Opinion
C/A 9:21-0004-JD-MHC
02-04-2021
Jerrell Antonio Roberts, Petitioner, v. Bryan Dobbs, Respondent.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge.
The pro se Petitioner, Jerrell Antonio Roberts, a federal inmate at FCI-Williamsburg, brings this action as an application for writ of habeas corpus (Petition) pursuant to 28 U.S.C. § 2241. 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 procedural provisions of the Rules Governing Section 2254 Proceedings in the United States District Court, 28 U.S.C. § 2254; the AntiTerrorism and Effective Death Penalty Act (AEDPA) of 1996; 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); and 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) of Rules Governing Section 2254 Cases in the United States District Courts (the district court may apply any or all of these rules to a habeas corpus petition not filed pursuant to 28 U.S.C. § 2254).
Pro se petitions are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). However, even when considered under this less stringent standard, for the reasons set forth below, the Petition submitted in this case is subject to summary dismissal. The requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently 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”).
A. BACKGROUND
A three count indictment was returned against Petitioner, charging him with (1) possession of a firearm by a convicted felon, (2) possession of a controlled substance (Xanax) with intent to distribute, and (3) possession of a firearm in furtherance of a drug trafficking crime. Petitioner entered a written plea agreement in the United States District Court for the Southern District of Georgia, in which he pleaded guilty to Count 1 (possession of a firearm by a convicted felon) and the remaining counts were dismissed. In October 2017, Petitioner was sentenced to 87 months' imprisonment followed by 36 months' supervised release. See Petition, ECF No. 1 at 1; see also United States v. Roberts, No. 4:17-cr-00068-WTM-CLR-1 (S.D. Ga.). Petitioner filed a direct appeal and the Eleventh Circuit Court of Appeals affirmed. See United States v. Roberts, 747 Fed.Appx. 786 (11th Cir. 2018). Petitioner did not file a motion to vacate, correct, or set aside his sentence pursuant to 28 U.S.C. § 2255. See ECF No. 1 at 4.
This Court may take judicial notice of factual information located in postings on government websites. See Tisdale v. South Carolina Highway Patrol, No. 0:09-1009-HFF-PJG, 2009 WL 1491409, *1 n. 1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. Aug. 27, 2009); In re Katrina Canal Breaches Consol. Litig., No. 05-4182, 2008 WL 4185869 at * 2 (E.D. La. Sept. 8, 2008)(noting that courts may take judicial notice of governmental websites including other courts' records).
B. DISCUSSION
In the present Petition, Petitioner contends that this court should “[v]acate Count 1 and dismiss the Indictment with Prejudice.” ECF No. 1 at 7. His asserted grounds for relief are actual innocence as to violating 18 U.S.C. § 922(g)(1), actual innocence because of a constitutionally invalid guilty plea to § 922(g)(1), a constitutionally invalid guilty plea, and the indictment was fatally defective because it failed to properly charge an offense of § 922(g)(1) or 18 U.S.C. § 924(a)(2). Id. at 6-7.
“[I]t is well established that defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255, ” not through a petition filed pursuant to § 2241. Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citing In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997)). Petitioner cannot challenge his federal conviction and sentence under § 2241 unless he can satisfy the § 2255 savings clause, which provides:
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 Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001); Ennis v. Olsen, 238 F.3d 411 (4th Cir. 2000).
Petitioner challenges the legality of his conviction. Section 2255 is inadequate and ineffective to test the legality of a conviction when:
(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 328, 333-34 (4th Cir. 2000). This test set forth in In re Jones (the Jones test) was formulated expressly to provide a remedy for the “fundamental defect presented by a situation in which an individual is incarcerated for conduct that is not criminal but, through no fault of his own, he has no source of redress.” Id. at 333 n. 3.
