Opinion
C/A No. 8:19-cv-1344-HMH-JDA
05-15-2019
Daniel Lynn Brown, Jr., Petitioner, v. Bryan Antonelli, Warden of FCI Williamsburg, Respondent.
REPORT AND RECOMMENDATION
Daniel Lynn Brown, Jr., ("Petitioner") is a prisoner in the custody of the Federal Bureau of Prisons and is currently incarcerated in South Carolina at the Williamsburg Federal Correctional Institution. Proceeding pro se, Petitioner brings this habeas corpus action pursuant to 28 U.S.C. § 2241. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned Magistrate Judge is authorized to review such petitions for relief and submit findings and recommendations to the District Court. For the reasons below, the Petition is subject to summary dismissal.
BACKGROUND
Petitioner's Conviction, Sentence, and Direct Appeal
On March 31, 2006, Petitioner pled guilty to Counts 1, 4, 5, and 15 of a superseding indictment in the United States District Court for the Southern District of Iowa for conspiracy to distribute methamphetamine at Count 1, possession with intent to distribute methamphetamine at Count 4, possession of a firearm in furtherance of a drug trafficking crime at Count 5, and possession of a firearm in furtherance of a drug trafficking crime at Count 15. [Doc. 1 at 1-2]; United States v. Brown, No. 4:05-cr-00227-RP-CFB-1 (S.D.
Iowa Mar. 31, 2006), Docs. 75; 77. On December 7, 2007, the Honorable Ronald E. Longstaff sentenced Petitioner to a term of imprisonment of 150 months as to Counts 1 and 4 of the superseding indictment to run concurrently with each other, a term of imprisonment of 60 months as to Count 5 of the superseding indictment to run consecutively with the other counts, and a term of imprisonment of 300 months as to Count 15 of the superseding indictment to run consecutively with the other counts, resulting in a total term of imprisonment of 510 months. [Doc. 1 at 2]; United States v. Brown, No. 4:05-cr-00227-RP-CFB-1 (S.D. Iowa Dec. 7, 2007), Docs. 116; 118.
The Court takes judicial notice of the records in Petitioner's criminal case in the Southern District of Iowa at case no. 4:05-cr-00227-RP-CFB-1. See Philips 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.'").
Petitioner contends that he directed his trial counsel to file a direct appeal from the judgment entered on December 7, 2007, but counsel failed to file an appeal. [Doc. 1 at 2.] Petitioner then filed a motion pursuant to 28 U.S.C. § 2255 alleging that trial counsel was ineffective for failing to file an appeal, among other things. [Id.]; United States v. Brown, No. 4:05-cr-00227-RP-CFB-1 (S.D. Iowa Dec. 7, 2007), Docs. 116; 118. On September 8, 2010, the sentencing court granted Petitioner's § 2255 motion and, finding that trial counsel was ineffective for failing to file a direct appeal, vacated the judgment entered on December 7, 2007, for the sole purpose of restarting the period in which Petitioner could seek an appeal. United States v. Brown, No. 4:05-cr-00227-RP-CFB-1 (S.D. Iowa Sept. 8, 2010), Doc. 163 at 7. The sentencing court entered an amended judgment on September 10, 2010, with the same terms and conditions as the original judgment. United States v. Brown, No. 4:05-cr-00227-RP-CFB-1 (S.D. Iowa Sept. 8, 2010), Doc. 165. Petitioner then filed a direct appeal, and, on January 11, 2011, the United States Court of Appeals for the Eighth Circuit dismissed the appeal. [Doc. 1 at 2]; United States v. Brown, No. 10-3094 (8th Cir. 2011).
The docket for Petitioner's first motion pursuant to 28 U.S.C. 2255 can be found at Brown v. United States, No. 4:08-cv-00489-REL (S.D. Iowa Dec. 4, 2008).
Petitioner then sought a retroactive reduction of his sentence pursuant to 18 U.S.C. § 3582; however the sentencing court denied his motion on October 15, 2015, and subsequently denied Petitioner's motion for reconsideration. See United States v. Brown, No. 4:05-cr-00227-RP-CFB-1 (S.D. Iowa Oct. 15, 2015), Docs. 203; 206.
