Opinion
Case No. CIV-20-446-D
07-01-2020
ROLAND EUGENE FULLER, Petitioner, v. FNU LNU, Warden, FTC Oklahoma City, Respondent.
REPORT AND RECOMMENDATION
Roland Eugene Fuller, a pro se federal prisoner currently housed at the Federal Transfer Center, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 and a "Memorandum of Supporting Facts" challenging his sentence. Docs. 1, 4. Chief United States District Judge Timothy D. DeGiusti has referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Because Petitioner's claims do not fall within § 2255(e)'s Savings Clause, the undersigned recommends the Court dismiss the petition for lack of jurisdiction.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
I. Procedural background.
In 2007, a District of South Carolina jury convicted Petitioner of one count of conspiracy to possess with intent to distribute five kilograms or more of cocaine, fifty grams or more of cocaine base, and 1,000 kilograms or more of marijuana, in violation of 21 U.S.C. § 841(a)(1), § 841(b)(1)(A), and § 846. See Doc. 4, at 2-3; United States v. Fuller, 269 F. App'x 274, 275 (4th Cir. 2008) (Fuller I). That court sentenced Petitioner to life imprisonment followed by ten years of supervised release. Fuller v. United States, 2009 WL 4333205, at *3 (D.S.C. Nov. 30, 2009) (Fuller II); Doc. 4, at 3. The Fourth Circuit affirmed his conviction and sentence on direct appeal. Fuller I, 269 F. App'x at 276.
Petitioner filed a 28 U.S.C. § 2255 motion in the District of South Carolina to vacate or set aside his conviction. See Fuller II, 2009 WL 4333205, at *1. Petitioner raised a claim of ineffective assistance of appellate counsel for failing to challenge the sufficiency of the evidence on direct appeal. Id. at *3. He also raised claims of ineffective assistance of trial counsel for failing to make a Crawford challenge to the prosecution's use of recorded statements at trial and for failing to seek severance from one of Petitioner's alleged co-conspirators. Id. The court rejected Petitioner's allegations and denied his § 2255 motion. Id. at *3-7. Petitioner appealed and the Fourth Circuit denied him a certificate of appealability. See United States v. Fuller, 404 F. App'x 713, 714 (4th Cir. 2010).
In his current § 2241 petition, Petitioner raises two grounds for relief. In Ground One, citing United States v. Whitley, 737 F. App'x 147 (4th Cir. 2018), he argues he is "actual[ly] innocent of being a career offender[] since conspiracy to distribute cocaine and marijuana is not a controlled substance offense." Doc. 1, at 4. In Ground Two, Petitioner argues that, "[i]n light of Mathis v. United States, 136 S. Ct. 2243, 2248 (2016), . . . his enhanced sentence under 21 U.S.C. Section 851 and USSG Section 4B1.1 (a) cannot be imposed because the prior drug offenses are not a 'felony drug offense'." Doc. 1, at 4-5. Petitioner, invoking Whitley and Mathis, argues that his claims should be subject to § 2255(e)'s Savings Clause because he did not have "a reasonable opportunity to obtain earlier judicial correction of a fundamental defect in his conviction or sentence because the law changed after his first 2255 motion." Doc. 4, at 4.
Under the Federal Sentencing Guidelines, a defendant can be considered a career offender if "(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). In Whitley, the Fourth Circuit held that the petitioner's prior convictions for conspiracy to distribute and possess with intent to distribute cocaine base, in violation of 21 U.S.C. § 846, could not "support his enhanced sentencing as a career offender because they [were] not categorically controlled substance offenses." 737 F. App'x at 148-49.
Petitioner's prior South Carolina drug convictions are "possession with intent to distribute marijuana (1983)," "transporting marijuana (1983)," "possession with intent to distribute cocaine (1983)," and "possession with intent to distribute cocaine (1990)." See Doc. 4, at 7-8; see also United States v. Fuller, No. 6:06-998, Doc. 225 (D.S.C. Oct. 10, 2006).
