Opinion
C. A. 9:20-cv-02089-TLW-MHC
07-09-2021
Michael L. Moore, Petitioner, v. Warden of FCI Edgefield, Respondent.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY UNITED STATES MAGISTRATE JUDGE
Petitioner Michael L. Moore (“Petitioner”), a federal inmate currently incarcerated at Federal Correctional Institution (“FCI”) Edgefield, proceeding pro se, petitions the Court for a writ of habeas corpus under 28 U.S.C. § 2241. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(1)(c) (D.S.C.), the petition was assigned to the undersigned for a Report and Recommendation. Respondent filed a Motion for Summary Judgment, ECF No. 23, and Petitioner filed a Response in Opposition, ECF No. 29. For the reasons that follow, the Court concludes that it lacks subject matter jurisdiction to entertain the Petition and the matter should be dismissed.
I. BACKGROUND
A. Petitioner's conviction and sentence
In September 2008, a federal grand jury in the Eastern District of Virginia issued an indictment charging Petitioner with possessing with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) (Count One); being a felon in possession of a semi-automatic 9 mm handgun and ammunition, in violation of 18 U.S.C. § 922(g)(1) (Count Two); and possessing a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c) (Count Three). ECF No. 28 at 4. A one-day trial occurred on November 17, 2008. See ECF No. 23-2. Of particular importance, the parties stipulated at trial that Petitioner had a prior felony conviction:
Prior to July 10, 2008, Michael Moore, the defendant herein, was convicted of a crime punishable by imprisonment for a term exceeding one year, and there has been no restoration of the defendant's civil rights, including the right to own or possess a firearm.ECF No. 23-2 at 78-79. A jury convicted Petitioner on all three counts. ECF No. 23-2 at 140-43.
Petitioner's presentence report identified two felony convictions, one from the early 1990s and the other in the early 2000s. ECF No. 28 at 8, 12-13. In February 2009, the District Court in the Eastern District of Virginia determined that Petitioner qualified as a career offender and sentenced Petitioner to 60 months' imprisonment on Count One, 120 months' imprisonment on Count Two, and 180 months' imprisonment on Count Three, with each term to run consecutively. Petitioner appealed, challenging his convictions on Counts One and Three and the application of the career-offender enhancement at sentencing. The Fourth Circuit affirmed. See United States v. Moore, 350 Fed.Appx. 793 (4th Cir. 2009).
B. Petitioner's prior post-conviction motions
Petitioner filed his first habeas petition pursuant to 28 U.S.C. § 2255 in September 2010. ECF No. 1 at 4. The District Court denied relief, United States v. Moore, No. 3:08CR389-HEH, 2013 WL 3805144 (E.D. Va. July 22, 2013), and the Fourth Circuit denied a certificate of appealability and dismissed the appeal, United States v. Moore, 546 Fed.Appx. 319 (4th Cir. 2013). He filed another § 2255 motion in April 2016, which the District Court dismissed for lack of jurisdiction as impermissibly second-or-successive. ECF No. 1 at 4; see also United States v. Moore, No. 3:08CR389-HEH, 2016 WL 2593930, at *1 (E.D. Va. May 4, 2016).
Petitioner has also filed three prior petitions pursuant to 28 U.S.C. § 2241. The first petition was dismissed without prejudice because Petitioner failed to establish that he exhausted his administrative remedies and did not demonstrate that he was actually innocent of the charges for which he was convicted and sentenced. Moore v. United States, No. 9:10-169-TLW-BM, 2010 WL 2893815 (D.S.C. Apr. 19, 2010), report and recommendation adopted, No. CIV.A. 9:10-169-TLW-BM, 2010 WL 2893814 (D.S.C. July 22, 2010). The second and third petitions were dismissed without prejudice because Petitioner failed to show that he met the savings clause under § 2255. See Moore v. Mosley, No. 9:17-2461-TLW-BM, 2018 WL 7204226 (D.S.C. Jan. 12, 2018), report and recommendation adopted, No. 9:17-CV-2461-TLW, 2019 WL 451204 (D.S.C. Feb. 5, 2019); Moore v. Warden FCI-Edgefield, No. 9:18 1050-TLW-BM, 2018 WL 7204227 (D.S.C. Jun. 7, 2018), report and recommendation adopted, No. 9:18-CV-1050-TLW, 2019 WL 451213 (D.S.C. Feb. 5, 2019).
C. Petitioner's current § 2241 petition
Petitioner filed his current, fourth, § 2241 habeas petition with this Court, raising a single ground for relief. ECF No. 1. Petitioner contends that his felon-in-possession conviction under 18 U.S.C. § 922(g)(1) should be vacated in light of Rehaif v. United States, 139 S.Ct. 2191 (2019), because he was not notified of all the elements of his charge. ECF No. 1 at 6-7. Petitioner does not challenge any of his other convictions. See ECF No. 1 at 6-8.
