Opinion
Case No. 2:18-cv-00613-RBH-MGB
10-04-2018
Samuel Robert Queen, # 29596-037, Petitioner, v. Bonita S. Mosely, Respondent.
REPORT AND RECOMMENDATION
Petitioner, proceeding pro se, has filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241, challenging his 360-months imprisonment, which was imposed in 1995 in the District of Maryland. (Dkt. No. 1 at 2.) Respondent filed a Motion to Dismiss (Dkt. No. 18), and Petitioner responded on August 27, 2018. (Dkt. No. 22.) Pursuant to the provisions of 28 U.S.C. §636(b)(1)(B), and Local Rule 73.02(B)(2) (D.S.C.), the assigned United States Magistrate Judge is authorized to review the petition and submit findings and recommendations to the United States District Judge. The undersigned recommends that Respondent's Motion to Dismiss be granted.
BACKGROUND
In 1993, a federal grand jury in the District of Maryland indicted Petitioner for one count of conspiracy to possess heroin with the intent to distribute. See United States v. Queen, 1:93-cr-369-CCB (D.Md.); United States v. Queen, 95 F.3d 43, 1996 WL 494066, at *1 (4th Cir. Aug. 30, 1996) Petitioner ultimately plead guilty to the crime charged in the indictment. Queen, 1996 WL 494066, at *1. On direct appeal, the Fourth Circuit reviewed "the district court's decision to deny [Petitioner's] motion to withdraw the guilty plea he entered, as well as the court's refusal to depart downward in sentencing." Id. The Fourth Circuit affirmed the conviction and sentence. Id.
Subsequently, Petitioner filed a § 2255 motion, which he later amended. United States v. Queen, 1:93-cr-369-CCB, Dkt. Nos. 165; 173. The district court denied the motion, and the Fourth Circuit dismissed the appeal. Id. Dkt. Nos. 214; 225. Petitioner filed a second § 2255 motion in 1999, which was dismissed on the basis that it was successive. Queen v. Sheehy, et. al., 1:99-cv-02621-WEB, Dkt. Nos. 1; 3.) On April 19, 2000, the Fourth Circuit denied a certificate of appealability and dismissed the appeal. Queen v. Sheehy, 211 F.3d 1265 (4th Cir. April 19, 2000). Petitioner filed a third § 2255 motion in 2006, which was dismissed on the basis that it was successive. United States v. Queen, 1:93-cr-369-CCB, Dkt. Nos. 254; 255; 256. On October 23, 2006, the Fourth Circuit denied a certificate of appealability and dismissed the appeal. United States v. Queen, 203 F. App'x 469 (4th Cir. Oct. 23, 2006). Petitioner filed a fourth § 2255 motion in 2008, which was also dismissed. United States v. Queen, 1:93-cr-369-CCB, Dkt. Nos. 266; 267. It does not appear that Petitioner appealed the district court's decision. On October 31, 2008, Petitioner filed a "Motion for Amended Judgment to Correct Excessive Sentence of Imprisonment" in which he claimed that his 360-months sentence was excessive and illegal under the Constitution and statutes. Id. Dkt. No. 277. The district court denied the motion. Id. Dkt. No. 278.
On March 5, 2018, Petitioner filed the instant § 2241 petition. (Dkt. No. 1.) On June 28, 2018, Petitioner filed a motion for leave to file additional briefing in support of his petition (Dkt. No. 13), which the Court granted (Dkt. No. 16). On August 2, 2018, Respondent filed a Motion to Dismiss. (Dkt. No. 18.) By order of this Court filed on August 2, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Petitioner was advised of the possible consequences if he failed to respond adequately to the motion for summary judgment. (Dkt. No. 19.) On August 27, 2018, Petitioner filed his response in opposition to Respondent's motion. (Dkt. No. 22.)
STANDARD OF REVIEW
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 Rules Governing § 2254 Cases, 28 U.S.C. § 2254; the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214; 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) (en banc); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
The Rules Governing Section 2254 Cases in the United States District Courts may be applied in habeas actions filed pursuant to 28 U.S.C. § 2241. Rule 1(b) of the Rules Governing Section 2254 Cases in the United States District Courts states a "district court may apply any or all of these rules to a habeas corpus petition not covered by Rule 1(a)."
