Summary
applying Fourth Circuit's procedural savings clause test for § 2241 petition filed in the Fourth Circuit, and substantive law of the Fifth Circuit where petitioner was convicted
Summary of this case from Lawrence v. WilliamsOpinion
C/A No. 5:18-2951-BHH-KDW
11-30-2018
Michael D. Holland, #54089-177, Petitioner, v. Warden Bryon M. Antonelli, Respondent.
REPORT & RECOMMENDATION
Petitioner, a self-represented prisoner confined at FCI Williamsburg, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. ECF No. 1. Pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court. See 28 U.S.C. §§ 1915(e), 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).
I. Factual Background
On January 31, 2017, in the United States District Court for the Northern District of Texas (the "Sentencing Court"), Petitioner pleaded guilty before a United States Magistrate Judge to one count of conspiracy to interfere with commerce by robbery, in violation of 18 U.S.C. § 1915(a) and one count of using, carrying, brandishing, and discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). See United States v. Holland, 3:16-cr-00116-L-1 ("Sentencing Docket"), ECF Nos. 126-27. The Sentencing Court entered judgment on June 6, 2017, sentencing Petitioner to 100 months for the robbery and 120 months, to run consecutively, for his violation of § 924(c). Sentencing Docket, ECF No. 150. Petitioner did not appeal, nor did he file a 28 U.S.C. § 2255 motion, or any other post-conviction relief motion in the Sentencing Court.
On October 31, 2018, Petitioner filed this habeas action pursuant to 28 U.S.C. § 2241, requesting the court vacate his § 924(c) conviction and remand his case to the Sentencing Court for resentencing.
II. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in this case. The review was conducted pursuant to the procedural provisions of the Rules Governing Habeas Corpus Cases Under Section 2254 and the Anti-Terrorism and Effective Death Penalty Act 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); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979).
This court is required to construe pro se petitions liberally. Such pro se petitions are held to a less stringent standard than those drafted by attorneys, see Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978), and a federal district court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, however, the Petition submitted in this case is subject to summary dismissal. 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 currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
III. Discussion
Generally, a § 2241 habeas petition "'attacks the execution of a sentence rather than its validity,' whereas a § 2255 motion 'attacks the legality of detention.'" Brown v. Rivera, No. 9:08-CV-3177-PMD-BM, 2009 WL 960212, at *2 (D.S.C. April 7, 2009) (citation omitted). Here, Petitioner's allegations show that he is attacking the validity of his conviction. This type of claim should usually be brought under § 2255. Rice v. Rivera, 617 F.3d 802 (4th Cir. 2010). However, § 2255 contains a savings clause which permits a district court to consider a § 2241 petition challenging the validity of a petitioner's detention when a § 2255 petition is inadequate or ineffective to test the legality of his detention. Id. The savings clause 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, Petitioner's § 2241 Petition is barred unless he can demonstrate that the relief available to him under § 2255 is inadequate or ineffective. In the Fourth Circuit, a § 2255 motion is inadequate or ineffective to test the legality of a prisoner's sentence if:
(1) [A]t 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 415, 429 (4th Cir. 2018).
When considering a § 2241 petition from a prisoner convicted in a different circuit, the court applies the Fourth Circuit's procedural framework set forth above and the substantive law of the circuit in which the prisoner was convicted and sentenced—here, the Fifth Circuit. See Eames v. Jones, 793 F. Supp. 2d 747, 750 (E.D.N.C. 2011) (finding the substantive law of the circuit of conviction should apply to § 2241 proceedings held in a different circuit); Van Hoorelbeke v. United States, No. 0:08-3869-CMC-PJG, 2010 WL 146289, at *4 (D.S.C. Jan. 8, 2010) (citing Chaney v. O'Brien, No. 7:07CV00121, 2007 WL 1189641, at *3 (W.D. Va. Apr. 23, 2007) (holding that in applying the second prong of the Jones test "the substantive law relevant to a § 2241 petition is that of the circuit in which the petitioner was convicted")).
The foundation of the Wheeler test is the Jones test. In re Jones, 226 F.3d 328 (4th Cir. 2000).
In this case, Petitioner's case should be summarily dismissed. Petitioner asserts his sentence for his § 924(c) conviction is unconstitutional under the United States Supreme Court's opinion in Johnson v. United States. 135 S. Ct. 2551 (2015) (holding the Armed Career Criminal Act ("ACCA") residual clause, 18 U.S.C. § 924(e)(2)(B)(ii), void for vagueness). Johnson, however specifically considered the residual clause of § 924(e)(2)(B), not the section governing Petitioner's sentence, § 924(c), or its residual clause, § 924(c)(3)(B). Petitioner asserts that the Court's logic in Johnson applies with equal weight to § 924(c)'s residual clause. However, the Fifth Circuit has expressly rejected this argument, see United States v. Jones, 854 F.3d 737, 740 (5th Cir. 2017) (holding "the definition of 'crime of violence' under § 924(c)(3)(B) is not unconstitutionally vague" after Johnson), and consistently denies relief under this precedent, see United States v. Johnson, 880 F.3d 226, 235 (5th Cir. 2018) (finding defendant's argument that § 924(c)(3)(B) is unconstitutionally vague under Johnson foreclosed by its decision in United States v. Jones); Smith v. Jones, No. 3:16-cv-1780-K, 2018 WL 1014171, at *1-2 (N.D. Tex. Feb. 21, 2018) (denying with prejudice § 2255 motion based on alleged unconstitutionality of § 924(c)(3)(B) after the Supreme Court's decision in Johnson).
Moreover, even if Petitioner could establish that § 924(c)(3)(B)'s residual clause is unconstitutionally vague, he would still not be entitled to relief. Petitioner's § 924(c) conviction is predicated on his robbery conviction, which qualifies as a crime of violence under § 924(c)(3)(A)'s force clause, not the residual clause of § 924(c)(3)(B). See Buck v. United States, 847 F.3d 267, 274-75 (5th Cir. 2017). Thus, the constitutionality of § 924(c)(3)(B) is irrelevant to Petitioner's case.
Further, the Supreme Court decided Johnson on June 26, 2015, and made it retroactive to cases on collateral review via its decision in Welch v. United States, 136 S. Ct. 1257 (2016), on April 18, 2016. Thus, both decisions pre-dated Petitioner's guilty plea and sentencing and were not "subsequent to" the time Petitioner had to appeal his 2017 sentence or file a § 2255 motion, as required to implicate the § 2255 savings clause.
Because Petitioner is foreclosed from bringing a § 2241 petition in this court to challenge his sentence, this court lacks subject matter jurisdiction over the petition and this case should be dismissed. 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).
IV. Recommendation
Accordingly, it is recommended that the Petition for a Writ of Habeas Corpus in this case be dismissed without prejudice.
Even though his claims may not be amended to state appropriate grounds for habeas relief under § 2241, the recommendation is for dismissal without prejudice because the issue of whether claims are appropriately raised under the § 2255 savings clause is jurisdictional. See Wheeler, 886 F.3d at 423. The Fourth Circuit Court of Appeals has held that dismissals for lack of subject matter jurisdiction must be entered without prejudice. Southern Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013).
IT IS SO RECOMMENDED. November 30, 2018
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
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
401 W. Evans Street
Florence, South Carolina 29501
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).