Opinion
C/A No. 9:20-3779-RMG-MHC
12-02-2020
Francisco Herrera, Petitioner, v. Nannette Barnes, Warden, Respondent.
REPORT AND RECOMMENDATION
The pro se Petitioner, Francisco Herrera, a federal inmate at FCI-Bennettsville, brings this action as an 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).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. 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 the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). However, even when considered under this less stringent standard, for the reasons set forth below, the Petition submitted in this 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); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for "all civil actions").
A. BACKGROUND
On July 24, 2017, Petitioner signed a plea agreement in the District Court for the Western District of Tennessee, agreeing to enter a plea of guilty to four counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On October 24, 2017, he was sentenced to 77 months' imprisonment to be followed by two years' supervised release. See United States v. Herrera, No. 2:17-cr-20096-SHL-1 (W.D. Tenn). Petitioner states that he did not file a direct appeal. See Petition, ECF No. 1 at 2; Memorandum in Support of Petition, ECF No. 1-1 at 6. He did, however, appeal the denial of his motion to suppress, which the Sixth Circuit Court of Appeals affirmed on May 23, 2018. See United States v. Herrera, 733 F. App'x 821 (6th Cir. 2018). Petitioner did not file a motion in the sentencing court to vacate, correct, or set aside his sentence pursuant to 28 U.S.C. § 2255. See ECF No. 1 at 4-5; ECF No. 1-1 at 6.
This Court may take judicial notice of factual information located in postings on government websites. See Tisdale v. South Carolina Highway Patrol, 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 Consol. Litig., 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).
B. DISCUSSION
In the present Petition, Petitioner contends that his "conviction and the subsequent imposition of sentence is unlawful in light of recent Supreme Court and circuit court cases with respect to 18 U.S.C. § 922(g)(1) offenses[.]" ECF No. 1 at 6. He requests that this Court conclude that the sentencing court accepted his plea in "plain error" requiring that his conviction and sentence be vacated. Id. at 8. In particular, Petitioner asserts that he is entitled to relief in light of the Supreme Court's decision in Rehaif v. United States, 139 S.Ct. 2191, 2200 (2019) (finding that to obtain a conviction under § 922(g) the government "must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm"). He contends he is entitled to relief because the government allegedly did not allege or prove, nor did Petitioner plead guilty to or otherwise agree that the government could prove, that he "knew" he was a previously convicted felon at the time he possessed the firearm and that he knew, as a convicted felon, he fell within a category of persons barred from possessing a firearm. See ECF No. 1-1 at 12. However, this action should be dismissed because Petitioner does not meet the § 2255 savings clause to allow him to bring this § 2241 action.
"[I]t 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)). Petitioner cannot challenge his federal conviction and sentence under § 2241 unless he can satisfy the § 2255 savings clause, which provides:
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); see also Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001); Ennis v. Olsen, 238 F.3d 411 (4th Cir. 2000).
Petitioner first challenges the legality of his conviction. Section 2255 is inadequate and ineffective to test the legality of a conviction when:
(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 gatekeeping provisions of § 2255 because the new rule is not one of constitutional law.In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000). This test set forth in In re Jones (the Jones test) was formulated expressly to provide a remedy for the "fundamental defect presented by a situation in which an individual is incarcerated for conduct that is not criminal but, through no fault of his own, he has no source of redress." Id. at 333 n. 3.
Here, however, Petitioner cannot meet the § 2255 savings clause pursuant to the Jones test because he has not filed a § 2255 motion in the sentencing court. A prisoner in federal custody must first proceed with a § 2255 motion before attempting to satisfy the "savings clause." See Hernandez v. Drew, 371 F. App'x 991, 993 (11th Cir. Apr. 7, 2010) (noting that a prisoner may not circumvent the requirements for filing a § 2255 motion merely by filing a § 2241 petition.); Dinkins v. Thomas, No. 8:15-490-RMG, 2015 WL 1877434, at *4 (D.S.C. April 23, 2015); Hackett v. Atkinson, No. 9:13-1274-JFA-BM, 2013 WL 3972393, at *3 (D.S.C. July 31, 2013). Moreover, Petitioner cannot meet the second prong of this test because he has not alleged that subsequent to his direct appeal and his first § 2255 motion, the substantive law changed such that the conduct of which he was convicted is deemed not to be criminal.