Here, however, Petitioner cannot meet the § 2255 savings clause pursuant to the Jones test because he has not filed a § 2255 motion in the sentencing court. A prisoner in federal custody must first proceed with a § 2255 motion before attempting to satisfy the “savings clause.” See Hernandez v. Drew, 371 Fed.Appx. 991, 993 (11th Cir. Apr. 7, 2010) (noting that a prisoner may not circumvent the requirements for filing a § 2255 motion merely by filing a § 2241 petition); Dinkins v. Thomas, No. 8:15-490-RMG, 2015 WL 1877434, at *4 (D.S.C. April 23, 2015); Hackett v. Atkinson, No. 9:13-1274-JFA-BM, 2013 WL 3972393, at *3 (D.S.C. July 31, 2013). Moreover, Petitioner cannot meet the second prong of this test because he has not alleged that subsequent to his direct appeal and his first § 2255 motion, the substantive law changed such that the conduct of which he was convicted is deemed not to be criminal.
Petitioner may also be challenging the legality of his sentence. The Fourth Circuit, in United States v. Wheeler, 886 F.3d 415, 423-26 (4th Cir. 2018), held that § 2255 is inadequate or 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 (citing In re Jones, 226 F.3d at 333-34) (the Wheeler test). In this case, however, Petition cannot satisfy the Wheeler test, either. Notably, as set forth above, Petitioner failed to file a § 2255 motion prior to filing this § 2241 petition. Accordingly, he cannot meet the second prong of the Wheeler test. Moreover, Petitioner cannot meet the second prong of this test because he has not alleged that subsequent to his direct appeal and his first § 2255 motion, the settled substantive law changed and was deemed to apply retroactively on collateral review.
Petitioner argues that the remedy under § 2255 is inadequate or ineffective because the one-year filing deadline for filing a § 2255 motion has passed. ECF No. 1 at 4. However, the possibility that a § 2255 motion filed by Petitioner in the sentencing court (the Southern District of Georgia) may be rejected on the merits or ruled to be untimely does not render the § 2255 remedy inadequate or ineffective. See Chavez-Tovar v. Atkinson, C/A No. 1:12-1310-DCN-SVH, 2012 WL 3028024, at *2-3 (D.S.C. June 28, 2012), report and recommendation adopted, 2012 WL 3877674 (D.S.C. Sept. 6, 2012); see also Inre Vial, 115 F.3d at 1194 n. 5 (“the remedy afforded by § 2255 is not rendered inadequate or ineffective merely because an individual has been unable to obtain relief under that provision”). Other courts have required a prisoner in federal custody to first proceed with a § 2255 motion before attempting to satisfy the “savings clause.” See Hernandez v. Drew, 371 Fed.Appx. at 993; Dinkins v. Thomas, 2015 WL 1877434, at *4 (noting that the timing of the petitioner's action “cannot change the Court's duty to consider his petition under the appropriate provision of the law as designated by Congress”); Gibson v. Phelps, No. CV 9:20-981-JMC-BM, 2020 WL 3549211, at *4 (D.S.C. May 22, 2020), report and recommendation adopted, 2020 WL 3548225 (D.S.C. June 30, 2020) (the fact that the petitioner waived his rights to challenge his sentence in a § 2255 motion did not render the remedy afforded by § 2255 inadequate or ineffective), aff'd, 827 Fed.Appx. 357 (4th Cir. 2020).
The one-year limitations period for § 2255 motions runs from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2255(f).
For the reasons discussed above, Petitioner fails to satisfy the savings clause in 28 U.S.C. § 2255(e) pursuant to the tests articulated in Jones and Wheeler. Thus, the Court must dismiss his § 2241 petition for lack of jurisdiction. See Habeck v. United States, 741 Fed.Appx. 953, 954 (4th Cir. 2018) (“The requirements of the § 2255(e) savings clause are jurisdictional.”); see also Rice v. Riviera, 617 F.3d at 807 (“[T]he district court lacked jurisdiction over the [h]abeas [petition] because Rice is unable to satisfy the second prong of the Jones rule.”).
C. RECOMMENDATION
Accordingly, it is RECOMMENDED that the Petition in this action be DISMISSED without prejudice and without requiring Respondent to file a return.
Petitioner's 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
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).