Opinion
C/A No. 8:19-cv-03390-HMH-JDA
02-28-2020
Kedrick Howard Hughes, Petitioner, v. W. E. Mackelburg, Warden, Respondent.
REPORT AND RECOMMENDATION
Kedrick Howard Hughes ("Petitioner") is a prisoner in the custody of the Federal Bureau of Prisons and is currently incarcerated in South Carolina at the Estill Federal Correctional Institution. Proceeding pro se, he brings this habeas action under 28 U.S.C. § 2241. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned Magistrate Judge is authorized to review such petitions for relief and submit findings and recommendations to the District Court. For the reasons below, this action is subject to summary dismissal for lack of jurisdiction.
BACKGROUND
Petitioner filed a Petition pursuant to 28 U.S.C. § 2241 and a memorandum in support of his Petition, challenging his federal conviction. [Docs. 1, 1-1.] The Court has carefully reviewed the Petition and memorandum and takes judicial notice of the records in Petitioner's criminal case in the sentencing court. See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining 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 Conviction, Sentence, and Appeal
In December 2015, a grand jury in the United States District Court for the Southern District of Florida returned a three-count Indictment against Petitioner, charging him with various crimes including possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1), at Count 1 (the "firearms charge"). [Doc. 1-1 at 2]; United States v. Hughes, No. 1:15-cr-20990-KMM-1 (S.D. Fla. Dec. 21, 2015) ("Hughes I"), Doc. 8 at 1. On February 8, 2016, Petitioner entered a guilty plea to Counts 1 and 2 of the Indictment, which included the firearms charge, and the Government agreed to dismiss Count 3. [Doc. 1 at 2]; Hughes I, Docs. 38, 39, 40. On April 28, 2016, Petitioner was sentenced to a total term of imprisonment of 262 months, which included a term of 262 months' imprisonment as to Count 1 and a term of 240 months' imprisonment as to Count 2 to run concurrently to Count1. [Doc. 1-1 at 3]; Hughes I, Docs. 53, 54. Petitioner filed a direct appeal and, on June 8, 2017, the Eleventh Circuit Court of Appeals affirmed Petitioner's conviction and sentence. [Doc. 1-1 at 3]; United States v. Hughes, 688 F. App'x 889 (11th Cir. 2017).
An amended judgment was entered on May 24, 2016, to correct a clerical error in the original judgment sheet. Hughes, Doc. 64. However, the amended judgment did not alter the sentence in any way.
Petitioner's § 2255 Motion
On November 16, 2018, Petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Doc. 1 at 4]; Hughes v. United States, No. 1:18-cv-24815-KMM (S.D. Fla. Nov. 16, 2018) ("Hughes II"), Doc. 1. The sentencing court dismissed Petitioner's motion on February 24, 2019. Hughes II, Doc. 11 (adopting the Report and Recommendation at Doc. 9). Petitioner filed a notice of appeal, but the Eleventh Circuit Court of Appeals denied a certificate of appealability on July 19, 2019. Hughes II, Docs. 12, 16, 17.
Petitioner's Present Action
Petitioner now seeks habeas relief pursuant to 28 U.S.C. § 2241 in this Court, claiming that he was wrongfully convicted for the firearms charge in light of the Supreme Court's decision in Rehaif v. United States, 139 S. Ct. 2191 (2019). [Doc. 1 at 8.] Petitioner challenges only his conviction for the firearms charge at Count 1 and not his conviction at Count 2. [Id. at 14.] For his relief, Petitioner asks that the case be remanded to the sentencing court for review of his case in light of Rehaif. [Id.]
Petitioner purportedly asserts his claim under the Fourth Circuit's savings clause test announced in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018). [Id. at 3.] Petitioner contends that he meets the elements of the Wheeler test. [Id. at 3-5.] Petitioner further contends that he is actually innocent of the charged crime. [Id. at 6.] According to Petitioner, his guilty plea is invalid because he entered it without knowing that the firearms charge violated his constitutional rights. [Id. at 7.] Specifically, Petitioner contends (1) that his guilty plea did not accurately reflect the knowledge element required by Rehaif, preventing him from arguing that he did not know that he unlawfully possessed a firearm, (2) that the Government did not show that he knew that he was in a class of individuals prohibited from possessing a firearm or that it was unlawful for him to possess a firearm, (3) that the Indictment was invalid because it did not accurately allege the knowledge element, and (4) that he did not knowingly and voluntarily enter a guilty plea because he was not provided with notice of the nature of the charges against him. [Id.]
