Opinion
CIV-23-234-G
05-26-2023
YUSUFU DANMOLA, Petitioner, v. WARDEN GOLDEY, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Yusufu Danmola, a federal prisoner proceeding pro se, filed a Petition for a writ of habeas corpus under 28 U.S.C. § 2241. (ECF Nos. 10 & 11). United States District Judge Charles B. Goodwin has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). On initial review, the Court should: (1) dismiss Ground One for lack of jurisdiction; (2) dismiss the Due Process claim in Ground Two based on a lack of liberty interest; and (3) dismiss the Equal Protection claim in Ground Two as conclusory, or alternatively, as without merit.
I. SCREENING REQUIREMENT
The Court is required to review habeas petitions promptly and to “summarily dismiss [a] petition without ordering a responsive pleading,” Mayle v. Felix, 545 U.S. 644, 656 (2005), “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” See R. 4, R. Governing § 2254 Cases in U.S. Dist. Ct.
The district court may apply any or all” of the Rules governing § 2254 cases to a habeas petition brought under § 2241. R. 1(b), R. Governing § 2254 Cases in U.S. Dist. Ct.
II. BACKGROUND/CURRENT HABEAS PETITION
On January 11, 2017, in the Northern District of Texas, in Case No. 16-CR-222-Y, a jury convicted Mr. Danmola for a violation of 18 U.S.C. §§ 922(g)(1). See ECF No. 87, United States v. Danmola, Case No. 16-CR-222-Y (N.D. Tx. Jan. 11, 2017). Mr. Danmola appealed, but the appeal was dismissed. See ECF Nos. 109, 111-2, United States v. Danmola, Case No. 17-10583 (5th Cir. Apr. 9, 2018 & Apr. 16, 2018).
The Court may take judicial notice of the criminal case. See St. Louis Baptist Temple, Inc. v. Federal Deposit Insurance Corporation, 605 F.2d 1169 (10th Cir. 1979) (“Further, it has been held that federal courts, in appropriate circumstances, may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.”).
On September 21, 2018, in the criminal case, Petitioner filed a Motion to Vacate his Sentence under 28 U.S.C. § 2255 and the Court opened a new case to entertain that motion and subsequent pleadings, in Case No. 18-CV-791-P. See ECF No. 171, United States v. Danmola, Case No. 16-CR-222-Y (N.D. Tx. Sept. 21, 2018); ECF No. 1; Danmola v. United States, Case No. 18-CV-791-P (N.D. Tx. Sept. 21, 2018). On November 26, 2018, Mr. Danmola filed an Amended Section 2255 Motion, which the Court ultimately denied. See ECF Nos. 12, 35, & 36 (N.D. Tx. Nov. 26, 2018 and Oct. 19, 2020). Mr. Danmola appealed, and the Fifth Circuit affirmed the denial. See ECF No. 46, Danmola v. United States, Case No. 18-CV-791-P (N.D. Tx. Sept. 20, 2021).
On April 25, 2022, Mr. Danmola filed a second Motion to Vacate under 28 U.S.C. § 2255 and the Court opened a new case to entertain that motion and subsequent pleadings, in Case No. 22-CV-354-O. See ECF No. 182, United States v. Danmola, Case No. 16-CR-222-Y (N.D. Tx. Apr. 25, 2022); ECF No. 1, Danmola v. United States, Case No. 22-CV-354-O (N.D. Tx. Apr. 25, 2022). The Court dismissed that pleading as second or successive and denied a certificate of appealability. See ECF No. 6, Danmola v. United States, Case No. 22-CV-354-Y (N.D. Tx. May 4, 2022).
In this Court, Mr. Danmola has filed a habeas Petition and brief in support, asserting two grounds for relief. In Ground One, Petitioner challenges the validity of his conviction under 18 U.S.C. § 922(g)(1) and in Ground Two, Petitioner challenges the constitutionality of 18 U.S.C. § 3621(e)(2)(B), arguing that it violates the Due Process Clause and his Equal Protection rights. (ECF Nos. 10 & 11).