II. LEGAL STANDARD
Under established local procedure in this judicial district, a careful review has been made of this petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and other habeas corpus statutes. Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b), Rules Governing § 2254 Cases, 28 U.S.C.A. foll. § 2254.
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
III. DISCUSSION
Petitioner contends in this fourth § 2241 petition that the District Court tried him without giving him notice of all of the elements of the offense charge, 18 U.S.C. § 922(g)(1), in violation of his due process rights as outlined in Rehaif v. United States, 139 S.Ct. 2191 (2019). For the reasons that follow, the Court finds it lacks jurisdiction over the § 2241 petition.
A. The savings clause exception in 28 U.S.C. § 2255
Congress requires every federal prisoner who collaterally attacks his conviction to employ the motion mechanism provided in 28 U.S.C. § 2255. However, there is one exception-if § 2255 appears “inadequate or ineffective, ” then § 2255(e) provides that a federal prisoner may apply for a writ of habeas corpus under § 2241. Farkas v. Butner, 972 F.3d 548, 550 (4th Cir. 2020). This mechanism has been referred to as the “savings clause” exception. Id.
To trigger the “savings clause” of § 2255(e) and proceed under § 2241, a petitioner must meet the savings clause test as contemplated in In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000) (challenges to convictions) or United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018) (challenges to sentences). Significantly, the savings clause is a “jurisdictional provision.” Wheeler, 886 F.3d at 423. Thus, if a petitioner cannot meet one of the Jones or Wheeler requirements, then the § 2241 petition “must be dismissed for lack of jurisdiction.” Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010).
Here, Petitioner only challenges the legality of his conviction, not his sentence. Therefore, the test under Wheeler is inapplicable to Petitioner's case.
To demonstrate that a § 2255 motion is inadequate or ineffective to test the legality of a conviction, 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 gatekeeping provisions of § 2255 because the new rule is not one of constitutional law.In re Jones, 226 F.3d at 333-34.
Initially, the Court notes that Petitioner meets the first and third prongs of the Jones test because the legality of his felon-in-possession conviction was established by settled precedent at the time of his conviction, and Rehaif is not a new rule of constitutional law. See United States v. Lockhart, 947 F.3d 187, 196 (4th Cir. 2020) (“The Court's holding in Rehaif abrogated the prior precedent of this Circuit, which did not require proof of a defendant's knowledge that he belonged to the relevant category.”).
“In evaluating substantive claims under the savings clause, ” a 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). The applicable “procedural law, ” however, is that of the district court's home circuit. Id. Because Petitioner was convicted in the Eastern District of Virginia, this Court's analysis relies only on Fourth Circuit precedent. Cf. Hughes v. Mackelburg, No. CV81903390HMHJDA, 2020 WL 1429351, at *1 n.2 (D.S.C. Mar. 24, 2020) (applying the procedural law of the Fourth Circuit and the substantive law of the Eleventh Circuit in analyzing a § 2241 petition brought via § 2255's savings clause).
However, Petitioner fails to satisfy the second prong of the Jones test. As noted above, the second prong of the Jones test is that subsequent to a petitioner's direct appeal and first § 2255 motion, the substantive law changed and made the conduct for which the petitioner was convicted no longer criminal. In re Jones, 226 F.3d at 333-34. “The plain meaning of the phrase ‘the conduct of which the prisoner was convicted' refers to the conduct that a jury found beyond a reasonable doubt supported the prisoner's conviction.” Hahn v. Moseley, 931 F.3d 295, 304-05 (4th Cir. 2019) (Wynn, J., concurring). In other words, in analyzing whether the second prong of the Jones test is satisfied, the Court looks to the facts the government introduced to the jury at trial. See id. (Wynn, J., concurring) (“Notably, Jones focused not on whether a petitioner was ‘actually innocent,' but whether a subsequent change in statutory construction amounted to a ‘fundamental defect' in the petitioner's prosecution.” (emphasis added)).
Similarly, Rehaif concerned the government's burden of proof at trial-specifically, the Supreme Court held that to prove an offense under the felon-in-possession statutes 18 U.S.C. §§ 922(g) and 924(a)(2), the government must show that a defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed the firearm. 139 S.Ct. at 2194. In short, the word “knowingly” applied both to a defendant's conduct and to a defendant's status. Id.
In the instant matter, as in Rehaif, Petitioner went to trial on the felon-in-possession charge under § 922(g)(1). However, here, the government met its burden of proof as to the knowledge-of-status element because Petitioner entered a stipulation at trial that he had a prior felony conviction. ECF No. 23-2 at 78-79. In other words, Petitioner stipulated to the knowledge-of-status element, effectively relieving the government of its burden to prove this element. See Christian Legal Soc'y Chapter of Univ. of Cal. v. Martinez, 561 U.S. 661, 677-78 (2010) (stating that factual stipulations “have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact” (citation omitted)).