Pro se pleadings are given liberal construction and are held to a less stringent standard than formal pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); De'Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). However, "[t]he 'special judicial solicitude' with which a district court should view . . . pro se complaints does not transform the court into an advocate." United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012), cert. denied, 133 S.Ct. 2401 (2013). "Only those questions which are squarely presented to a court may properly be addressed." Weller v. Dept. of Soc. Servs. for City of Baltimore, 901 F.2d 387, 391 (4th Cir. 1990). Giving "liberal construction" does not mean that the Court can ignore a prisoner's clear failure to allege facts that set forth a cognizable claim. "Principles requiring generous construction of pro se complaints . . . [do] not require . . . courts to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985), cert. denied, 475 U.S. 1088 (1986).
DISCUSSION
In the instant action, Petitioner makes two claims attacking his sentence of 360-months imprisonment. First, Petitioner claims that he is being held unlawfully because "[t]he indictment in which [he] plead carried a maximum penalty of 20 years. . . . [and he has now served] 25 years imprisonment." (Dkt. No. 1 at 7.) In his supporting brief, Petitioner explains that his indictment for one count of conspiracy to possess heroin with intent to distribute did not mention any "specific drug quantity." (Dkt. No. 14 at 6.) Petitioner states that 21 U.S.C. § 841(a) defines the crime that was the object of the conspiracy to which he pled: namely, making it unlawful for any person, knowingly or intentionally, to manufacture, distribute, or dispense controlled or counterfeit substances. (Id. at 5.) The penalties for violating § 841(a) are set forth in 21 U.S.C. § 841(b), which lists terms of imprisonment in § 841(b)(1)(A)-(D). Under § 841(b)(1)(C), regardless of the quantity of schedule I or II drug, a defendant convicted of a violation of § 841(a) is eligible for a term of imprisonment ranging from zero to twenty years. In the other penalty sections of § 841(b)(1), however, the term of imprisonment is linked to quantity of drugs. For example, in § 841(b)(1)(A), based on a finding of a particular amount of drugs, the term of imprisonment ranges from ten years to life.
According to Petitioner, at the time he entered his guilty plea, "settled law permitted drug quantity as a sentencing factor" rather than an element of the crime." (Dkt. No. 14 at 6-7.) Given this law, Petitioner contends that "it was not unusual for counsel to have a defendant stipulate to a specific amount to cut off the possibility of a life sentence." (Id. at 6.) Apparently, that is what occurred in this instance.
Petitioner states that subsequent to his direct appeal and first § 2255 motion, the substantive law of this circuit changed such that drug quantity would have to be considered an element of the crime, "stated within the indictment." (Id. at 7-8.) Specifically, in Apprendi v. New Jersey, the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. 466, 490 (2000). Petitioner contends that his sentence of 360 months exceeded the statutory maximum for his indicted crime, and that, pursuant to Apprendi, he should not have been sentenced beyond the statutory maximum without submission of his case to a jury, and a conviction for a specific drug quantity found beyond a reasonable doubt.
Petitioner also claims that the "[s]entencing court improperly sentenced [him] under the 1993 sentencing guidelines [when] it was supposed to have used the guideline[s] in effect at the time of sentencing." (Dkt. No. 1 at 7.) Petitioner argues that the use of the 1993 version of the sentencing guidelines resulted "in a sentence that went beyond the statutory maximum of the indictment." (Id.)
"It 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 used to challenge the manner in which a sentence is executed. Vial, 115 F.3d at 1194 n.5.
Although Petitioner has labeled his present petition as one brought pursuant to § 2241, review of the petition reflects that Petitioner is attempting to bring an unauthorized successive § 2255 motion. As already discussed, Petitioner has previously brought a § 2255 motion that was denied on the merits, and he has filed several more § 2255 motions that were dismissed as successive. Petitioner does not indicate, and the record does not reflect, that he has sought permission from the Fourth Circuit Court of Appeals to file a successive § 2255 motion here. Petitioner appears to be characterizing his present petition as a § 2241 petition in an effort to circumvent the requirement of obtaining permission to file a successive § 2255 motion.