III. GROUND ONE
“A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity” and “[a] 28 U.S.C. § 2255 petition attacks the legality of detention.” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). In Ground One, Mr. Danmola is challenging the validity of his conviction and sentence, by arguing that 18 U.S.C. § 922(g)(1) is unconstitutional. See ECF No. 10:7. Generally, a federal prisoner seeking to challenge his conviction or sentence may do so by seeking a writ of habeas corpus exclusively through 28 U.S.C. § 2255(a). See Prost v. Anderson, 636 F.3d 578, 580 (10th Cir. 2011) (“Congress has told us that federal prisoners challenging the validity of their convictions or sentences may seek and win relief only under the pathways prescribed by § 2255.” (emphasis added)).
Because Mr. Danmola has already filed a two § 2255 petitions, he would have to file a motion in the Fifth Circuit Court of Appeals seeking authorization to file a successive § 2255 petition in the sentencing court. See 28 U.S.C. §§ 2244(b)(3) & 2255(h). Petitioner has not sought such authorization for Ground One.
See supra.
The lone exception to § 2255(a)'s exclusivity is found in § 2255(e), known as “the savings clause,” providing that a federal prisoner may challenge his conviction or sentence by other means if his remedy under § 2255 is inadequate or ineffective.
Specifically, the savings clause 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).
Under this provision, “a federal prisoner may resort to § 2241 to contest his conviction if but only if the § 2255 remedial mechanism is 'inadequate or ineffective to test the legality of his detention.' ” Prost, 636 F.3d at 580 (quoting § 2255(e)). Notably, it is the petitioner's burden to show the § 2255 remedy is inadequate or ineffective. See Abernathy v. Wandes, 713 F.3d 538, 549 (10th Cir. 2013) ("It is [the petitioner's] burden to show that he meets § 2255(e)'s savings clause.”). In doing so, "[t]he relevant measure, . . . is whether a petitioner's argument challenging the legality of his detention could have been tested in an initial § 2255 motion. If the answer is yes, then the petitioner may not resort to the savings clause and § 2241.” Prost, 636 F.3d at 584.
In his Petition and supporting brief, Mr. Danmola admits that he has previously filed a Section 2255 Motion and subsequent habeas petition (which was docketed by the Northern District of Texas as a second Section 2255 Motion), by identifying both motions which were subsequently docketed in the Northern District of Texas in Case No. 18-CV-791-P and Case No. 22-CV-354-O . See ECF No. 10:4, 6. Petitioner also admits that he has not sought authorization in Fifth Circuit Court of Appeals for authorization to file a subsequent motion. See ECF No. 10:4. When asked to explain why his remedy under Section 2255 is “inadequate or ineffective,” Petitioner states: “Does not meet requirement construed with Reyes v. Requena.” (ECF Nos. 1:4 & 10:5).
In Reyes, the Court held that the savings clause of § 2255 applies to a claim (i) that is based on a retroactively applicable Supreme Court decision which establishes that the petitioner may have been convicted of a nonexistent offense and (ii) that was foreclosed by circuit law at the time when the claim should have been raised in the petitioner's trial, appeal, or first § 2255 motion. See Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). Although Mr. Danmola does not elaborate on his statement, it appears to serve as an admission that the savings clause does not apply in his case.
Because Petitioner has failed to meet his burden to satisfy the savings clause, the Court lacks jurisdiction over the Ground One of the Petition. See Abernathy v. Wandes, 713 F.3d at 557 ("when a federal petitioner fails to establish that he has satisfied § 2255(e)'s savings clause test-thus, precluding him from proceeding under § 2241-the court lacks statutory jurisdiction to hear his habeas claims.”). Because the savings clause does not apply, the Court should treat Ground One as an unauthorized successive Section 2255 motion. At this juncture, the District Court could: (1) dismiss the case, or (2) pursuant to 28 U.S.C. § 1631,5 transfer the case to the appropriate Court of Appeals, if transfer of the case would be in the interest of justice. See In re Clne, 531 F.3d 1249, 1252 (10th Cir. 2008). Here, it would not be in the interest of justice to transfer this action to the Fifth Circuit Court of Appeals because Petitioner cannot satisfy the requirements of 28 U.S.C. § 2255(h), which requires a successive motion to contain:
See Russian v. Hudson, 796 Fed.Appx. 500, 503 (10th Cir. 2019) (affirming dismissal of 2241 petition which challenged legality of a federal conviction because petitioner was not able to establish that Section 2255 was inadequate or ineffective).