II. Analysis.
A § 2255 motion serves as "the primary vehicle to attack the validity of a federal conviction or sentence." Guerrero v. English, 743 F. App'x 207, 209 (10th Cir. 2018) (citing Prost v. Anderson, 636 F.3d 578, 581 (10th Cir. 2011)). A federal prisoner "generally is entitled to only one adequate and effective opportunity to test the legality of his detention, in his initial § 2255 motion." Prost, 636 F.3d at 586 (emphasis omitted). Once the initial § 2255 challenge fails, the prisoner cannot file a "second or successive" § 2255 motion unless a panel of the appropriate court of appeals certifies that the motion contains:
(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); Hale v. Fox, 829 F.3d 1162, 1165 (10th Cir. 2016). A federal prisoner must file a § 2255 motion in the district where the petitioner was convicted and his sentence imposed. Hale, 829 F.3d at 1165 (citing Sines v. Wilner, 609 F.3d 1070, 1073 (10th Cir. 2010)).
A § 2241 petition differs from a § 2255 petition in that the former is "generally reserved for complaints about the nature of a prisoner's confinement, not the fact of his confinement." Prost, 636 F.3d at 581; Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) ("A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity and must be filed in the district where the prisoner is confined."). Unlike § 2255, "[§] 2241 does not limit the number of applications a prisoner may bring," and the application must be filed in the district where the prisoner is incarcerated. Kirkland v. English, 757 F. App'x 640, 642 (10th Cir. 2018) (citation omitted).
In rare instances, a federal prisoner may file a § 2241 application to challenge his conviction under § 2255(e)'s Savings Clause. See Hale, 829 F.3d at 1165. In those rare instances, the "prisoner may proceed under § 2241 . . . when '§ 2255 fail[s] as an adequate or effective remedy to challenge a conviction or the sentence imposed.'" Lewis v. English, 736 F. App'x 749, 751-52 (10th Cir. 2018) (quoting Sines, 609 F.3d at 1073). The prisoner "bears the burden of showing he satisfies § 2255(e)." Hale, 829 F.3d at 1170. If the prisoner fails to show he satisfies the § 2255(e) Savings Clause test, the district court lacks statutory jurisdiction to hear the § 2241 habeas petition challenging the sentence or conviction. See Abernathy v. Wandes, 713 F.3d 538, 557 (10th Cir. 2013).
Section 2255(e)'s Savings Clause test considers "whether a petitioner's argument challenging the legality of his detention could have been tested in an initial § 2255 motion." Prost, 636 F.3d at 584; see also Kirkland, 757 F. App'x at 642; Lewis, 736 F. App'x at 752. "[I]t is the infirmity of the § 2255 remedy itself, not the failure to use it or to prevail under it, that is determinative," so "there must be something about the initial § 2255 procedure that itself is inadequate or ineffective for testing a challenge to detention." Prost, 636 F.3d at 589. If the petitioner could have raised in an initial § 2255 motion the same type of argument that he is raising under § 2255(e)'s Savings Clause, then "[t]he § 2255 remedial vehicle was fully available and amply sufficient to test the argument, whether or not [the petitioner] thought to raise it. And that is all the savings clause requires." Id.
Petitioner cites cases from other circuit courts in support of his Savings Clause argument. See Doc. 4, at 4-5 (citing In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000); In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997); Triestman v. United States, 124 F.3d 361, 363 (2d Cir. 1997), and then citing Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013)). This Court must apply Tenth Circuit authority on this issue. See Garcia v. Stancil, ___ F. App'x ___, 2020 WL 1696857, at **2-3 (10th Cir. Apr. 8, 2020) (rejecting the petitioner's request to "apply the Third Circuit's savings-clause test" and holding the court was "bound to apply" its savings-clause test set forth in Prost).
