Opinion
C. A. 0:21-3205-JFA-PJG
11-12-2021
Kevin Elwood Bullock, Petitioner, v. A. Mendoza, Acting Warden; FCI - Williamsburg, Respondent.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
Petitioner Kevin Elwood Bullock, a self-represented federal prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.). Having reviewed the Petition in accordance with applicable law, the court concludes that it should be summarily dismissed.
I. Factual and Procedural Background
Petitioner is an inmate at the Federal Correctional Institution Williamsburg in South Carolina. Petitioner pled guilty in the United States District Court in the Middle District of North Carolina to possession of a weapon by a felon in violation of 18 U.S.C. § 922(g)(1) and § 924(e)(1). Cr. No. 1:01-cr-294-TDS-1. The sentencing court classified Petitioner as an armed career criminal pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on three predicate North Carolina state convictions and sentenced Petitioner to 180 months' imprisonment and 5 years' supervised release. Petitioner did not file a direct appeal of his conviction or sentence, but he filed a motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255 in March 2003 that was ultimately denied by the sentencing court. (Cr. No. 1:01-cr-294-TDS-1, M.D. N.C., ECF No. 23.) Petitioner filed two other § 2255 motions in the sentencing court in 2 and 2020 that were summarily dismissed for failure to seek authorization to file a second or successive § 2255 motion in the United States Court of Appeals for the Fourth Circuit.
Petitioner now files this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner argues his sentence is unlawful in light of Johnson v. United States, 576 U.S. 591 (2015), which held that the residual clause of the ACCA that defined “crime of violence” was unconstitutionally vague, and Parral-Dominguez, 794 F.3d 440 (4th Cir. 2015), which held that a North Carolina state conviction for shooting into an occupied building did not qualify as a crime of violence under the United States Sentencing Guidelines. Petitioner argues that because two of his predicate North Carolina convictions used to support his armed career criminal designation were for shooting into an occupied building, the designation is unlawful in light of Johnson and Parral-Dominguez.
II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in this case pursuant to the Rules Governing § 2254 Cases, 28 U.S.C. § 2254; the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104132, 110 Stat. 1214; and 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).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
This court is required to liberally construe pro se pleadings, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, 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 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
B. Analysis
A petitioner cannot challenge his federal conviction and sentence through § 2241 unless he can show under the “savings clause” of § 2255(e) that a § 2255 motion is “inadequate or ineffective to test the legality of his detention.” See 28 U.S.C. § 2255(e); see also Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (providing that if a federal prisoner brings a § 2241 petition that does not fall within the scope of the savings clause, the district court must dismiss the unauthorized habeas petition for lack of jurisdiction). The United States Court of Appeals for 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 sentence:
(1) [A]t 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.United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018).
Here, Petitioner fails to meet the test in Wheeler to challenge his sentence pursuant to § 2241. First, Petitioner relies on Johnson v. United States, 576 U.S. 591 (2015), to support his claim that his sentence has been rendered retroactively unlawful. But, to the extent Petitioner has a valid claim based on Johnson, the claim fails to meet the third element of the test in Wheeler because the United States Supreme Court has held that Johnson is a new rule of constitutional law, made retroactive on collateral review, that was previously unavailable. See Welch v. United States, 578 U.S. 120 (2016). Therefore, to the extent Petitioner has a meritorious claim pursuant to Johnson, he must raise it in a § 2255 motion.
Second, as to Petitioner's reliance on United States v. Parral-Dominguez, 794 F.3d 440 (4th Cir. 2015), this case does not aide Petitioner here. In Parral-Dominguez, the Fourth Circuit found that a North Carolina state conviction for discharging a weapon into an occupied dwelling, N.C. G.S.A. § 14-34.1(a), was not a crime of violence under United States Sentencing Guidelines § 2L1.2 (relating to unlawful entry in immigration cases). Here, Petitioner was deemed an armed career criminal based on the ACCA, not the United States Sentencing Guidelines. But even assuming Parral-Dominguez qualifies as a change in the law that would apply to Petitioner's sentence, Parral-Dominguez has not been deemed to apply retroactively on collateral review. See, e.g., Ross v. Meeks, C/A No. 5:15-cv-02755-CMC-KDW, 2016 WL 3545534, at *6 (D.S.C. June 6, 2016), report and recommendation adopted, 2016 WL 3523875 (D.S.C. June 28, 2016). Accordingly, Petitioner cannot meet the second element of the Wheeler test based on Parral-Dominguez.
Because Petitioner is foreclosed from bringing a § 2241 habeas petition in this court to challenge his sentence, Petitioner's remedy, if any, appears to be to seek permission to file a § 2255 motion in the court in which he was sentenced by filing a motion for leave to file a successive § 2255 motion in the Fourth Circuit. See 28 U.S.C. § 2255(h). Therefore, this case should be dismissed because this court lacks jurisdiction over the Petition. See Wheeler, 886 F.3d at 426 (holding that the failure to meet the requirements of the savings clause is a jurisdictional defect that may not be waived).
III. Conclusion
Accordingly, the court recommends that the Petition in the above-captioned case be dismissed without prejudice and without requiring the respondent to file a return.
The parties' attention is directed to the important notice on the next page.
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
901 Richland Street
Columbia, South Carolina 29201
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).