Opinion
C. A. 6:22-cv-03169-TMC-KFM
01-18-2023
Haleifu Goldsmith, Petitioner, v. Warden R.S. Dunbar, 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.
BACKGROUND
Petitioner's Conviction and Sentence
On October 3, 2006, the petitioner was found guilty by a jury of possessing a firearm as a felon as well as aiding and abetting the possession of a firearm by a felon. See United States v. Goldsmith, C/A No. 3:06-cr-00101-LC-EMT, at doc. 51 (N.D. Fla. Oct. 3, 2006). The petitioner was sentenced to three hundred sixty months' imprisonment (to run concurrent with a one hundred twenty month sentence), to be followed by a total of five years supervised release. Id. at docs. 62; 66. The plaintiff appealed, and the Eleventh Circuit affirmed his convictions and sentence. Id. at docs. 70; 112; United States v. Lesure, et al, 262 Fed.Appx. 135 (11th Cir. 2008).
The court takes judicial notice of the records in the petitioner's criminal case in the United States District Court in the Northern District of Florida as well as related filings in the Eleventh Circuit Court of Appeals. 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
On April 17, 2009, the petitioner filed his first § 2255 motion. Goldsmith, C/A No. 3:06-cr-00101-LC-EMT, at doc. 129. In the motion, the petitioner asserted that the court lacked subject matter jurisdiction when he was convicted because the superseding indictment was not properly approved by the grand jury as well as ineffective assistance of counsel (“IAC”) because trial counsel failed to investigate the court's jurisdiction, trial counsel failed to file a motion to dismiss based upon the improper superseding indictment, trial counsel failed to challenge probable cause and jurisdiction, trial counsel forced the petitioner to stand trial by not obtaining a favorable plea bargain as requested by the petitioner, trial counsel improperly advised the petitioner to testify at trial, trial counsel failed to raise a preemptory challenge on appeal; and that the petitioner's sentence was improperly enhanced. Id. On November 3, 2011, the Honorable Lacey A. Collier, Senior United States District Judge, adopted a report and recommendation recommending that the petitioner's motion be denied and dismissed. Goldsmith, 2011 WL 5362065 (N.D. Fla. Nov. 3, 2011). The petitioner did not appeal the denial of his § 2255 motion.
On April 25, 2016, the petitioner filed a petition in the Eleventh Circuit Court of Appeals seeking permission to file a second or successive § 2255 motion based upon Johnson v. United States, 576 U.S. 591 (2015). In re Goldsmith, C/A No. 16-11892 (11th Cir.). The petitioner's motion was granted by the Eleventh Circuit on May 25, 2016. Id.
On June 13, 2016, the petitioner filed his authorized second § 2255 motion. Goldsmith, C/A No. 3:06-cr-00101-LC-EMT, at doc. 175. In the motion, the petitioner asserted that, based upon Johnson, he had been improperly sentenced under the Armed Career Criminal Act (“ACCA”) and requested re-sentencing absent the ACCA enhancement. Id. On March 7, 2019, the Honorable Lacey A. Collier, Senior United States District Judge, adopted a report and recommendation recommending that the petitioner's motion be denied. Goldsmith, 2019 WL 1099989 (N.D. Fla. Mar. 7, 2019). The petitioner did not appeal the denial of his § 2255 motion.
On December 2, 2019, the petitioner filed a motion seeking a certificate of appealability in the sentencing court based upon IAC and Rehaif v. United States, 139 S.Ct. 2191 (2019). Goldsmith, C/A No. 3:06-cr-00101-LC-EMT, at doc. 188. The petitioner's motion was denied on January 14, 2020. Id. at doc. 189.
Petitioner's Present Action
Here, the petitioner seeks habeas relief pursuant to 28 U.S.C. § 2241, claiming that his convictions and sentence are unlawful based upon Rehaif and Rosemond v. United States, 572 U.S. 65 (2014) (docs. 1; 1-2). For relief, the petitioner seeks to have his case remanded to the sentencing court for further proceedings (docs. 1; 1-1).