Petitioner asserts that his § 2241 petition falls under § 2255(e)'s Savings Clause, arguing that both Mathis and Whitley are "statutory interpretation case[s]" that he could not have invoked before because they were decided after his prior § 2255 motion was decided. Doc. 4, at 5-7. But, intervening changes in statutory interpretation do not entitle Petitioner to the relief he seeks. See Garcia, 2020 WL 1696857, at *2 (rejecting petitioner's argument that he was entitled to invoke § 2241's savings clause "based on statutory interpretations and newly announced substantive law that post-date[d] the resolution of [petitioner's] prior § 2255 motion").
Petitioner relies on the Seventh Circuit's "erroneous-circuit-foreclosure" savings clause test to support his argument. Doc. 4, at 5 (citing Brown, 719 F.3d at 586). "[The Tenth Circuit] specifically rejected [the erroneous-circuit-foreclosure] approach in Prost." Lewis, 736 F. App'x at 752.
With respect to the Mathis issue, a federal prisoner cannot bring a § 2241 challenge to enhanced sentences under Mathis if the petitioner could have raised the same claim in his initial § 2255 petition. See, e.g., Guerrero, 743 F. App'x at 209-10 ("Merely because the relevant [] case law which was applied when [Petitioner] was sentenced was later overruled by a subsequent Supreme Court decision does not mean § 2255 was an inadequate or ineffective vehicle . . . . Even if his chances of success were not high, [Petitioner] still could have challenged the [] then-existing precedent in his [initial] § 2255 motion.") (citations omitted); Sandlain v. English, 714 F. App'x 827, 830 (10th Cir. 2017) ("[Petitioner] could have raised and tested a Mathis-type argument in his initial § 2255 motion . . . . [E]ven assuming there was contrary circuit precedent, nothing prevented him from raising the argument in his initial § 2255 motion and then challenging any contrary precedent . . . . Nor does it matter that Mathis [did not exist when] he filed his initial § 2255 motion."). Likewise, Petitioner could have raised his "Mathis-type argument" in his first § 2255 motion.
The same is true of Petitioner's argument based on the Fourth Circuit's unpublished decision in Whitley. While Petitioner may not have thought of this particular "'novel statutory interpretation argument'" later discussed by the Fourth Circuit, he is still not excused for failing to raise this argument in his initial § 2255 motion because that failure does not "speak to the relevant question whether § 2255 itself provided [Petitioner] with an adequate and effective remedial mechanism for testing such an argument.'" Garcia, 2020 WL 1696857, at *2 (quoting Prost 636 F.3d at 589 (internal alterations and insertions omitted)).
Even if this Court applied Fourth Circuit law as requested by Petitioner, see Doc. 4, at 16, this claim would still not fall within the Savings Clause. See Turner v. Warden, FCI Edgefield, 2020 WL 2527369, at *3 (D.S.C. Apr. 28, 2020) (analyzing a Whitley claim under the Fourth Circuit's savings clause test and determining the unpublished Whitley decision to be nonprecedential in light of other published cases holding to the contrary, it did not apply retroactively, and the petitioner's sentence, even if based on a misclassification as a career offender under the non-mandatory sentencing guidelines, did not present an error sufficiently grave to be deemed a fundamental defect), adopted by 2020 WL 2523225 (D.S.C. May 18, 2020).
Having considered the petition and the nature of the claims Petitioner presents, the undersigned recommends the Court dismiss this matter for lack of jurisdiction. Petitioner fails to show he satisfies § 2255(e)'s Savings Clause test, and so he may not proceed under § 2241. Petitioner may seek authorization from the Fourth Circuit to pursue a second or successive application for relief under 28 U.S.C. § 2255. See 28 U.S.C. § 2255(h).
III. Recommendation.
For these reasons, the undersigned recommends the court dismiss Petitioner's § 2241 petition for lack of jurisdiction.
The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before July 22, 2020, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises Petitioner that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned in the captioned matter.
ENTERED this 1st day of July, 2020.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE