Opinion
C/A No. 9:19-1592-RMG-BM
09-17-2019
Ronnie Lynn Fowler, Petitioner, v. M. Travis Bragg, Respondent.
REPORT AND RECOMMENDATION
The pro se Petitioner, Ronnie Lynn Fowler, an inmate at FCI-Bennettsville, brings this application for writ of habeas corpus (Petition) pursuant to 28 U.S.C. § 2241. 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 procedural provisions of the Rules Governing Section 2254 Proceedings in the United States District Court, 28 U.S.C. § 2254; the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996; 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); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
See Rule 1(b) of Rules Governing Section 2254 Cases in the United States District Courts [the district court may apply any or all of these rules to a habeas corpus petition not filed pursuant to 28 U.S.C. § 2254].
Pro se petitions are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a petition filed by a pro se litigant to allow for the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89 (2007); Hughes v. Rowe, 449 U.S. 5, 9 (1980); Fine v. City of New York, 529 F.2d 70, 74 (2d Cir. 1975). However, even when considered under this less stringent standard, for the reasons set forth hereinbelow the petition submitted in the instant case is subject to summary dismissal. The requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). Such is the case here.
Discussion
Petitioner was charged in the Northern District of Texas with five counts (Counts one, two, three, five, and seven) of Obstruction of Commerce by Robbery under 18 U.S.C. § 1951, and three counts (Counts four, six, and eight) of use and carrying a firearm in a crime of violence pursuant to 18 U.S.C. § 924(c). He was convicted in 1992 on all five counts of robbery under the Hobbs Act, 18 U.S.C. § 1951, and all three counts of using and carrying a firearm in relation to a crime of violence under 18 U.S.C. § 924(c). He was originally sentenced to 627 months in prison, but the sentence was later reduced to 540 months and one day. See Fowler v. United States, No. 4:92-CR-177-Y (N.D.Tex.). He appealed the original sentence to the United States Court of Appeals for the Fifth Circuit, which affirmed the judgment of the district court. United States v. Fowler, 20 F.3d 466 ,1994 WL 121940 (5th Cir. 1994). Petitioner filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, which the district court denied on June 6, 2018. See Fowler v. United States, Nos. 4:92-CR-177-Y, 4:16-CV-596-Y (N.D.Tex.).
A federal court may take judicial notice of the contents of its own records. See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1979). The Court may also take judicial notice of factual information located in postings on government web sites. See Tisdale v. South Carolina Highway Patrol, C/A No. 0:09-1009-HFF-PJG, 2009 WL 1491409, *1 n. 1 (D.S.C. May 27, 2009), aff'd 347 F. App'x 965 (4th Cir. Aug. 27, 2009); In re Katrina Canal Breaches Consolidated Litigation, No. 05-4182, 2008 WL 4185869, at * 2 (E.D.La. Sept. 8, 2008)[noting that courts may take judicial notice of governmental websites including other courts' records]; Williams v. Long, 585 F.Supp.2d 679, 687-88 (D.Md. 2008)[noting that some courts have found postings on government web sites as inherently authentic or self-authenticating].
In his § 2255 motion, Petitioner contended that his sentences for his three firearm-related counts under § 924(c) should be vacated in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015)[declaring the residual clause in Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), unconstitutionally vague]. The district court concluded that Johnson had no bearing on Petitioner's case because his sentence was not increased under the ACCA's residual clause as instead he was sentenced under 18 U.S.C. § 924(c)(3)(B). The district court noted that the Fifth Circuit indicated that four other circuits "have held that the Hobbs Act definition of robbery describes the crime of violence under § 924(c)(3)(A) [the statute's elements -rather than residual - clause]," and concluded "it was not error -plain or otherwise-for the district court to classify a Hobbs Act robbery as a crime of violence [under § 924(c)(3)(A)." United States v. Buck, 847 F.3d 267, 275 (5th Cir. 2017). The Court concluded that because Petitioner's convictions remained crimes of violence under § 924(c)(3)(A), Johnson did not apply and Petitioner's § 2255 motion was untimely. Fowler v. United States, No. 4:16-CV-596-Y (N.D.Tex.), Doc. 17.
Petitioner asserts that because the Fourth Circuit, in Simms v. United States, 914 F.3d 229 (4th Cir. 2019), declared that the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague, his Hobbs Act (18 U.S.C. § 1951) robbery convictions no longer qualify as crimes of violence under the force clause such that he should be resentenced absent any enhancement pursuant to § 924. Petitioner also points to a case from the Fifth Circuit Court of Appeals, on appeal at the time he filed his Petition, in which the United States Supreme Court has now held that § 924(c)(3)(B) is unconstitutional. United States v. Davis, 139 S.Ct. 2319 (2019).
See United States v. Davis, 903 F.3d 483, 486 (5th Cir. 2018)[holding that § 924(c)(3)(B) is unconstitutionally vague], aff'd in part, vacated in part, remanded, 139 S. Ct. 2319 (2019).
This action is subject to summary dismissal because generally "it is well established that defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255," not through a petition filed pursuant to § 2241. Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citing In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997)). While a federal prisoner may file a § 2241 petition challenging his conviction if § 2255 is "inadequate or ineffective to test the legality of [his] detention;" In re Jones, 226 F.3d 328, 333 (4th Cir. 2000) (internal quotation marks omitted); see 28 U.S.C. § 2255(e); a petitioner must establish the following to demonstrate that a § 2255 motion is inadequate or ineffective to test the legality of an inmate's conviction:
(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.United States v. Wheeler, 886 F.3d 415, 427 (4th Cir. 2018)(citing Jones, 226 F.3d at 333-34).