On November 30, 2022, the undersigned issued a Report and Recommendation recommending that the instant matter be dismissed because the petitioner did not meet the savings clause test (doc. 13). In response to the Report and Recommendation, the petitioner filed a motion seeking to stay the instant action pending the United States Supreme Court's decision in Jones v. Hendrix, 142 S.Ct. 2706 (2022) (hereinafter “ Hendrix ”) (doc. 18). On December 22, 2022, the Honorable Timothy M. Cain, United States District Judge, entered an order declining to adopt the undersigned's Report and Recommendation and returning the case to the undersigned for consideration of the application of Hendrix to the petitioner's § 2241 petition (doc. 20). Judge Cain's order also denied as moot the petitioner's motion (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-T errorism 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 sentence, arguing that his convictions and sentence were improper based upon Rehaif, Hendrix, and Rosemond (docs. 1; 1-1; 18). 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).
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 in the sentencing circuit. The crimes for which the petitioner was found guilty - being a felon in possession of a weapon and aiding and abetting the possession of a firearm by a felon - remain criminal offenses; thus, he cannot meet the Jones savings clause test. The petitioner argues, as noted, that his convictions are no longer valid based upon Rehaif, Hendrix, and Rosemond (docs. 1; 1-1; 18). The undersigned addresses each case in turn.
See Van Hoorelbeke v. United States, C/A No. 0:08-cv-03869-CMC-PJG, 2010 WL 146289, at *4 (D.S.C. Jan. 8, 2010) (internal citation omitted) (recognizing that decisions regarding the substantive law of the Fourth Circuit were inapplicable to the petitioner because he was sentenced in the Ninth (and not the Fourth) circuit).
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 and his testimony during trial. The petitioner (along with his codefendant) stipulated that:
The defendants stipulate that they are convicted felons, which is a crime punishable by a minimum of one year of imprisonment, who have not had their rights restored under the law to possess firearms or ammunition.Goldsmith, C/A No. 3:06-cr-00101-LC-EMT, at doc. 98 pp. 74-75; 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)). The petitioner also testified during the jury trial that he was a convicted felon with several felony convictions. Id. at doc. 98 pp. 78-79, 103-04. As such, the petitioner cannot rely on Rehaif to meet the savings clause test.
As noted above, in response to the undersigned's first report and recommendation, the petitioner asserted that this action should be stayed pending resolution of Hendrix because the Supreme Court's decision may also find that the petitioner in this case is entitled to habeas relief (doc. 18). In Hendrix, currently pending before the United States Supreme Court, the petitioner argued that the savings clause test utilized in the Eighth Circuit (where he is incarcerated) should be extended to allow him to seek habeas relief under § 2241 based upon Rehaif. See Hendrix, C/A No. 2:19-cv-00096-JTR (E.D. Ark.). The defendant in Hendrix was found guilty by a jury of two counts of being in possession of a firearm as a felon and one count of making false statements to acquire a firearm. See United States v. Jones, C/A No. 2:00-cr-04010-SRB-1, at doc. 40. During the jury trial, there was extensive testimony about the defendant's criminal history, but he did not stipulate regarding his status as a felon, and he testified that he believed his rights to own a firearm had been restored. Id. at docs. 33; 36. Based on the foregoing, the defendant seeks to have his felon in possession conviction vacated due to Rehaif. See Hendrix, C/A No. 2:19-cv-00096-JTR. The petitioner's petition was dismissed for failing to meet the savings clause, and the dismissal was affirmed by the Eighth Circuit. Hendrix, 8 F.4th 683 (8th Cir. 2022). As noted, an appeal in Hendrix is currently pending before the United States Supreme Court. Hendrix, 142 S.Ct. 2706. However, even presuming the petitioner in Hendrix is successful on appeal to the Supreme Court, the petitioner in this case cannot rely on Hendrix in order to meet the savings clause test.
After direct appeal, one of the counts for being in possession of a firearm as a felon was vacated. Jones, C/A No. 2:00-cr-04010-SRB-1, at doc. 88.
First, as evaluated by the Eighth Circuit in Hendrix, the Fourth Circuit provides a way for petitioners to challenge their convictions via the In re Jones savings clause test - whereas the Eighth Circuit does not. Hendrix, 8 F.4th at 687-88. Second, as with Rehaif, the petitioner's stipulation and testimony during his jury trial that he was a felon also distinguishes the instant matter from Hendrix because the defendant in Hendrix did not stipulate as to his status as a felon and testified that his rights to own a weapon had been restored. See United States v. Jones, C/A No. 2:00-cr-04010-SRB-1, at docs. 33; 36. In light of the foregoing, the petitioner cannot challenge the validity of his felon in possession convictions via Rehaif or Hendrix.
