Opinion
C/A No.: 1:19-1125-HMH-SVH
05-08-2019
Tobian Ponder, Petitioner, v. United States of America, Warden Bryan Antonnelli, Respondents.
REPORT AND RECOMMENDATION
Tobian Ponder ("Petitioner"), proceeding pro se, is an inmate at the Federal Correctional Institution Williamsburg in Salters, South Carolina, in the custody of the Bureau of Prisons. He filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. 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 judge. For the following reasons, the undersigned recommends the district judge dismiss the petition in this case without requiring the respondents to file an answer. I. Factual and Procedural Background
On May 18, 1998, a jury found Petitioner guilty of one count of conspiracy to commit Hobbs Act robbery (Count 1); four counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (Counts 2, 4, 6, and 8); four counts of using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Counts 3, 5, 7, and 9); one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) (Count 10); and one count of possession of a stolen firearm, in violation of 18 U.S.C. § 922(j) (Count 11). United States v. Ponder, Case No. 1:97-cr-00162-DMM (S.D. Fla. 1998). On August 26, 1998, the Southern District of Florida ("Sentencing Court") sentenced Petitioner to 1015 months' imprisonment, consisting of: (1) 235 months for the Hobbs Act charges (Counts 1, 2, 4, 6, and 8), to run concurrently; (2) 120 months for the § 922 charges (Counts 10 and 11), to run concurrently with each other and with the Hobbs Act sentence; (3) 60 months on Count 3, the first § 924(c) count; and (4) 240 months on the remaining § 924(c) counts (Counts 5, 7, and 9), to run consecutively to each other and to the sentences imposed on the other counts. Id., ECF No. 88.
The court takes judicial notice of Petitioner's prior cases. See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ("The most frequent use of judicial notice of ascertainable facts is in noticing the content of court records.") (citation omitted).
On appeal, the Eleventh Circuit Court of Appeals affirmed Petitioner's convictions and sentences. Id., ECF No. 111; United States v. Brown, et. al., No. 98-5251 (11th Cir. Jan. 7, 2000). On November 27, 2000, Petitioner filed a motion to vacate pursuant to 28 U.S.C. § 2255. Id., ECF No. 133. The Sentencing Court denied Petitioner's motion on September 13, 2001, id., ECF No. 137, and Petitioner did not appeal.
On May 25, 2016, Petitioner sought permission from the Eleventh Circuit to file a second § 2255 motion based on Johnson v. United States, 135 S. Ct. 2551 (2015). See id., ECF No. 166 at 3. On June 24, 2016, before a decision from the Eleventh Circuit, Petitioner filed his second § 2255 motion in the Sentencing Court. Id. Later that day, the Eleventh Circuit denied Petitioner's application for leave to file a second § 2255 motion. See Order, Case No. 16-13022 (11th Cir. June 24, 2016). On July 7, 2016, the Sentencing Court dismissed Petitioner's § 2255 motion. See Order, Ponder v. United States, Case No. 1:16-cv-22582-DMM (S.D. Fla. July 7, 2016), ECF No. 7.
Petitioner now challenges his sentence, alleging conspiracy to commit Hobbs Act robbery is no longer a "crime of violence" after the Fourth Circuit's decision in United States v. Simms, 914 F.3d 229 (4th Cir. 2019), and, therefore, he should be resentenced without consideration of any of the § 924(c) counts. [ECF No. 1 at 6-8]. II. Discussion
A. Standard of Review
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"), Pub. L. No. 104-132, 110 Stat. 1214, 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). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
B. Analysis
"[I]t is well established that 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)). In contrast, a petition filed under § 2241 is typically used to challenge the manner in which a sentence is executed. See In re Vial, 115 F.3d at 1194 n.5. A petitioner cannot challenge his federal conviction and sentence under § 2241 unless he can satisfy 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); see also Rice, 617 F.3d at 807 (finding court lack jurisdiction over § 2241 petition outside savings clause).
In the Fourth Circuit, § 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.U.S. v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018).
The undersigned finds the court lacks jurisdiction to consider Petitioner's § 2241 petition, as he cannot show that § 2255 is inadequate to test the legality of his sentence. Relying on United States v. Simms, 914 F.3d 229 (4th Cir. 2019), Petitioner asserts his enhanced sentence is unlawful because conspiracy to commit Hobbs Act robbery is not a crime of violence. [ECF No. 1 at 11-14]. Petitioner also bases his argument on Johnson and Sessions v. Dimaya, 138 S. Ct. 1204 (2018)—United States Supreme Court decisions finding the residual clause definitions of "crime of violence" in the Armed Career Criminal Act and the Immigration and Nationality Act impermissibly vague. Id.
However, Simms is a Fourth Circuit Court of Appeals decision, and the substantive law change that causes Petitioner's sentence to be unlawful must arise from the United States Supreme Court or the circuit in which Petitioner was convicted—here, the Eleventh Circuit. See Van Hoorelbeke v. United States, No. CA 0-08-3869-CMC-PJG, 2010 WL 146289, at *4 (D.S.C. Jan. 8, 2010) (citing Chaney v. O'Brien, 2007 WL 1189641 (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")); 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).
In the Eleventh Circuit, conspiracy to commit Hobbs Act robbery is still considered a crime of violence. See McKnight v. United States, 753 F. App'x 873, 874 (11th Cir. 2019) (holding conspiracy to commit Hobbs Act robbery is crime of violence under the residual clause) (per curium). Further, the Eleventh Circuit has specifically rejected Petitioner's arguments based on Johnson and Dimaya. See In re Garrett, 908 F.3d 686, 689 (11th Cir. 2018) ("[Under Ovalles v. United States, 905 F.3d 1231 (11th Cir. 2018) (en banc)], neither Johnson nor Dimaya supplies any 'rule of constitutional law' . . . that can support a vagueness-based challenge to the residual clause of 924(c)."); Ovalles, 905 F.3d at 1252 (holding Supreme Court's decisions in Johnson and Dimaya did not invalidate § 924(c)'s residual clause). Accordingly, Petitioner is unable to meet the § 2255 savings clause requirements and this court lacks jurisdiction to consider the petition.
III. Conclusion and Recommendation
For these reasons, the undersigned recommends the court dismiss the petition in the above-captioned case without prejudice and without requiring the respondent to file a return.
IT IS SO RECOMMENDED. May 8, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
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
901 Richland Street
Columbia, South Carolina 29201
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).