Opinion
C/A No. 9:18-2041-RMG-BM
09-20-2018
Theophilus James Keaton, Petitioner, v. Warden Bonita Mosley, Respondent.
REPORT AND RECOMMENDATION
The pro se Petitioner, Theophilus James Keaton, an inmate at FCI-Edgefield, brings this 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).
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 for the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89 (2007); Hughes v. Rowe, 449 U.S. 5, 9 (1980); Fine v . City of New York, 529 F.2d 70, 74 (2d Cir. 1975). However, even when considered under this less stringent standard, for the reasons set forth hereinbelow the petition submitted in the instant 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). Such is the case here.
Discussion
Petitioner asserts that he is challenging the use of a sentence enhancement and asks for a resentencing hearing. Petition, ECF No. 1 at 2, 8. He contends that the government "took a state conviction which had been consolidated to produce only one conviction and deconsolidated it for use in applying a sentencing enhancement." Id. at 2. In Petitioner's first ground for relief he challenges the "government's use of prior offense which was consolidated by the state of Florida and the State of South Carolina, and deconsolidated by the federal government for the purposes of giving a sentencing enhancement." Id. at 6. His second ground for relief is that he "was adju[d]ged to be a prior felon, but had no sentences in which he served any term of imprisonment equal to a year and a day or greater" such that he "cannot be a ca[r]eer offender." Id. at 7.
A jury in the United States District Court for the Southern District of Florida convicted Petitioner of: (Count 1) possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1); (Count II) possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1); and (Count III) possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). At trial, the government offered evidence of Petitioner's prior convictions, including a 1997 conviction for carrying a concealed firearm and possession of cocaine with intent to distribute, 2008 convictions for possession of cocaine with intent to distribute and resisting a police officer, and 2009 convictions for possession of cocaine and marijuana with intent to distribute and resisting a police officer. He was designated an armed career criminal and a career offender, and on April 4, 2012 he was sentenced to a total of 360 months of imprisonment, followed by four years of supervised release. The Eleventh Circuit affirmed Petitioner's convictions and sentence on February 25, 2013. See United States v. Keaton, 510 F. App'x 824 (11th Cir. 2013); see also Petition, ECFNo. 1 at 1; United States v Keaton, No. 1:11-cr-20663-CMA-1 (S.D.Fla.).
A federal court may take judicial notice of the contents of its own records. See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1979). The Court may also take judicial notice of factual information located in postings on government web sites. See Tisdale v. South Carolina Highway Patrol, C/A 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 Consolidated Litigation, 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]; Williams v. Long, 585 F.Supp.2d 679, 687-88 (D.Md. 2008)[noting that some courts have found postings on government web sites as inherently authentic or self-authenticating].
Petitioner filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 on April 7, 2014. In a supplement to his motion, Petitioner raised an additional claim that his counsel was ineffective for failing to argue that he was not a career offender or an armed career offender based on Johnson v. United States (which was pending at the time Petitioner filed his supplement). The United States District Court for the Southern District of Florida denied the § 2255 motion on May 4, 2015, noting that at trial Petitioner stipulated to the fact he had been convicted of three separate charges for possession of cocaine with intent to distribute and the government introduced certified judgments of the three prior convictions. The court found that Petitioner's supplemental claim was untimely, but noted that even if the claim was timely, Petitioner's reliance on Johnson was premature given that no opinion had issued (and no favorable opinion had been made retroactive), the outcome of Johnson was unlikely to impact Petitioner's designation as a career offender given his prior controlled substance offenses, and Petitioner failed to demonstrate that his counsel was ineffective. See Keaton v. United States, No. 14-21230-CIV-ALTONAGA/White, 2015 WL 12780912 (S.D.Fla. May 4, 2015). In an unpublished decision, the Eleventh Circuit affirmed, finding that, to the extent Petitioner asserted that his counsel should have argued he was not an armed career criminal because the Armed Career Criminal Act (ACCA) is unconstitutionally vague, he was not prejudiced by counsel's performance because Petitioner's reliance on Johnson was misplaced as it did not call into question the applications of the elements clause and the enumerated crimes of the ACCA's definition of a violent felony. Additionally, the Eleventh Circuit found that Petitioner's argument (in his supplemental Certificate of Appealability) that his sentence was erroneously enhanced under U.S.S.G. §§ 2K2.1 and4B1.1 failed because Petitioner had at least three prior convictions for serious drug offenses and Johnson did not address drug offenses. Keaton v. United States, No. 15-12235-E (11th Cir. Feb. 26, 2016).