As noted, the petitioner also challenges his aiding and abetting conviction based upon Rosemond. In Rosemond, the Supreme Court held that the intent needed to aid and abet an 18 U.S.C. § 924(c) violation is shown by a defendant knowing in advance that the other individual will use a gun in the predicate crime. Rosemond, 572 U.S. 65. However, here, the petitioner was not charged with a § 924(c) violation - instead he was charged under 18 U.S.C. § 922(g)(1) and (2) as well as received an enhanced sentence under 18 U.S.C. § 924(e). See United States v. Goldsmith, C/A No. 3:06-cr-00101-LC-EMT, at doc. 31. Moreover, as recognized by the Eleventh Circuit, Rosemond did not “purport to change the law of aiding and abetting generally, only to clarify its application to a § 924(c) firearm offense.” United States v. Aplesa, 690 Fed.Appx. 630, 634 (11th Cir. 2017); see also United States v. Persaud, 605 Fed.Appx. 791, 801 (11th Cir. 2015) (explaining that Rosemond “did not hold that its ruling applied beyond aiding or abetting § 924(c) offenses.”). As such, because the petitioner was convicted of aiding and abetting the possession of a firearm by a felon, the holding in Rosemond does not apply to the criminal offense for which the petitioner was convicted. See Smith v. Dobbs, C/A No. 5:20-cv-00058-TMC-KDW, 2022 WL 1057184, at *3 (D.S.C. Jan. 19, 2022) (finding that the savings clause was not met because Rosemond only applies to aiding or abetting § 924(c) offenses, not other aiding and abetting offenses), Report and Recommendation adopted by 2022 WL 702527 (D.S.C. Mar. 9, 2022). Accordingly, the petitioner cannot challenge the validity of his aiding and abetting conviction via Rosemond. As such, the petitioner cannot challenge the validity of his convictions under § 2241 via the savings clause under § 2255 based upon Rehaif or Rosemond.
Secondly, to the extent the petitioner's § 2241 could be liberally construed as a challenge to the sentence he received for his convictions, 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).
Liberally construed, the petitioner argues that his sentence is unconstitutional and should be vacated based upon Rehaif and Rosemond (docs. 1; 1-1). 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 that was dismissed on January 9, 2008. See Lesure, 262 Fed.Appx. 135. The petitioner's first § 2255 motion was decided on the merits on November 3, 2011. See Goldsmith, 2011 WL 5362065. Rosemond was decided by the Supreme Court on March 5, 2014. Rosemond, 572 U.S. 65. On October 16, 2019, Rosemond were held retroactive on collateral review by the Eleventh Circuit. Steiner v. United States, 940 F.3d 1282, 1294 (11th Cir. 2019). As such, Rosemond was decided after the petitioner's first § 2255 motion. However, although Rosemond was held to be retroactive on collateral review, as outlined above, Rosemond does not change the substantive law applicable to the petitioner's sentence because he was not charged with a violation of 18 U.S.C. § 924(c). See Rosemond, 572 U.S. at 77-78; Smith, 2022 WL 1057184, at *3. As such, the petitioner cannot rely on Rosemond to meet the second factor of the Wheeler savings clause test.
Rehaif likewise does not offer relief for the petitioner under Wheeler. 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 § 2255 motion. However, to date, Rehaif has not been held to be retroactive on collateral review by the sentencing circuit; instead, it has only be found to be retroactive on initial § 2255 motions. See Seabrooks v. United States, 32 F.4th 1375, 1382-83 (11th Cir. 2022) (finding that Rehaif is retroactive for purposes of initial § 2255 motions); In re Price, 964 F.3d 1045, 1049 (11th Cir. 2020) (holding that “ Rehaif did not announce a new rule of constitutional law and, even if it did, it has not been made retroactive to cases on collateral review by the Supreme Court” (emphasis omitted) (citing In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019)); see Moore v. Barnes, C/A No. 6:20-cv-03218-SAL, 2022 WL 2187850, at *3 (D.S.C. June 17, 2022) (recognizing that the Eleventh Circuit has yet to recognize Rehaif as retroactive on collateral review). Therefore, the petitioner cannot meet the second prong of Wheeler, because he has not shown that subsequent to his direct appeal (2008) and first § 2255 motion (2011), 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 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).