As noted above, the United States Supreme Court recently found that the residual clause, § 924(c)(3)(B), is unconstitutional. United States v. Davis, 139 S.Ct. 2319 (2019). Thus, even assuming Petitioner can meet the first two elements of the In re Jones test, he cannot meet the third element because the decision in Davis announced a new rule of constitutional law. Therefore, Petitioner is foreclosed from bringing a § 2241 Petition challenging the legality of his conviction(s). Rather, Petitioner's remedy, if any, is 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 United States Court of Appeals for the Fifth Circuit. See 28 U.S.C. § 2255(h). Therefore, the Petition should be dismissed because this court lacks jurisdiction. 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].
In so far as Petitioner challenges the legality of his sentences imposed as to his convictions under 18 U.S.C. § 924, the Fourth Circuit held in Wheeler that § 2255 is inadequate or 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.United States v. Wheeler, 886 F.3d at 429 (citing In re Jones, 226 F.3d at 333-34). Petitioner argues that he meets the requirements of the Wheeler test based on a change in the substantive law based on the decision in Simms, as discussed above. However, Simms is a decision of the Fourth Circuit Court of Appeals, and a change in the substantive law that causes a petitioner's sentence to be unlawful must arise from the United States Supreme Court or the circuit in which the petitioner was convicted, which here is the Fifth Circuit. See Van Horrelbeke v. United States, No. 0-08-3869-CMC-PJG, 2010 WL 146289, at *4 (D.S.C. Jan. 8, 2010)[holding that in applying the second prong of the savings clause test, "the substantive law relevant to a § 2241 petition is that of the circuit in which the petitioner was convicted"] citing Chaney v. O'Brien, No. 7:07CV00121, 2007 WL 1189641, at *1 (W.D. Va. Apr. 23, 2007), aff'd, 241 F. App'x 977 (4th Cir. 2007); Eames v. Jones, 793 F. Supp. 2d 747, 750 (E.D.N.C. 2011) [finding that the law of the circuit in which petitioner was convicted should apply to § 2241 proceedings held in a different circuit].
If, instead, Petitioner is now arguing that based on the Supreme Court's recent decision in Davis he meets the four-part test to challenge the legality of his sentence(s) under the Wheeler test, he cannot meet the third prong as he cannot show that he is unable to meet the gatekeeping provisions of § 2255(h)(2)["A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain- ....(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."]. Here, Davis announced a new rule of constitutional law and the Fifth Circuit recently held that Davis announced a new substantive rule of constitutional law applicable retroactively to cases on collateral review. United States v. Reece, ___ F.3d ___ 2019 WL 4252238 (5th Cir. Sept. 9, 2019). Therefore, Petitioner cannot show that he meets the Wheeler test. As a result, this Court lacks jurisdiction. Petitioner's potential remedy is to seek permission from the United States Court of Appeals for the Fifth Circuit to file a successive section 2255 petition in the District Court for the Northern District of Texas, the District in which he was sentenced.
Finally, the Fourth Circuit and other circuits have held that Hobbs Act robbery is a violent felony under the force clause of § 924(c)(3)(A). See United States v. Mathis, 932 F.3d 242, 265-266 (4th Cir. 2019)["we conclude that Hobbs Act robbery constitutes a crime of violence under the force clause of Section 924(c)"]; United States v. St. Hubert, 909 F.3d 335 (11th Cir. 2018); United States v. Melgar-Cabrera, 892 F.3d 1053 (10th Cir. 2018); United States v. Hill, 890 F.3d 51 (2d Cir. 2018); United States v. Eshetu, 863 F.3d 946 (D.C. Cir. 2017); United States v. Gooch, 850 F.3d 285 (6th Cir. 2017); United States v. Buck, 847 F.3d 267 (5th Cir. 2017); United States v. Anglin, 846 F.3d 954 (7th Cir. 2017); United States v. Robinson, 844 F.3d 137 (3d Cir. 2016); United States v. House, 825 F.3d 381 (8th Cir. 2016); United States v. Howard, 650 F. App'x 466 (9th Cir. 2016). Further, the Fifth Circuit has held that § 924(c) convictions that are predicated upon substantive Hobbs Act robberies—not conspiracy to commit Hobbs Act robbery— qualify as crimes of violence under Section 924(c)(3)(A)'s elements clause. See United States v. Bowens, 907 F.3d 347, 353-54 (5th Cir. 2018), cert. denied, 139 S. Ct. 1299 (2019) ("[B]inding circuit precedent forecloses [Defendant's] claim that Hobbs Act robbery is not a [crime of violence] predicate under 18 U.S.C. § 924(c)(3)(A)") (citing United States v. Buck, 847 F.3d 267, 275 (5th Cir. 2017)); United States v. Davis, 903 F.3d 483, 485 (5th Cir. 2018) (per curiam), aff'd in part and vacated in part, 139 S. Ct. 2319 (2019) ["Whatever arguments may be made for opposing Hobbs Act robbery's inclusion under the elements clause as a crime of violence ... are foreclosed to us in light of Buck."].
RECOMMENDATION
Accordingly, it is recommended that the Petition in this action be dismissed without prejudice and without requiring Respondent to file a return.
Petitioner's attention is directed to the important notice on the next page.
/s/_________
Bristow Marchant
United States Magistrate Judge September 17, 2019
Charleston, 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 835
Charleston, South Carolina 29402
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).