Opinion
C/A 6:20-cv-03781-BHH-KFM
08-12-2022
Mario Alberto Garcia-Balderas, Petitioner, v. Bryan Dobbs, Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
The petitioner, proceeding pro se and in forma pauperis, 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.
The petitioner's § 2241 petition was entered on the docket on October 28, 2020 (doc. 1). By order dated November 20, 2020, the undersigned informed the petitioner that his case was not in proper form (doc. 7). The petitioner submitted documents on December 4, 2020; as such, this case is now in proper form for review. However, 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.
ALLEGATIONS
Petitioner's Conviction and Sentence
The petitioner was found guilty by a jury on February 23, 2015, in the United States District Court for the Southern District of Texas to two weapons charges: being a felon in possession of a weapon and being an alien (unlawfully in the United States) in possession of a weapon. See United States v. Garcia-Balderas, C/A No. 7:14-cr-01408-1, at doc. 34 (S.D. Tex.). The petitioner was sentenced on August 31, 2015. Id. at doc. 60. The petitioner appealed, and his case was remanded to the district court based upon double jeopardy. Id. at doc. 86; See United States v. Garcia-Balderas, 667 Fed.Appx. 486 (5th Cir. 2016) (mem.), cert. denied 137 S.Ct. 323 (2016) (mem.). On remand, the petitioner's charge for being an alien in possession of a weapon was dismissed and he was resentenced for being a felon in possession of a weapon to 120 months' imprisonment with a $100.00 special assessment. United States v. Garcia Balderas, C/A No. 7:14-cr-01408-1, at docs. 93; 94.
The court takes judicial notice of the records in the petitioner's criminal case in the Southern District of Texas at case number 7:14-cr-01408-1. 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.'”).
Petitioner's § 2255 Motions
The petitioner filed a motion pursuant to § 2255 on July 6, 2017, arguing that his sentence was in excess of the maximum permitted by law, relying on Dean v. United States, 137 S.Ct. 1170 (2017), and Puerto Rico v. Sanchez Valle, 136 S.Ct. 1863 (2016). Id. at doc. 99. The petitioner's motion was dismissed and a certificate of appealability denied on October 4, 2017. Id. at doc. 100. The petitioner appealed, but his motion seeking a certificate of appealability was denied and his request to proceed in forma pauperis on appeal was denied. Id. at doc. 101; see United States v. Garcia-Balderas, C/A No. 1741125, 2018 WL 11220767 (5th Cir. Dec. 20, 2018).
The petitioner then filed a second § 2255 motion on June 8, 2020, seeking relief based upon Rehaif v. United States, 139 S.Ct. 2191 (2019). United States v. Garcia Balderas, C/A No. 7:14-cr-01408-1, at doc. 111. The petitioner's motion was noted as being second or successive and was subsequently transferred to the Fifth Circuit Court of Appeals so that the Fifth Circuit could rule on whether the petitioner met the statutory requirements for filing a second or successive motion under § 2255. Id. at docs. 113; 114; In re Garcia-Balderas, C/A No. 20-40616 (5th Cir.). The petitioner voluntarily dismissed the request, conceding that he did not meet the requirements for filing of a second or successive motion. In re Garcia-Balderas, C/A No. 20-40616 (5th Cir.).
Petitioner's Present Action
The petitioner now seeks habeas relief pursuant to 28 U.S.C. § 2241, claiming that his conviction and sentence are unconstitutional because he is actually innocent of the offense based upon Rehaif (doc. 1). For relief, the petitioner seeks vacation of his conviction and a new trial (id. at 7).
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) (per curiam). 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 Williamsburg 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 and sentence in light of Rehaif via the present § 2241 action (doc. 1). As set forth in more detail below, because the petitioner cannot meet the savings clause test, the undersigned recommends dismissing the petition 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).