Petitioner's § 2255 Motions
On December 4, 2017, Petitioner filed his second motion pursuant to 28 U.S.C. § 2255 in the sentencing court, challenging his conviction and sentence at Counts 5 and 15. [Doc. 1 at 2]; Brown v. United States, No. 4:17-cv-00425-RP (S.D. Iowa Dec. 4, 2017), Doc. 1. Petitioner's § 2255 motion was dismissed as a successive petition on December 6, 2017. Brown v. United States, No. 4:17-cv-00425-RP (S.D. Iowa Dec. 6, 2017), Doc. 2. The Eighth Circuit Court of Appeals then denied Petitioner's request for authorization to file a successive habeas application. Brown v. United States, No. 19-1039 (8th Cir. Mar. 11, 2019).
On March 21, 2019, Petitioner again filed a motion pursuant to 28 U.S.C. § 2255 in the sentencing court, in which he filed an identical petition to the one he now files in this Court. Brown v. United States, No. 4:19-cv-00086-RP (S.D. Iowa Mar. 21, 2019), Doc. 1. Petitioner's § 2255 motion was again dismissed by the sentencing court as a successive petition on April 12, 2019. Brown v. United States, No. 4:19-cv-00086-RP (S.D. Iowa Apr. 12, 2019), Doc. 3.
The undersigned finds the sentencing court's ruling on Petitioner's most recent § 2255 motion instructive as to the arguments he makes before this Court:
[E]ven if procedural issues did not prevent this Court from reaching the merits of [Petitioner]'s claim, he is not entitled to relief. [Petitioner] argues that his second conviction under § 924(c), imposing a consecutive mandatory minimum sentence of 300 months, is now unlawful following changes to second or subsequent convictions made by section 403 of the First Step Act of 2018. Pub. L. No. 115-391, sec. 403, § 924(c), 132 Stat. 5194, 5221-22 (2018). [Petitioner] is correct that the First Step Act amended 18 U.S.C. § 924(c)(1)(C) "by striking 'second or subsequent conviction under this subsection' and inserting 'violation of this subsection that occurs after a prior conviction under this subsection has become final.'" Id. sec. 403(a). Further, at the time of his sentencing in 2005, [Petitioner] had never previously been convicted of a violation of § 924(c), such that he would not have had a "prior conviction" to trigger the increased 300-month sentence. When Congress changes laws prospectively, however, those changes are not automatically retroactive and do not entitle those convicted under previous versions of a law to relief. See 1 U.S.C. § 109 ("The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide . . . ."); see also United States v. Orr, 636 F.3d 944, 957-58 (8th Cir. 2011) (explaining that changes in criminal penalties are only retroactive when the operative act explicitly states the change is retroactive). The First Step Act provides that the changes to § 924(c) "apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment." Sec. 403(b), 132 Stat. at 5222. [Petitioner]'s sentence was imposed in 2007, well before the First Step Act was passed. Congress did not make the Act further retroactive to sentences already final, and retroactivity is conditioned "on Congress's express provision within the legislation for its retroactive application." Orr, 636 F.3d at 957-58. Section 403 of the Act contains only an express provision that it applies to offenses in which a sentence has not yet been imposed, not for those defendants who have already been sentenced. It therefore does not apply to [Petitioner] and does not serve as an avenue for relief.Brown v. United States, No. 4:19-cv-00086-RP (S.D. Iowa Apr. 12, 2019), Doc. 3 at 2-3.
Petitioner's Present Action
Petitioner now seeks habeas relief from his sentence pursuant to 28 U.S.C. § 2241, claiming that a successive § 2255 motion would be inadequate or ineffective and that he meets the savings clause test. [Doc. 1 at 3.] Specifically, Petitioner challenges the legality of his sentence for the § 924(c) charge at Count 15 of the superseding indictment in light of the First Step Act. [Id.] For his relief, Petitioner requests that the Court vacate his 300-month sentence at Count 15 of the superseding indictment. [Id. at 6.]
APPLICABLE LAW
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings pursuant to the procedural provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, however, the Petition is subject to summary dismissal.
