Opinion
C. A. 6:21-cv-02013-JMC-KFM
07-23-2021
Samuel Eddie Pheasant, Petitioner, v. Warden Antonelli, Respondent.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD, UNITED STATES MAGISTRATE JUDGE
The petitioner, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2241 for habeas relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court. For the reasons set forth below, it is recommended that the petitioner's § 2241 petition be dismissed without prejudice and without requiring the respondent to file an answer or return.
BACKGROUND
Petitioner's Conviction and Sentence
On December 5, 2006, the petitioner was found guilty by a jury of first degree murder and the use and carry of a firearm in relation to the murder. See United States v. Pheasant, C/A No. 2:06-cr-00025-MR, at doc. 25 (W.D. N.C. ). On November 5, 2007, the petitioner was sentenced to life imprisonment, to be followed by one hundred and twenty months' imprisonment and then five years supervised release. Id. at doc. 27. The petitioner appealed, and the Fourth Circuit affirmed his convictions and sentence. United States v. Pheasant, 320 Fed.Appx. 160 (4th Cir. 2009).
The court takes judicial notice of the records in the petitioner's criminal case in the Western District of North Carolina at case number 2:06-cr-00025-MR-DLH-1 as well as collateral attacks on his sentence filed in the sentencing court and in this court. See Phillips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (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 § 2255 Motion
The petitioner filed his first § 2255 motion on August 21, 2009. Pheasant v. United States of Am., C/A No. 2:09-cv-00046-MR, at doc. 1 (W.D. N.C. ). In the motion, the petitioner argued ineffective assistance of counsel (“IAC”) for failing to tell the petitioner he had the right to testify at trial and for preventing the petitioner from testifying, for failing to seek an appropriate plea agreement as instructed, for failing to allow the petitioner to submit a defense, failing to challenge the jury pool selection, and failing to investigate and call witnesses. Id. at doc. 1 pp. 4-10. The court denied the petitioner's motion on September 6, 2012. Id. at doc. 64. The petitioner appealed, and the Fourth Circuit dismissed his appeal. United States of Am. v. Pheasant, 518 Fed.Appx. 226 (4th Cir. 2013).
Petitioner's Prior § 2241 Action
The petitioner then filed a petition pursuant to 28 U.S.C. § 2241 in this court on June 4, 2018. Pheasant v. Warden Antonelli, C/A No. 6:18-cv-01516-JMC (D.S.C.). In the petition, the petition asserted that he was actually innocent of the elements of first degree murder, actually innocent of the sentence enhancement used, and argued IAC. Id. at doc. 1. On June 25, 2018, the court issued a Report and Recommendation recommending that the petition be dismissed because the petitioner could not meet the savings clause test to proceed under § 2241. Id. at doc. 10. The Report and Recommendation was adopted on November 19, 2020, and the case dismissed. Pheasant v. Antonelli, C/A No. 6:18-cv-01516-JMC, 2020 WL 6799018 (D.S.C. Nov. 19, 2020). The petitioner appealed, and the dismissal was affirmed by the Fourth Circuit Court of Appeals. Pheasant v. Antonelli, 848 Fed.Appx. 137 (4th Cir. 2021).
Petitioner's Present Action
In the instant matter, it appears that the petitioner again seeks to use the Jones and Wheeler savings clause tests in order to collaterally attack his conviction and sentence (doc. 1). The petitioner's first ground for relief is that he is actually innocent of the elements which constitute first degree murder (id. at 6-7). His second ground for relief is that he is innocent of the § 924(c) sentence enhancement (id. at 7). His third ground for relief is IAC (id.). For relief, the petitioner seeks to have his convictions vacated and receive a new trial or a plea agreement to manslaughter with a sentence of time-served (id. at 8).