As explained below, the proper savings clause test applicable to this case is not the Wheeler test but rather the test contained in In re: Jones, 226 F.3d 328, 332 (4th Cir. 2000). Wheeler applies to sentencing challenges while Jones applies to challenges to convictions.
In sum, Petitioner contends that, in light of Rehaif, he is innocent of the firearms charge and that his conviction is therefore unconstitutional because the Government did not prove that he was in a class of individuals prohibited from possessing a firearm or that it was unlawful for him to possess a firearm. [Id. at 12.]
APPLICABLE LAW
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings pursuant to the procedural provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted 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, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
Furthermore, this Court is charged with screening Petitioner's lawsuit to determine if "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4 of Rules Governing Section 2254 Cases in the United States District Courts; see also Rule 1(b) Rules Governing Section 2254 Cases in the U.S. District Courts (2012) (explaining that a district court may apply these rules to a habeas corpus petition not filed pursuant to § 2254). Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, however, the Petition is subject to summary dismissal.
DISCUSSION
Savings Clause Test
Ordinarily, "defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255." Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (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 a prisoner's conviction or sentence when § 2255 is "inadequate or ineffective to test the legality of . . . detention." 28 U.S.C. § 2255(e); In re Jones, 226 F.3d at 333. Accordingly, Petitioner can challenge his federal sentence under § 2241 only if 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, Petitioner's § 2241 action is barred unless he can demonstrate that the relief available to him under § 2255 is inadequate or ineffective. 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." In re Vial, 115 F.3d at 1194 n.5 (citation omitted).
The savings clause test is a jurisdictional requirement that must be met before the Court can entertain a petition filed pursuant to § 2241. United States v. Wheeler, 886 F.3d 426, 429 (4th Cir. 2018). Accordingly, the Court may raise subject matter jurisdiction sua sponte, and if a petitioner cannot meet the savings clause requirements, then the § 2241 petition "must be dismissed for lack of jurisdiction." Rice, 617 F.3d at 807.
The Fourth Circuit has established a test for evaluating whether a petitioner meets the savings clause under § 2255 when he contests his conviction. In re Jones, 226 F.3d at 333-34. Specifically, a petitioner can show that § 2255 is inadequate or ineffective to challenge a conviction when:
(1) at the time of 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.Id. at 333-34. Notably, however, the savings clause is not satisfied merely because a petitioner's prior § 2255 motion was unsuccessful or because a petitioner is unable to meet the requirements to file a successive § 2255 motion. Chisholm v. Pettiford, No. 6:06-cv-2032-PMD-WMC, 2006 WL 2707320, at *2 (D.S.C. Sept. 18, 2006).
The Fourth Circuit has established a different test for evaluating whether a petitioner meets the savings clause under § 2255 when he contests his sentence rather than his conviction:
[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.Wheeler, 886 F.3d at 429.
Here, because Petitioner challenges his conviction, the proper test is that articulated in In re Jones rather than Wheeler. As explained below, Petitioner's § 2241 action should be dismissed because he has not established the elements of the In re Jones test.
Analysis
As noted, Petitioner was convicted for the crime of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). [Doc. 1-1 at 7.] Section 922(g)(1) prohibits any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year (a "convicted felon") from possessing any firearm or ammunition. 18 U.S.C. § 922(g)(1). "To convict someone under § 922(g)(1), the government must prove four elements: (1) the defendant was a felon; (2) the defendant knew he was a felon; (3) the defendant knowingly possessed a firearm or ammunition; and (4) the firearm or ammunition was in or affecting interstate commerce." United States v. Benamor, 937 F.3d 1182, 1186 (9th Cir. 2019). In 2019, the Supreme Court decided Rehaif, holding "that in a prosecution under 18 U.S.C. § 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." 139 S. Ct. at 2200.