Furthermore, this Court is charged with screening Petitioner's lawsuit to determine if "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4 of Rules Governing Section 2254 Cases in the United States District Courts. Following the required initial review, it is recommended that the Petition submitted in this case should be dismissed.
DISCUSSION
Petitioner's Argument
Petitioner presents a single ground for relief in the instant habeas action, alleging that he is entitled to have his 300-month sentence vacated as to his conviction at Count 15 of the superseding indictment. [Doc. 1 at 1.] This is so, according to Petitioner, because he was found guilty of two § 924(c) firearm offenses in the same superseding indictment without a prior § 924(c) conviction. [Id. at 3.] As such, Petitioner contends, his sentence at Count 15 is unlawful in light of the First Step Act. [Id.] Petitioner argues that the First Step Act clarifies the language of § 924(c) to prohibit stacking. [Id.] According to Petitioner, because the First Step Act clarifies that the statute does not permit a sentence for a second or subsequent § 924(c) conviction arising from the same underlying conviction, his sentence as to Count 15 for the second § 924(c) conviction must be vacated. [Id. at 6.] Based on these reasons, Petitioner asserts that § 2255 is inadequate and ineffective to test the legality of his sentence and that he meets the Fourth Circuit's savings clause test announced in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018). [Id. at 4-6.]
Analysis
"[D]efendants 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)). Accordingly, Petitioner cannot challenge his federal conviction and sentence under § 2241 unless he can satisfy the § 2255 savings clause, which states:
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). In other words, as applied here, Petitioner's § 2241 action is barred unless he can demonstrate that the relief available to him under § 2255 is inadequate or ineffective. Petitioner was unsuccessful in seeking relief under § 2255 in the sentencing court. "However, the remedy afforded by § 2255 is not rendered inadequate or ineffective merely because an individual has been unable to obtain relief under that provision, or because an individual is procedurally barred from filing a § 2255 motion." In re Vial, 115 F.3d at 1194 n.5 (citation omitted).
The Fourth Circuit recently established a test for evaluating whether a petitioner may meet the savings clause under § 2255 when he contests his sentence:
[Section] 2255 is inadequate and ineffective to test the legality of a sentence when: (1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to meet the gatekeeping provisions of § 2255(h)(2) for second or successive motions; and (4) due to this retroactive change, the
sentence now presents an error sufficiently grave to be deemed a fundamental defect.Wheeler, 886 F.3d at 429. Thus, for Petitioner to be entitled to relief from his sentence under § 2241, he must satisfy this savings clause test, which is a jurisdictional requirement under § 2255. Id. at 426 (explaining that "the savings clause requirements are jurisdictional"). The Court may consider sua sponte whether it possesses subject matter jurisdiction, and the Fourth Circuit has held that, if a petitioner cannot meet the savings clause requirements, then the § 2241 petition "must be dismissed for lack of jurisdiction." Rice, 617 F.3d at 807. Therefore, the Court must evaluate whether Petitioner meets the new four factor savings clause test announced in Wheeler.
Petitioner appears to be able to meet the first requirement that his sentence was legal at the time of sentencing. However, Petitioner cannot meet the second element because the First Step Act does not apply retroactively.
Petitioner contends that, following his trial, sentence, direct appeal, and first § 2255 motion, Congress enacted the First Step Act, prohibiting the procedure of stacking multiple § 924(c) charges in the same indictment. [Doc. 1 at 3.] Nevertheless, Petitioner's argument, that his sentence must be vacated because the First Step Act of 2018 changed the law under which he was convicted and sentenced, is without merit.
On December 21, 2018, President Donald Trump signed into law the First Step Act of 2018. See Statement by the President, 2018 WL 6715861, at *1. Among other things, the First Step Act amended the language of 18 U.S.C. § 924(c)(1)(C) by striking "second or subsequent conviction under this subsection" and inserting "violation of this subsection that occurs after a prior conviction under this subsection has become final." First Step Act of 2018 § 403(a), Pub. L. 115-391, 132 Stat. 5194, 5221-22 (2018). Essentially, the amendment eliminates the procedure of stacking multiple § 924(c) charges in the same indictment to qualify for the 25-year mandatory minimum for a second or subsequent conviction under § 924(c)(1)(C)(i). Under the old version of the statute, which was applicable at the time of Petitioner's conviction and sentence, a defendant could be convicted of multiple § 924(c) charges at the same time, resulting in higher mandatory minimum penalties for each subsequent count, even if he had no prior § 924(c) convictions. Under the amended statute, the enhanced mandatory minimum applies only if the prior qualifying § 924(c) conviction was final under a prior conviction.