STANDARD OF REVIEW
The undersigned has reviewed the petition pursuant to the Rules Governing Section 2254 Cases in the United States District Courts; the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214; and other habeas corpus statutes. As a pro se litigant, the petitioner's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The mandated liberal construction means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. However, 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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
The petitioner filed this action pursuant to 28 U.S.C. § 2241 (doc. 1). Because the petitioner is incarcerated in the District of South Carolina and he names the warden of FCI Williamsburg as the respondent, his § 2241 petition is properly filed in this Court. Liberally construing the petitioner's allegations, the petitioner seeks to utilize the § 2255 savings clause test in order to attack the validity of his federal conviction and sentence, arguing that he is actually innocent of first degree murder and the sentence enhancement as well as IAC (doc. 1). As set forth in more detail below, the petition should be dismissed without prejudice and without requiring the respondent to file an answer or return.
As an initial matter, this action represents the petitioner's second § 2241 petition arguing these grounds for relief. See Pheasant v. Warden Antonelli, C/A No. 6:18-cv-01516-JMC (D.S.C.). Although the prior petition was dismissed without prejudice, the dismissal noted that these grounds for relief were not properly brought before this court pursuant to § 2241. Pheasant v. Warden Antonelli, C/A No. 6:18-cv-01516-JMC, 2020 WL 6799018 (D.S.C. Nov. 19, 2020), appeal dismissed 848 Fed.Appx. 137 (4th Cir. 2021). As set forth above, the instant matter is repetitive of the petitioner's earlier petition; thus, for the reasons set forth by the court previously, this matter is subject to summary dismissal.
Nevertheless, as outlined below, the petitioner's petition is also subject to dismissal because he cannot meet the savings clause test. As affirmed in Wheeler, the § 2255 savings clause test is jurisdictional. United States v. Wheeler, 886 F.3d 415, 426 (4th Cir. 2018). The court may sua sponte raise subject matter jurisdiction, and the Court of Appeals has held that if a petitioner cannot meet the savings clause requirements, then the § 2241 petition “must be dismissed for lack of jurisdiction.” Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010). Because the § 2255 savings clause is a jurisdictional requirement, an analysis of whether the petitioner meets the savings clause test is appropriate for initial review under § 1915.
Unlike a § 2255 motion, which is filed in the trial and sentencing court, a § 2241 petition is filed in the district where the petitioner is incarcerated. See 28 U.S.C. § 2241(a); In re: Jones, 226 F.3d 328, 332 (4th Cir. 2000). “Generally, a § 2241 petition ‘attacks the execution of a sentence rather than its validity,' whereas a § 2255 motion ‘attacks the legality of detention.'” Rice v. Lamanna, 451 F.Supp.2d 755, 758 (D.S.C. 2006) (quoting Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)); see United States v. Miller, 871 F.2d 488, 489-90 (4th Cir. 1989) (distinguishing between attacks to the “computation and execution of the sentence rather than the sentence itself”). Thus, “defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255.” Rice v. Rivera, 617 F.3d at 807 (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 the prisoner's conviction or sentence when § 2255 is “inadequate or ineffective to test the legality of . . . detention.” 20 U.S.C. § 2255(e); Jones, 226 F.3d at 333. Accordingly, the petitioner cannot challenge his federal conviction and sentence under § 2241, unless 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, as applied here, the petitioner's § 2241 action is barred unless he can demonstrate that the relief available to him under § 2255 is inadequate or ineffective. The petitioner alleges that relief under § 2255 is not available to him because he has been unsuccessful in the sentencing court, does not have newly discovered evidence, and there has not been an intervening change in the law (doc. 1 at 5). However, “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.” See In re Vial, 115 F.3d at 1194 n.5 (citations omitted).
To trigger the “savings clause” of § 2255(e) and proceed under § 2241, the petitioner must meet the savings clause test as contemplated in United States v. Wheeler, 886 F.3d 415 (challenges to sentences) or In re Jones, 226 F.3d 328 (challenges to convictions).