In effect, Rehaif's mandate-that the government must prove the knowledge-of-status element-is irrelevant in Petitioner's case, as the government proved this element via the stipulation. Thus, all of the elements that are required in a § 922(g) conviction post-Rehaif were actually presented to the jury at Petitioner's trial, and that jury found beyond a reasonable doubt that Petitioner's conduct supported a conviction under § 922(g)(1). See Hahn, 931 F.3d at 304-05 (Wynn, J., concurring) (“The plain meaning of the phrase ‘the conduct of which the prisoner was convicted' refers to the conduct that a jury found beyond a reasonable doubt supported the prisoner's conviction.” (emphasis added)). In light of Petitioner's stipulation at trial, Petitioner cannot meet the requirements of the Jones test to show the conduct of which he was convicted is no longer criminal. See Rainner v. Warden FCI Bennettsville, No. CV 6:19-2207-JMC-KFM, 2020 WL 5732362, at *3 (D.S.C. July 17, 2020) (finding the second prong in Jones was not met because the petitioner stipulated as to his felony status, and “that stipulation relieved the government of the obligation of proving the first element of his § 922(g)(1) conviction (the status element)”), report and recommendation adopted, No. 6:19-CV-02207-JMC, 2020 WL 5702103 (D.S.C. Sept. 24, 2020), appeal docketed, No. 20-7511 (4th Cir. Oct. 14, 2020); Moss v. Dobbs, No. 8:19-CV-02280-JMC-JDA, 2019 WL 7284989, at *6-7 (D.S.C. Sept. 23, 2019) (finding a petitioner failed to satisfy the second prong under Jones where the petitioner entered a stipulation at trial that he was a felon, which satisfied the government's burden of proof as to the knowledge-of-status element), report and recommendation adopted, No. 8:19-CV-02280-JMC, 2019 WL 5616884 (D.S.C. Oct. 31, 2019).
Based on the foregoing, Petitioner has failed to satisfy his burden of demonstrating that he meets the savings clause test as contemplated in Jones. Thus, his § 2241 petition should be dismissed for lack of jurisdiction. See Rice, 617 F.3d at 807.
Notwithstanding that Petitioner cannot satisfy the savings clause test in Jones, Petitioner cannot show that the failure to give him notice as to the knowledge-of-status element prejudiced him or otherwise had a substantial or injurious effect on the outcome of his case. See United States v. Norman, No. CR 7:17-527-HMH, 2020 WL 4043648, at *8 (D.S.C. July 17, 2020) (finding a Rehaif error did not affect the petitioner's substantial rights or affect the outcome of the proceedings in a § 2255 petition because, inter alia, the petitioner had been sentenced to more than one year in prison on three separate occasions and the petitioner stipulated to the existence of his prior felonies); see also Walker v. Rivera, 820 F.Supp.2d 709, 715 (D.S.C. 2011) (applying the “substantial and injurious effect” standard on a § 2241 petition that satisfied the § 2255 savings clause exception), aff'd, 468 Fed.Appx. 341 (4th Cir. 2012). As noted above, and argued by Respondent (ECF No. 23-1 at 3-4), Petitioner had two felony convictions before the firearm possession at issue in his 2008 conviction. ECF No. 28 at 8, 12-13. Therefore, he cannot credibly argue that he was unaware that he had been convicted of at least one crime punishable by imprisonment for a term exceeding one year when he possessed the firearm in 2008. See generally Greer v. United States, 141 S.Ct. 2090, 2095, 2021 WL 2405146, at **2 (U.S. June 14, 2021) (“As many courts have recognized and as common sense suggests, individuals who are convicted felons ordinarily know that they are convicted felons.”). Accordingly, to the extent the Court has jurisdiction to consider Petitioner's Rehaif claim, the claim fails on the merits.
IV. RECOMMENDATION
For the foregoing reasons, this Court lacks jurisdiction to entertain the Petition. Accordingly, it is recommended that the § 2241 petition be dismissed without prejudice. See Fed.R.Civ.P. 12(h)(3) (“[I]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”); Platts v. O'Brien, 691 Fed.Appx. 774 (4th Cir. 2017) (dismissing § 2241 petition without prejudice “because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits” (citation omitted)). Consequently, Respondent's Motion for Summary Judgment should be terminated as moot. See Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995) (stating that dismissal, rather than summary judgment, is appropriate when the court concludes it lacks jurisdiction over an action).
As noted above, the undersigned agrees with Respondent that the Rehaif claim fails on the merits. Thus, in the alternative, if the District Court Judge finds that subject-matter jurisdiction exists in his independent review, the undersigned recommends granting the Motion for Summary Judgment.
The parties are directed to the next page for their rights to file objections to this 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
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).