergency release. The constitution requires that I get a fair legal system to retain rightful freedom.Id. Petitioner argues Judge Rex violated federal law and conspired to give Petitioner a life sentence making Petitioner unable to pursue legal action to show he is being held in violation of double jeopardy and falsely imprisoned for 24 years. Id. at 1-2.
“[I]t is well established that defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255.” Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citing In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997)). In contrast, a motion filed under § 2241 is typically used to challenge the manner in which a sentence is executed. See In re Vial, 115 F.3d at 1194 n.5. A petitioner cannot challenge his federal conviction and sentence under § 2241 unless he can satisfy the § 2255 savings clause as follows:
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); see also Rice, 617 F.3d at 807 (finding court lacked jurisdiction over § 2241 petition outside savings clause).
The Fourth Circuit has held that a petitioner must establish the following criteria to demonstrate that a § 2255 motion is inadequate or ineffective to test the legality of a prisoner's detention:
(1) at the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law.In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000).
The undersigned finds the court lacks jurisdiction to consider Petitioner's § 2241 Petition, as he cannot show that § 2255 is inadequate to test the legality of his conviction. Petitioner has not satisfied the second prong of the In re Jones criteria, as he has not filed a direct appeal or his first § 2255 motion. Nor has Petitioner cited to any case law that demonstrates a change in settled substantive law that made the conduct of which he was convicted not criminal. Petitioner, therefore, is unable to show that settled substantive law changed “subsequent to [his] direct appeal and first § 2255 motion.” In re Jones, 226 F.3d at 334. To the extent Petitioner argues that his § 2255 remedy is inadequate or ineffective because his time to file a § 2255 motion has expired, this argument is without merit. The Fourth Circuit has unequivocally held that “§ 2255 is not inadequate or ineffective merely because an individual is unable to obtain relief under that provision.” In re Jones, 226 F.3d at 333-34; In re Vial, 115 F.3d at 1194 n.5 (finding that a procedural impediment to § 2255 relief, such as the statute of limitations or the rule against successive petitions, does not render § 2255 review “inadequate” or “ineffective”). Because Petitioner's claims cannot be addressed under § 2241, the undersigned recommends his Petition be summarily dismissed.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge dismiss the Petition in the above-captioned matter without prejudice.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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
Post Office Box 2317
Florence, South Carolina 29503
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).