Opinion
C. A. 0:22-218-HMH-PJG
02-22-2022
Reginald Earl Rice, Petitioner, v. Nanette Barnes, Respondent.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE.
Petitioner Reginald Earl Rice, a self-represented federal prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.). Having reviewed the Petition in accordance with applicable law, the court concludes that it should be summarily dismissed.
I. Factual and Procedural Background
In 2008, Petitioner was convicted in this court of bank robbery by force or violence, 18 U.S.C. § 2113(a), and sentenced to life imprisonment pursuant to the three strikes enhancement of 18 U.S.C. § 3559(a). Cr. No. 7:07-1475-HMH. The United States Court of Appeals for the Fourth Circuit affirmed his conviction and sentence, and this court denied Petitioner's multiple motions to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255. In 2021, the court granted Petitioner's compassionate release motion for a sentence reduction, finding that the bank robbery offense did not qualify as a strike, and reduced Petitioner's sentence to 360 months' imprisonment. However, Petitioner indicates he is still classified as a career offender under the United States Sentencing Guidelines, U.S.S.G. § 4B1.1.
Petitioner now brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 arguing that bank robbery by force of violence does not qualify as a crime of violence under the Sentencing Guidelines. Petitioner argues that in light of case law from this circuit holding that bank robbery by force or violence and Hobbs Act robbery are crimes of violence under the force clause of 18 U.S.C. § 924(c)(3) (prohibiting the use of a firearm in furtherance of a crime of violence), and case law holding that Hobbs Act robbery is not a crime of violence under the force clause of the Sentencing Guidelines, bank robbery by force or violence also does not qualify as a crime of violence under the Sentencing Guidelines. Therefore, Petitioner argues, he does not qualify as a career offender under the Sentencing Guidelines and he asks to be resentenced.
II. Discussion
A. 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); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
This court is required to liberally construe pro se pleadings, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, 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 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
B. Analysis
A petitioner cannot challenge his federal conviction and sentence through § 2241 unless he can show under the “savings clause” of § 2255(e) that a § 2255 motion is “inadequate or ineffective to test the legality of his detention.” See 28 U.S.C. § 2255(e); see also Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (providing that if a federal prisoner brings a § 2241 petition that does not fall within the scope of the savings clause, the district court must dismiss the unauthorized habeas petition for lack of jurisdiction). The Fourth Circuit has held that a petitioner must establish the following criteria to demonstrate that a § 2255 motion is inadequate or ineffective to test the legality of a prisoner's sentence:
(1) [A]t 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).
Here, Petitioner's case is subject to summary dismissal because he cannot meet the Wheeler elements to show that the court has jurisdiction over this Petition. Specifically, Petitioner does not rely on a change in settled, substantive law that applies retroactively on collateral review.
Though Petitioner relies on new Fourth Circuit case law to support his argument, see United States v. Caldwell, 7 F.4th 191, 213 (4th Cir. 2021); United States v. Green, 996 F.3d 176, 179 (4th Cir. 2021); United States v. McNeal, 818 F.3d 141, 157 (4th Cir. 2016); none of these cases addresses the direct issue Petitioner presents here-whether bank robbery by force or violence is a crime of violence under the force clause of the Sentencing Guidelines. Absent new controlling, retroactively applicable law that establishes the validity of Petitioner's argument that bank robbery by force or violence is not a crime of violence under the Sentencing Guidelines, Petitioner cannot meet the test in Wheeler. Consequently, the court lacks subject matter jurisdiction over the Petition. See Wheeler, 886 F.3d at 426 (holding that the savings clause requirements are jurisdictional and may not be waived).
III. Conclusion
Accordingly, the court recommends that the Petition in the above-captioned case be dismissed without prejudice and without requiring the respondent to file a return.
The parties' attention is directed to the important notice on the next page.
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).