Opinion
C. A. 6:22-cv-03700-SAL-KFM
12-09-2022
Orlando Juarez Cardenas, Petitioner, v. Hansen Jenson, Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States 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.
BACKGROUND
Petitioner's Conviction and Sentence
The petitioner is currently serving a three hundred and twenty four month sentence (concurrent with a supervised release revocation sentence) imposed after pleading guilty to possession with intent to distribute 50 grams or more of methamphetamine and aiding and abetting. See United States v. Cardenas, C/A No. 6:17-cr-00006-H-BU (N.D. Tex.). The petitioner pled guilty pursuant to a plea agreement and was sentenced on July 21, 2017. Id. at docs. 30; 52; 53. The petitioner appealed, and the Fifth Circuit dismissed his appeal as frivolous. Id. at docs. 55; 71; United States v. Cardenas, C/A No. 17-11309 (5th Cir. Oct. 19, 2018).
The court takes judicial notice of the records in the petitioner's related filings in other United States District and Circuit Courts. See Phillips v. Pitt Cnty. 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.'”).
On March 15, 2021, in the sentencing court, the petitioner filed a motion to appoint counsel in relation to newly discovered evidence. Cardenas, C/A No. 6:17-cv-00006-H-BU, at doc. 76. The petitioner's motion and a motion for reconsideration were denied. Id. at docs. 77; 78; 79. On January 3, 2022, in the sentencing court, the petitioner filed a motion to dismiss the indictment in his case. Id. at doc. 83. On November 14, 2022, the petitioner's motion was dismissed without prejudice to the petitioner's right to seek authorization from the Fifth Circuit Court of Appeals to file a successive motion under § 2255. Id. at doc. 85.
Petitioner's § 2255 Motions
On July 23, 2018, the petitioner filed his first § 2255 motion. Cardenas, C/A No. 6:18-cv-00032-C, at doc. 1 (N.D. Tex.). In the motion, the petitioner asserted ineffective assistance of counsel (“IAC”) for failing to investigate, for incompetent representation, for performing deficiently at sentencing, failing to file a notice of appeal, filing an Anders brief, as well as independent grounds for relief based upon an inadequate factual basis for the guilty plea, no knowledge of the advantages and disadvantages of pleading guilty, and that his sentence was improperly calculated. Id. Because the petitioner's direct appeal was still pending at the time he filed his motion, the Honorable Sam R. Cummings, Senior United States District Judge, granted a motion to stay the consideration of the § 2255 motion until the petitioner's direct appeal was ruled upon. Id. at doc. 8. The petitioner appealed that ruling and the appeal was dismissed as moot on December 31,2018. Id. at doc. 18; United States v. Cardenas, C/A No. 18-11424 (5th Cir. Dec. 31, 2018). On July 2, 2019, the petitioner's motion was denied. Cardenas, C/A No. 6:18-cv-00032-C, at docs. 30; 31. The petitioner appealed, but his motion for a certificate of appealability and for leave to proceed in forma pauperis on appeal were denied and the appeal dismissed. United States v. Cardenas, C/A No. 19-10928 (5th Cir. Oct. 19, 2020).
The petitioner then filed a second motion pursuant to § 2255 on August 19, 2021. Cardenas, C/A No. 6:21-00054-H (N.D. Tex.). Because the motion was successive, on August 23, 2021, the petitioner's motion was transferred to the Fifth Circuit Court of Appeals to see if a successive motion should be authorized. Id. at doc. 4; In re: Orlando Cardenas, C/A No. 21-10855 (5th Cir.). On December 3, 2021, the petitioner's motion was denied by the Fifth Circuit. In re: Orlando Cardenas, C/A No. 21-10855.
Petitioner's Present Action
Here, liberally construed, the petitioner seeks to use the Jones savings clause test in order to collaterally attack his conviction based upon actual innocence (doc. 1). As Ground One for relief, the petitioner claims actual innocence based upon plea counsel receiving calls and messages from unidentified individuals with information to prove that the petitioner was innocent (id. at 8). Ground Two for relief is that the government used perjured testimony before the grand jury, which tainted the entire case based upon the fruit of the poisonous tree doctrine (id.). Ground three for relief is that the confidential informant that was the crux of the petitioner's charge was never verified (id. at 9). For relief, the petitioner seeks to have his conviction overturned and that he be released (id.).
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) (percuriam). 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 Edgefield 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 conviction, arguing that he is actually innocent of the crime (doc. 1). As set forth in more detail below, the petition should be dismissed without prejudice and without requiring the respondent to file an answer or return.
As affirmed in Wheeler, the § 2255 savings clause test is jurisdictional. United States v. Wheeler, 886 F.3d 415, 426 (4th Cir. 2018). The court may sua sponte raise subject matter jurisdiction, and the Court of Appeals has held that if a petitioner cannot meet the savings clause requirements, then the § 2241 petition “must be dismissed for lack of jurisdiction.” Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010). Because the § 2255 savings clause is a jurisdictional requirement, an analysis of whether the petitioner meets the savings clause test is appropriate for initial review under § 1915.