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 there are no allegations that the conduct for which the petitioner was convicted is no longer criminal due to a change in the law. Here, the crime for which the jury found the petitioner guilty, being a felon in possession of a weapon, remains a criminal offense; thus, he cannot meet the Jones savings clause test. The petitioner argues, as noted, that his conviction is no longer valid based upon Rehaif (doc. 1). In Rehaif, the Supreme Court held that the Government must prove both that a defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm. Rehaif, 139 S.Ct. at 2200. Rehaif involved a jury trial-as in the instant matter. However, fatal to the petitioner's assertions in this matter are his stipulation with respect to his status as a convicted felon, as well as his criminal history. The petitioner stipulated that:
The parties have agreed to stipulate that on or about June 22nd, 2000, the Defendant in this case, Mario Alberto Garcia-Balderas, was convicted in a court of a crime punishable by imprisonment for a term exceeding one year.United States v. Garcia-Balderas, C/A No. 7:14-cr-01408-1, at doc. 78 p. 98; See Christian Legal Soc'y Chapter of Univ. of Cal. v. Martinez, 561 U.S. 661,667-78 (2010) (stating that factual stipulations “have the effect of withdrawing a fact from issue and dispensing with the need for proof of the fact” (internal quotation marks omitted)). Moreover, transcripts from the petitioner's sentencing hearings on May 11, 2015, and August 31, 2015, note that the petitioner has an unlawful carry of a weapon charge from 1993, a charge for knowingly possessing a firearm in 1999, and a third for being a felon in possession of a weapon for which the petitioner received a forty-six month sentence. United States v. Garcia-Balderas, C/A No. 7:14-cr-01408-1, at docs. 79 pp. 23-24; 82 p. 5. Accordingly, the petitioner cannot challenge the validity of his § 922(g) conviction under § 2241.
As noted above, the petitioner was originally found guilty on two weapons charges; however, upon remand from the Court of Appeals, one of the charges was dismissed. See United States v. Garcia-Balderas, C/A No. 7:14-cr-01408-1, at docs. 34; 60; 86; 93; see also United States v. Garcia-Balderas, 667 Fed.Appx. 486 (5th Cir. 2016) (mem.), cert. denied 137 S.Ct. 323 (2016) (mem.).
The petitioner cannot save his petition by arguing that he is “actually innocent” of the offense (doc. 1). 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). Instead, the petitioner argues that, post Rehaif, his conviction is no longer valid (doc.1). However, as set forth supra, the petitioner stipulated to his status as a convicted felon and his criminal record includes prior charges for unlawful possession of a weapon. See United States v. Garcia-Balderas, C/A No. 7:14-cr-01408-1, at docs. 78 p. 98; 79 p. 23-24; 82 p. 5. As such, the petitioner has not satisfied the requirements for a valid innocence claim relating to his § 922(g) conviction. 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.
Secondly, to the extent the petitioner's § 2241 could be liberally construed as a challenge to the sentence he received for his § 922(g) conviction, the petition does not meet the Wheeler test, which sets forth when a petitioner may meet the savings clause under § 2255 to contest his sentence. The Court of Appeals noted that:
[Section] 2255 is inadequate and 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 (citations omitted).
The petitioner, in the present matter, argues that his sentence is unconstitutional and should be vacated and set aside because he is actually innocent due to Rehaif (doc. 1). The petitioner, however, cannot meet the second Wheeler factor: that “subsequent to [his] direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review.” Wheeler, 886 F.3d at 429.
The petitioner filed a direct appeal in 2015 and his case was remanded in 2016. See United States v. Garcia-Balderas, C/A No. 7:14-cr-01408-1; United States v. Garcia-Balderas, 667 Fed.Appx. 486 (5th Cir. 2016) (mem.), cert. denied 137 S.Ct. 323 (2016) (mem.). The petitioner then filed his first § 2255 motion on July 6, 2017. See United States v. Garcia-Balderas, C/A No. 7:14-cr-01408-1, at doc. 99. Rehaif was decided by the Supreme Court on June 21, 2019. Rehaif, 139 S.Ct. 2191. As such, Rehaif was decided after the petitioner's first appeal and § 2255 motion. However, to date, Rehaif has not been held to be retroactive on collateral review by the sentencing circuit. See Williams v. Underwood, C/A No. 3:19-cv-02043-M (BT), 2020 WL 1866895, at *2 (N.D. Tex. Mar. 17, 2020) (citing In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019) (holding that Rehaif “was not made retroactive to cases on collateral review by the Supreme Court”)), Report and Recommendation adopted by 2020 WL 1862576 (N.D. Tex. Apr. 14, 2020). Therefore, the petitioner cannot meet the second prong of Wheeler, because he has not shown that subsequent to his direct appeal and first § 2255 motion, there was a change in the substantive law of the sentencing court that was deemed to apply retroactively on collateral review. Accordingly, the petitioner has failed to satisfy the elements of the Court of Appeal's Wheeler test to invoke the savings clause of § 2255 and challenge his sentence. As such, the petitioner's § 2241 petition should be dismissed because the savings clause contained in § 2255 does not permit him to bring this § 2241 action.
Of note, to date the Fourth Circuit has also not recognized Rehaif as retroactive on collateral review.
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 Court of Appeals has held that dismissals for lack of subject-matter jurisdiction must be without prejudice. S. Walk at Broadlands Homeowner's Assn 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:
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).