A prisoner cannot challenge his conviction and sentence under § 2241 unless he can satisfy the narrow exception 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); see Prousalis v. Moore, 751 F.3d 272, 275 (4th Cir. 2014) (observing that a prisoner "may file a habeas petition under § 2241 only if the collateral relief typically available under § 2255 'is inadequate or ineffective to test the legality of his detention' "), cert. denied, 135 S.Ct. 990 (2015). 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; U.S. v. Wheeler, 886 F.3d 415, 423 (4th Cir. 2018) ("[W]e hold that the savings clause is a jurisdictional provision.").
Accordingly, as applied here, Petitioner's § 2241 action is barred unless he can demonstrate that the relief available to him under § 2255 is inadequate or ineffective. Petitioner was unsuccessful in seeking relief under § 2255 in his petition in his sentencing court. 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).
Recently, the Fourth Circuit established a test for when a petitioner may meet the savings clause under § 2255 when he contests his sentence, not only his conviction:
§ 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.
Petitioner asserts that he satisfies the Wheeler savings clause test given the United States Supreme Court's decision in Apprendi v. New Jersey, which was issued after Petitioner's direct appeal and first § 2255 motion. (Dkt. Nos. 14 at 2-10; 22 at 5-9.) Specifically, Petitioner argues that under Apprendi, he would not have been sentenced beyond the statutory maximum without submission of his case to a jury, and a conviction for a specific drug quantity found beyond a reasonable doubt. However, the Fourth Circuit Court of Appeals has expressly held that Apprendi does not apply retroactively on collateral review. See San-Miguel v. Dove, 291 F.3d 257, 260 (4th Cir. 2002). In San-Miguel v. Dove, the Fourth Circuit Court of Appeals affirmed the summary dismissal of a § 2241 action in which the petitioners argued that their sentences for drug trafficking were illegal under Apprendi. 291 F.3d at 260. The court expressly held that "Apprendi does not apply retroactively on collateral review" and found that the Apprendi claims were therefore barred where they were raised for the first time in the petitioners' respective § 2241 petitions. Id.; see also Barmore v. United States, Case No. 2:09-cv-799-PMD-RSC, 2009 WL 1936783, at *2 (D.S.C. July 6, 2009) ("[T]he Fourth Circuit has held that Apprendi does not apply to cases seeking collateral review of cases which were previously decided.").
In light of this Fourth Circuit precedent, Petitioner cannot satisfy the second and fourth prongs of the Wheeler savings clause test. Specifically, Petitioner has not established a change in settled substantive law that has been deemed to apply retroactively. See Wheeler, 886 F.3d at 429. Further, without showing a retroactive change in the substantive settled law, Petitioner cannot show that his sentence now presents a sufficiently grave error such that it is fundamentally defective. Id. Therefore, because Petitioner cannot establish that his claims are within the scope of the savings clause, the undersigned recommends this matter be dismissed for lack of jurisdiction. See Harden v. Antonelli, Case No. 6:18-cv-01057-DCC-KFM, 2018 WL 3321569, at *3 (D.S.C. May 24, 2018), adopted by, 2018 WL 3303272 (D.S.C. July 5, 2018) (dismissing § 2241 petition where the petitioner failed to plausibly allege under Wheeler that any supposed change in substantive law "was deemed to apply retroactively on collateral review"); see also Wheeler, 886 F.3d at 423 ("[W]e hold that the savings clause is a jurisdictional provision.").
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that Defendant's Motion to Dismiss (Dkt. No. 18) be GRANTED, and that the § 2241 petition be dismissed without prejudice.
See Platts v. O'Brien, 691 Fed. App'x. 774 (4th Cir. June 22, 2017) (citing S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013)) ("A dismissal for . . . [a] defect in subject matter jurisdiction[ ] must be one without prejudice, because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits.").
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE October 4, 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).