Petitioner also challenges the legality of his sentence. The Fourth Circuit, in United States v. Wheeler, 886 F.3d 415, 423-26 (4th Cir. 2018), held 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)(the Wheeler test). In this case, however, Petitioner cannot satisfy the Wheeler test, either. Notably, as set forth above, Petitioner failed to file a § 2255 motion prior to filing this § 2241 petition. Accordingly, he cannot meet the second prong of the Wheeler test.
To the extent Petitioner may contend that a § 2255 petition would have been untimely because the due date occurred in November of 2018 and the law upon which he relies did not change until after that date (ECF No. 1-1 at 6), the possibility that a § 2255 motion filed by Petitioner in the sentencing court (the Western District of Tennessee) may be rejected on the merits or ruled to be untimely or successive does not render the § 2255 remedy inadequate or ineffective. See Chavez-Tovar v. Atkinson, C/A No. 1:12-1310-DCN-SVH, 2012 WL 3028024, at *2-3 (D.S.C. June 28, 2012), report and recommendation adopted, 2012 WL 3877674 (D.S.C. Sept. 6, 2012); see also In re Vial, 115 F.3d at 1194 n. 5.
Additionally, Petitioner fails to meet the second prong under Wheeler because he cannot show that the Sixth Circuit has found that Rehaif applies retroactively on collateral review. Petitioner appears to argue that Rehaif applies retroactively based on Fourth Circuit law. However, [i]n evaluating substantive claims under the savings clause," a district court must "look to the substantive law of the circuit where a defendant was convicted." Hahn v. Moseley, 931 F.3d 295, 301 (4th Cir. 2019); see also Ponder v. United States, 800 F. App'x 181, 183 (4th Cir. Jan. 30, 2020)(noting that in reviewing a § 2241 denial by a district court, the Fourth Circuit applies Fourth Circuit procedural law, but "look[s] to the substantive law of the circuit where a defendant was convicted") (citing Hahn, 931 F.3d at 301).
Petitioner was convicted in the Western District of Tennessee, which is within the Sixth Circuit. Although the Sixth Circuit has not specifically ruled on the issue, district courts within the Sixth Circuit, including specifically the Western District of Tennessee, have concluded that Rehaif does not apply retroactively on collateral review. See United States v. Burley, No. 4:15-cr-352, 2020 WL 2126682, *1 (N.D. Oh. May 5, 2020); Wright v. United States, No. 1:16-cv-01080, 2020 WL 718237 (W.D. Tenn. Feb. 12, 2020); Dowlen v. United States, No. 3:16-cv-0676, 2020 WL 489460, *2 (M.D. Tenn. Jan. 30, 2020); see also Mann v. Young, No. 5:19-CV-00548, 2020 WL 5806726, at *1 (S.D.W. Va. Sept. 29, 2020) (finding that the petitioner convicted in a district court of the Sixth Circuit failed to meet the second prong of the saving clause test because Rehaif is not deemed retroactive in the circuit of the petitioner's conviction), appeal docketed No. 20-7548 (4th Cir. Oct. 20, 2020).
For the reasons discussed above, Petitioner fails to satisfy the savings clause in 28 U.S.C. § 2255(e) pursuant to the tests articulated in Jones and Wheeler. Thus, the Court must dismiss his § 2241 petition for lack of jurisdiction. See Habeck v. United States, 741 F. App'x 953, 954 (4th Cir. 2018) ("The requirements of the § 2255(e) savings clause are jurisdictional."); see Rice v. Riviera, 617 F.3d at 807 ("[T]he district court lacked jurisdiction over the [h]abeas [petition] because Rice is unable to satisfy the second prong of the Jones rule.").
C. 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/_________
Molly H. Cherry
United States Magistrate Judge December 2, 2020
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).