In In re Jones, the Court of Appeals held that in order to meet the savings clause under § 2255 when contesting the underlying validity of a federal criminal conviction, and seek relief under § 2241, 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 gate-keeping provisions of § 2255 because the new rule is not one of constitutional law.In re Jones, 226 F.3d 333-34. Here, the petitioner's allegations do not satisfy the In re Jones requirements because there are no allegations that the conduct for which the petitioner was convicted is no longer criminal due to a change in the law. First, the petitioner has not asserted a change in the law subsequent to his conviction and first § 2255 motion in arguing that he is actually innocent of the elements of first degree murder and the sentencing enhancement, as well as IAC (doc. 1 at 6-7). Moreover, to the extent the petitioner argues “actual innocence, ” his claims still fail. Cognizable claims of “actual innocence” are rare, and must be based on “factual innocence not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998); see also United States v. Pettiford, 612 F.3d 270, 282 (4th Cir. 2010) (noting that to succeed on actual innocence grounds a petitioner must show that he “did not commit the crime of which he was convicted; this standard is not satisfied by a showing that a petitioner is legally, but not factually, innocent”). By making the argument of “actual innocence, ” the petitioner seeks to obtain review of his claims by showing that his case falls into the “narrow class of cases implicating a fundamental miscarriage of justice.” Cornell v. Nix, 119 F.3d 1329, 1333 (8th Cir. 1997). In the present matter, the petitioner's actual innocence claim is facially inadequate because he has not “supported] his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Instead, the petitioner argues that the evidence presented at trial did not support a guilty verdict (see docs. 1-1; 1-2). However, the petitioner concedes that he has not provided new evidence to support his actual innocence claim - as part of his assertion regarding the unavailability of relief under § 2256 (doc. 1 at 5). In light of the foregoing, the petitioner has not satisfied the requirements for a valid innocence claim relating to his convictions. Accordingly, the petitioner cannot use “actual innocence” to bypass the gatekeeping requirements of § 2255 and use the present § 2241 petition to seek § 2255 relief via that statute's savings clause.
Secondly, to the extent the petitioner's § 2241 could be liberally construed as a challenge to the sentence he received for his convictions, the petition does not meet the Wheeler test, which sets forth when a petitioner may meet the savings clause under § 2255 to contest his sentence. The Court of Appeals noted that:
[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.United States v. Wheeler, 886 F.3d at 429 (citations omitted).
The petitioner, in the present matter, argues that his sentence is unconstitutional and should be vacated and set aside because he is actually innocent of first degree murder and the sentencing enhancement (doc. 1 at 6-7). The petitioner, however, cannot meet the second Wheeler factor with respect to any of his grounds for relief: that “subsequent to [his] direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review.” Wheeler, 886 F.3d at 429.
The petitioner filed a direct appeal in 2009. The petitioner's first § 2255 motion was filed on August 21, 2009, and denied on September 6, 2012. Pheasant v. United States of Am., C/A No. 2:09-cv-00046-MR, at doc. 24 (W.D. N.C. ). However, the petitioner's arguments regarding actual innocence and IAC do not assert a change in the law made retroactive on collateral review. Accordingly, the petitioner has failed to satisfy the elements of the Court of Appeal's Wheeler test to invoke the savings clause of § 2255 and challenge his sentence. As such, the petitioner's § 2241 petition should be dismissed because the savings clause contained in § 2255 does not permit him to bring this § 2241 action.
RECOMMENDATION
Accordingly, it is recommended that the petitioner's § 2241 petition be dismissed without requiring the respondent to file a return. The petitioner's attention is directed to the important notice on the next page.
The petitioner cannot cure the deficiencies noted herein relative to the § 2255 savings clause, however, dismissal without prejudice is recommended because the Fourth Circuit Court of Appeals has held that dismissals for lack of subject-matter jurisdiction must be without prejudice. S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013).
IT IS SO RECOMMENDED.
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).