Section 1631 provides:
Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.
1. newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
2. a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.28 U.S.C. § 2255(h). Mr. Danmola has not identified any “new evidence” in his Petition, or supporting brief. See ECF Nos. 10 & 11. Thus, because it is likely that the Fifth Circuit Court of Appeals would not authorize a successive petition under Section 2255, the Court should decline to transfer the case.
IV. GROUND TWO
In Ground Two, Mr. Danmola argues that 18 U.S.C. § 3621(e)(2)(B) violates his rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. See ECF Nos. 10 & 11. The Court should dismiss Ground Two.
Under 18 U.S.C. § 3621(e)(2)(B), the Bureau of Prisons (BOP) may reduce the sentence of a prisoner convicted of a nonviolent felony by up to one year for successful completion of a residential drug abuse program. (RDAP). See 18 U.S.C. § 3621(e)(2)(B). Because the statute does not define a “nonviolent offense,” the BOP published an implementing rule and regulations, which provided that prisoners would not be eligible for early release under Section 3621(e)(2)(B) if convicted of a “crime of violence as defined in 18 U.S.C. § 924(c)(3).” Licon v. Ledezma, 638 F.3d 1303, 1306 (10th Cir. 2011). Subsequently, the BOP issued a Program Statement declaring that “crimes of violence” included felon-in-possession convictions under 18 U.S.C. § 922(g). Id. (citing Program Statement No. 5162.02, § 9 (July 24, 1995)).
As a “violent offender,” having been convicted under 18 U.S.C. § 922(g), Mr. Danmola is categorically ineligible for receiving a sentence reduction under Section 3621(e)(2)(B). As a result, Petitioner argues that his Due Process rights and the Equal Protection Clause have been violated. (ECF Nos. 10 & 11). The undersigned considers each argument in turn.
First. Mr. Danmola argues that Section 3621(e)(2)(B) violates the Due Process Clause based on his categorical ineligibility to receive a reduced sentence, as a violent offender. (ECF No. 11:3, 4). But to state a Due Process claim, Mr. Danmola must assert the infringement of a protected liberty interest. See Kentucky Dept of Corrections v. Thompson, 490 U.S. 454, 460 (1989). A protected liberty interest may arise from either the Due Process Clause itself, or from a state or federal law. See id.; cf. Miller v. Federal Bureau of Prisons, 989 F.2d 420, 423 n. 4 (10th Cir. 1993) (noting rule in circuits holding former federal parole statute created liberty interest). The Constitution does not itself afford Petitioner a liberty interest in a reduced sentence. A convicted person has no constitutional or inherent right to be conditionally released before the expiration of a valid sentence. See Greenhoitz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7 (1979). Neither does § 3621(e)(2)(B) create a liberty interest. It states that the inmate's sentence “may be reduced by the Bureau of Prisons.” (emphasis added). A statute which allows a decisionmaker to deny the requested relief within its unfettered discretion does not create a constitutionally-recognized liberty interest. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983). As a result, the Court should conclude that Petitioner's Due Process claim fails, because he has not demonstrated that he has a liberty interest in the sentence reduction which he seeks.
Second, Mr. Danmola argues that Section 3621(e)(2)(B) violates his Equal Protection rights by the fact that:
The 9th Circuit recieves [sic] the year off their sentence completion of RDAP and no other Circuit does which is unconstitutional due to the States that make up the 9th Circuit having such privilege and no other States being able to use the same privilege.(ECF No. 11:2). The Court should reject Petitioner's claim.