Here, Petitioner was sentenced under the old version of the statute, meaning that his conviction for the first § 924(c) charge at Count 5 could qualify as a predicate conviction for the second § 924(c) charge at Count 15, triggering the mandatory minimum penalties under § 924(c)(1)(C)(i). Petitioner contends that, because of the change in the law, his sentence is fundamentally unfair and violates the Constitution. [Doc. 1 at 5.] However, while the substantive law under which Petitioner was sentenced has changed, that change was not made retroactive as required under Wheeler. This is so because the First Step Act provides, "This section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment." First Step Act of 2018 § 403(b), 132 Stat. 5222. Because the change in substantive law does not apply retroactively, Petitioner cannot satisfy the requirements of Wheeler.
The Court notes that the amended statute eliminates harsh sentencing penalties in cases such as this one. However, while the Court may be sympathetic to Petitioner's challenge to the imposition of the enhanced sentence as applied in his case, the sentencing court was bound by the law. As the Fourth Circuit noted in Wheeler,
In the federal system, "defining crimes and fixing penalties are legislative, not judicial, functions." United States v. Evans, 333 U.S. 483, 486 (1948) (footnote omitted). Congress alone can set maximum and minimum terms of imprisonment, see id., and those limits define legal boundaries for the punishment for a particular crime. See Williams v. New York, 337 U.S. 241, 247 (1949) ("A sentencing judge" determines the "type and extent of punishment" within "fixed statutory or constitutional limits"); Hunter v. Fogg, 616 F.2d 55, 61 (2d Cir. 1980) ("If in fact the legislature has circumscribed the judge's discretion by specifying a mandatory minimum sentence, fundamental fairness requires that the defendant be so informed.").Wheeler, 886 F.3d at 430 (parallel citations omitted). Here, the sentencing court imposed a sentence dictated by the law, and, although Congress has amended the statute under which Petitioner was sentenced, that change is prospective and not retroactive. Accordingly, Petitioner cannot satisfy the test in Wheeler.
Numerous courts that have evaluated arguments similar to those made here by Petitioner have concluded that such arguments fail to satisfy the requirements of Wheeler because the First Step Act does not provide for the retroactive application for a substantive change in the law. See, e.g., Smith v. Gomez, No. 5:19-cv-145, 2019 WL 1930128, at *2 (N.D.W. Va. Apr. 30, 2019) ("Unfortunately for the petitioner, the application of the First Step Act to § 924(c) is limited 'to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment' [December 21, 2018]. Inasmuch as the petitioner is unable to satisfy the second element of Wheeler, he may not take advantage of the savings clause of § 2255(e).") (emphasis omitted); Mickles v. United States, No. 6:19-cv-060-CHB, 2019 WL 1995329, at *3 (E.D. Ky. May 6, 2019) ("[B]ecause the relevant provision of the First Step Act does not apply retroactively, it necessarily does not provide an intervening change in statutory law that is applicable to Mickles, such that he may proceed under 28 U.S.C. § 2241.").
Petitioner has not demonstrated that, under Wheeler, a motion filed pursuant to § 2255 is inadequate or ineffective to test the legality of his sentence thereby allowing him to file a § 2241 petition. Accordingly, this Court is without jurisdiction to consider the Petition.
RECOMMENDATION
Therefore, it is recommended that the § 2241 Petition be dismissed without prejudice and without requiring the Respondent to file an answer or return. Petitioner's attention is directed to the important notice on the next page.
See Platts v. O'Brien, 691 F. App'x 774 (4th Cir. June 22, 2017) (citing S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) ("A dismissal for . . . [a] defect in subject matter jurisdiction[ ] must be one without prejudice, because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits.")).
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge May 15, 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
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).