See Johnson v. United States, 135 S.Ct. 2551 (2015).
In the present Petition, Petitioner states that he is challenging "[t]he Government's use of a[] sentence enhancement utilizing [his] consolidated prior offense, which generated only one prior conviction." Petition, ECF No. 1 at 2. He asserts that he only received one consolidated sentence for multiple state law violations and the court erred by counting the consolidated sentence as at least "two prior felony convictions" to sentence him as a career offender. Petitioner's Memorandum, ECF No. 1-1 at 2. Additionally, Petitioner appears to challenge his sentence enhancement because he allegedly never served over a year and a day on either of his prior convictions. Id. at 5.
This action is subject to summary dismissal because generally "it 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)). However, a federal prisoner may file a § 2241 petition challenging his conviction if § 2255 is "inadequate or ineffective to test the legality of [his] detention." In re Jones, 226 F.3d 328, 333 (4th Cir. 2000) (internal quotation marks omitted); see 28 U.S.C. § 2255(e). Here, Petitioner challenges only his sentence. Recently, in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), the Fourth Circuit 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 415, 429 (4th Cir. 2018)(citing In re Jones, 226 F.3d at 333-34).
Petitioner fails to meet the above test as he cannot establish that, subsequent to his first § 2255 motion, the "settled substantive law [that established the legality of his sentence] changed and was deemed to apply retroactively on collateral review," as required by the second prong. Wheeler, 886 F.3d at 429. Petitioner appears to argue that he may seek relief pursuant to Wheeler based on United States v. Davis, 720 F.3d 215 (4th Cir. 2013) and United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). ECF No. 1 at 3-5. In Davis, the Fourth Circuit held that "where a defendant receives a 'consolidated sentence'(or 'consolidated judgment') under North Carolina law, it is one sentence and absent another qualifying sentence, the [career offender] enhancement is inapplicable." 702 F.3d at 219. Although Davis was issued after Petitioner's sentencing, the decision predates Petitioner's first § 2255 motion (in April 2014). Further, Davis is not retroactive on collateral review. See Lee v. United States, Nos. 7:07-CR-79-D, 7:11-CV-177-D, 2013 WL 5561438, at *3 (E.D.N.C. Oct. 3, 2013) (unpublished) [holding that Davis "announced a purely procedural rule that is not retroactive on collateral review"]. Additionally, Petitioner does not claim that an underlying state conviction from North Carolina (he only discusses Florida and South Carolina convictions) was used to enhance his federal sentence.
In Simmons, the Fourth Circuit changed the method for determining whether prior convictions under North Carolina law are considered felonies under federal sentencing laws. United States v. Simmons, 649 F.3d at 244. Simmons was rendered retroactive by Miller v. United States, 735 F.3d 141 (4th Cir. 2013), which was prior to the filing of Petitioner's first § 2255. Further, Petitioner does not claim to have an underlying state conviction from North Carolina that was used to enhance his federal sentence. Therefore, even though Simmons announces a new, substantive change in the law that is retroactive, Simmons does not affect Petitioner's sentence. Accordingly, under Fourth Circuit precedent, Petitioner is unable to satisfy § 2255's savings clause to seek relief under § 2241 because he does not rely on a retroactive change in the law that applies to his sentence. As a result, this Court lacks jurisdiction and Petitioner's potential remedy may be to seek permission from the United States Court of Appeals for the Eleventh Circuit to file a successive section 2255 petition in the District Court for the Southern District of Florida, in which he was sentenced.
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/_________
Bristow Marchant
United States Magistrate Judge September 20, 2018
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).