“The Equal Protection Clause of the Fourteenth Amendment provides that no State shall 'deny to any person within its jurisdiction the equal protection of the laws.' ” Ashaheed v. Currington, 7 F.4th 1236, 1249-50 (10th Cir. 2021) (quoting U.S. Const. amend. XIV, § 1). This clause is “essentially a direction that all persons similarly situated should be treated alike.” Id. (citing AM. ex rel. F.M. v. Holme., 830 F.3d 1123, 1166 (10th Cir. 2016) (quotations omitted); see also City of Cleburne, Tex. v. Cleburne Living Ctr, 473 U.S. 432, 439 (1985) (noting that to prevail on an Equal Protection claim, an individual must demonstrate that the government treated him differently than similarly situated individuals). As a result, this standard requires that Petitioner provide specific allegations of how he was treated differently than other “similarly situated” individuals. See Wallin v. Miler, No. 13-CV-1867-MSK-CBS2015 WL 13730083, at *5 (D. Colo. May 13, 2015) ("Mr. Wallin does not provide any specific factual allegations to show how he was treated differently than other similarly-situated prisoners with respect to his applications for parole or community corrections placement. His conclusory allegations fail to show a constitutional deprivation.”).
Here, Mr. Danmola argues that "the judges in the 9th Circuit have given some thought to this and come up with a reasonable resolution due to cases such as this where no person has been struck with the gun, shot with the gun, threatened with the gun, or it being pointed at any person which in this case shows no violence has taken place.” (ECF No. 11:3) (emphasis added). Liberally construed, Mr. Danmola is alleging that his case is similar to cases in the Ninth Circuit, but his allegations fall short of what is required to state a claim for Equal Protection.
"[B]are equal protection claims are simply too conclusory to permit a proper legal analysis.” Straley v. Utah Bd. of Pardons, 582 F.3d 1208, 1215 (10th Cir. 2009). Here, the Court should conclude that Petitioner's reference to cases “such as [his]” which are similar to “cases in the Ninth Circuit” is insufficient to state a claim. See Jackson v. Standifrd, 503 F. App'x, 623, 626, 2012 WL 5935978, at *2 (10th Cir. 2012) (affirming district court's dismissal of equal protection claim which alleged that parole authorities treated him differently than inmates convicted of murder whose victims were not white, absent any additional supporting allegations of how he was similarly situated and had been treated differently); see, generally, Brown v. Zavaras, 63 F.3d 967, 971 (10th Cir. 1995) (stating that complaint's allegations were “too conclusory” to allow for complete equal protection analysis).
In addition to the fact that Petitioner has failed to state a claim under the Equal Protection Clause, the Court could alternatively conclude that his claim is meritless based on the fact that the Tenth Circuit Court of Appeals rejected a similar argument in Fristoe v. Thompson, 144 F.3d 627 (10th Cir. 1998). In Fristoe, a habeas petitioner argued that the BOP's refusal to consider him for sentence reduction under 18 U.S.C. § 3621(e)(2)(B) violates the Equal Protection Clause, because the BOP had “acquiesced in a Ninth Circuit case invalidating its interpretation of § 3621(e)(2)(B) under similar circumstances.” Fristoe, 144 F.3d at 630. To this argument, the Court stated:
Contrary to appellant's contentions, however, the BOP is not compelled by equal protection principles to acquiesce nationwide in the Ninth Circuit's decision. See Castillo-Felix v. INS, 601 F.2d 459, 467 (9th Cir. 1979) (INS was not compelled by equal protection principles to obey holding of Second Circuit Court of Appeals outside the Second Circuit). “It is elementary that decisions of one Court of Appeals cannot bind another.” Id. Under our legal system, authoritative decisions of that nature are left to the United States Supreme Court.Id. Applying Fristoe, the Court should conclude that Ground Two is meritless.
V. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
The Court should: (1) dismiss Ground One for lack of jurisdiction; (2) dismiss the Due Process claim in Ground Two based on a lack of liberty interest; and (3) dismiss the Equal Protection claim in Ground Two as conclusory, or alternatively, as meritless.
Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by June 12, 2023, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Petitioner is further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VI. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.