Petitioner contends that Rehaif marked a change in the substantive law applicable to his conviction and that he is now innocent of the firearms charge. However, Petitioner cannot satisfy the second element of the savings clause test "because the crime for which [he] was convicted remains a criminal offense." Steele v. Hudgins, No. 5:19-cv-244, 2019 WL 5799976, at *1 (N.D.W. Va. Nov. 7, 2019); see also Hoffman v. Breckon, No. 7:18-cv-00265, 2020 WL 929589, at *9 (W.D. Va. Feb. 26, 2020) ("Rehaif did not change substantive law because the conduct for which the petitioner was convicted is still illegal.") (collecting cases). Where a defendant enters a valid plea to a § 922(g) charge, he cannot meet the savings clause test through a Rehaif challenge because "'[a] knowing, voluntary, and intelligent plea to an offense conclusively establishes the elements of the offense and the material facts necessary to support the conviction.'" Steele, 2019 WL 5799976, at *1 (quoting United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993)); see also Taylor v. Huggins, No. 5:19-cv-291, 2019 WL 6481799, at *4 (N.D.W. Va. Nov. 5, 2019), Report and Recommendation adopted by 2019 WL 6467823 (N.D.W. Va. Dec. 2, 2019). As many courts have noted, Rehaif is inapplicable to a conviction obtained by a guilty plea because "Rehaif was in the context of a jury trial where the jury was instructed, over defendant's objection, that the United States was not required to prove that defendant knew of his status as an illegal alien that preclud[ed] him from possessing a firearm." Rucker v. United States, No. 5:18-cr-57-KDB-DCK-1, 2019 WL 6130465, at *3 (W.D.N.C. Nov. 18, 2019) (noting Petitioner freely and voluntarily pled guilty to that offense and "admit[ted] to being in fact guilty as charged"). In contrast, Rehaif does not apply where a defendant made a "knowing and voluntary guilty plea to violating § 922(g) [and thus] admitted all the elements of that offense, including the knowledge of his status as a convicted felon." Id. (emphasis added) (citing Willis, 992 F.2d at 490); see also Allen v. Dobbs, No. 1:20-cv-00321-HMH-SVH, 2020 WL 901407, at *2 (D.S.C. Feb. 25, 2020) (explaining the government satisfied its burden of proof where defendant pled guilty to having knowingly possessed a firearm and knowingly been a felon at the time of possession).
Because Petitioner cannot show that the conduct of which he was convicted is no longer criminal, he cannot satisfy the second element of the savings clause test and this Court lacks jurisdiction over his Petition. Rice, 617 F. 3d at 807.
The Court further notes that Petitioner simply argues that he is actually innocent in light of Rehaif without arguing that he was unaware of his status of being a convicted felon. Any such argument would be implausible given that Petitioner stipulated at his guilty plea hearing that, if the case were to proceed to trial, the Government would prove beyond a reasonable doubt that "[p]rior to [the offense date], [Petitioner] had been convicted of a crime punishable by imprisonment for more than one year," that "[h]is civil rights have not been restored," and that "these facts . . . are sufficient to prove beyond a reasonable doubt the defendant's guilt with respect to [the firearms charge]." See Hughes I, Doc. 39 at 1-2. A stipulation as to the requisite elements of a § 922(g) charge, even after Rehaif, is binding and satisfies the Government's burden. See Benamor, 937 F.3d at 1188 ("Defendant stipulated at trial that, on the date when he was arrested in this case for possession of the shotgun, he had been convicted of a crime punishable by imprisonment for a term exceeding one year. That factual stipulation was binding, and it relieved the government of the burden to prove Defendant's status as a felon.").
CONCLUSION AND RECOMMENDATION
For the reasons explained above, this Court lacks jurisdiction to consider the Petition filed in this case. Accordingly, it is recommended that the § 2241 Petition be dismissed without requiring the Respondent to file an answer or return.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge February 28, 2020
Greenville, South Carolina
Petitioner's attention is directed to the important notice on the next page.
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
300 East Washington Street, Room 239
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).