Unlike a § 2255 motion, which is filed in the trial and sentencing court, a § 2241 petition is filed in the district where the petitioner is incarcerated. See 28 U.S.C. § 2241(a); In re: Jones, 226 F.3d 328, 332 (4th Cir. 2000). “Generally, a § 2241 petition ‘attacks the execution of a sentence rather than its validity,' whereas a § 2255 motion ‘attacks the legality of detention.'” Rice v. Lamanna, 451 F.Supp.2d 755, 758 (D.S.C. 2006) (quoting Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)); see United States v. Miller, 871 F.2d 488, 489-90 (4th Cir. 1989) (distinguishing between attacks to the “computation and execution of the sentence rather than the sentence itself”). Thus, “defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255.” Rice v. Rivera, 617 F.3d at 807 (citing In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997)). However, § 2255 includes a savings clause, which permits a district court to consider a § 2241 petition challenging the validity of the prisoner's conviction or sentence when § 2255 is “inadequate or ineffective to test the legality of . . . detention.” 20 U.S.C. § 2255(e); Jones, 226 F.3d at 333. Accordingly, the petitioner cannot challenge his federal conviction and sentence under § 2241 unless he can satisfy the requirements of 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, the petitioner's § 2241 action is barred unless he can demonstrate that the relief available to him under § 2255 is inadequate or ineffective. Here the petitioner was unsuccessful in seeking relief under § 2255 in the sentencing court; nevertheless, “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.” See In re Vial, 115 F.3d at 1194 n.5 (citations omitted).
To trigger the “savings clause” of § 2255(e) and proceed under § 2241, the petitioner must meet the savings clause test as contemplated in United States v. Wheeler, 886 F.3d 415 (challenges to sentences) or In re Jones, 226 F.3d 328 (challenges to convictions). Here, the petitioner challenges his convictions; thus, to proceed he must meet the savings clause test set forth in In re Jones. In In re Jones, the Court of Appeals held that in order to meet the savings clause under § 2255 when contesting the underlying validity of a federal criminal conviction, and seek relief under § 2241, a petitioner must show that
(1) at the time of the 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 gate-keeping provisions of § 2255 because the new rule is not one of constitutional law.In re Jones, 226 F.3d 333-34. Here, the petitioner's allegations do not satisfy the In re Jones requirements because he has not alleged a change in the law - much less alleged that the conduct for which he was convicted is no longer criminal based on a change in the law. Moreover, to the extent the petitioner argues “actual innocence,” his claims still fail because he has not met the savings clause test. See Garcon v. Cruz, C/A No. 6:14-cv-00072-RMG, 2014 WL 819467, at *1 (D.S.C. Feb. 28, 2014), aff'd 581 Fed.Appx. 193 (4th Cir. 2014) (noting that a petitioner may not bring a freestanding actual innocence claim under § 2241 if he cannot meet the savings clause test (internal citations omitted)).
Nevertheless, the petitioner's actual innocence claim would still fail if considered independently. Cognizable claims of “actual innocence” are rare, and must be based on “factual innocence not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998); see also United States v. Pettiford, 612 F.3d 270, 282 (4th Cir. 2010) (noting that to succeed on actual innocence grounds a petitioner must show that he “did not commit the crime of which he was convicted; this standard is not satisfied by a showing that a petitioner is legally, but not factually, innocent”). By making the argument of “actual innocence,” the petitioner seeks to obtain review of his claims by showing that his case falls into the “narrow class of cases implicating a fundamental miscarriage of justice.” Cornell v. Nix, 119 F.3d 1329, 1333 (8th Cir. 1997). In the present matter, the petitioner's actual innocence claim is facially inadequate because he has not “supported] his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Indeed, other than referencing unknown individuals who contacted plea counsel (apparently in the past), the petitioner has not proffered any evidence in support of his actual innocence claim. Further, because the petitioner pled guilty, his actual innocence claims are considered as a challenge to the factual basis of the guilty plea - not the facts underlying the charge outside of the factual basis. See United States v. Zehrbach, 797 Fed.Appx. 107, 108 (4th Cir. 2020); Carryl v. Knight, C/A No. 4:20-cv-04210-JMC, 2022 WL 1590809, at *4-6 (D.S.C. May 19, 2022). Here, the petitioner cannot establish and has not argued that the factual basis for his guilty plea was inadequate. Indeed, the petitioner signed a factual resume setting forth the elements and facts of the offense to which he was pleading guilty. Cardenas, C/A No. 6:17-cv-00006-H-BU, at doc. 32. Moreover, the petitioner's actual innocence assertion fails because the trial court previously rejected arguments by the petitioner that his plea was involuntary. See id. at docs. 30; 31; see also Carryl, 2021 WL 5989940, at *4 (noting that “where a defendant has [pled] guilty and has failed to credibly refute that the guilty plea was knowing and voluntary, his claims of actual innocence must also fail”). Accordingly, the petitioner cannot use “actual innocence” to bypass the gatekeeping requirements of § 2255 and use the present § 2241 petition to seek § 2255 relief via that statute's savings clause.
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.
The petitioner cannot cure the deficiencies noted herein relative to the § 2255 savings clause, however, dismissal without prejudice is recommended because the Fourth Circuit Court of Appeals has held that dismissals for lack of subject-matter jurisdiction must be without prejudice. S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013).
IT IS SO RECOMMENDED. 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
250 East North Street, Room 2300
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).