Opinion
C/A 1:21-1969-JFA-SVH
10-26-2021
Andre Rosado, #80495-038, Petitioner, v. AW Wingfield, Acting Warden, Respondent.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
Andre Rosado (“Petitioner”), proceeding pro se and in forma pauperis, filed this action seeking habeas corpus relief pursuant to 28 U.S.C. § 2241. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's motion for summary judgment. [ECF No. 19]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [ECF No. 23]. Petitioner filed a response on October 14, 2021. [ECF No. 29]. For the reasons that follow, the undersigned recommends the district judge dismiss the petition without prejudice for lack of jurisdiction and deny Respondent's motion for summary judgment as moot. 1
I. Factual and Procedural Background
Petitioner is a federal inmate incarcerated at the Federal Correctional Institution (“FCI”) in Williamsburg, South Carolina. [ECF No. 1 at 1].
On February 23, 2005, Petitioner sold 29.4 grams of cocaine base to an undercover agent in Fitchburg, Massachusetts. [ECF No. 19-4 ¶¶ 12-14]. On March 31, 2005, a federal grand jury sitting in the District of Massachusetts returned an indictment charging Petitioner with distribution of cocaine base and aiding and abetting, and a warrant was issued for his arrest. United States v. Rosado, C/A No. 4:5-40011-FDS-1 (D. Mass. 2005), ECF Nos. 2, 6.
The court takes judicial notice of the records in Petitioner's criminal cases. Courts “may properly take judicial notice of matters of public record.” Phillips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009). “We note that the most frequent use of judicial notice . . . is in noticing the content of court records.” Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (internal quotations and citation omitted).
On April 6, 2005, officers executing that warrant attempted to arrest Petitioner. [ECF No. 19-4 ¶¶ 15-18]. Petitioner failed to pull his car over, and, instead, sped away, leading police in pursuit. Id. ¶¶ 16-17. He ultimately crashed the car he was driving and exited the car holding a firearm. Id. ¶ 1718. Police instructed him to drop the gun. Id. ¶ 18. He complied, dropping the gun on the street, and fled on foot. Id. Police apprehended and arrested him near the crash site. Id. Police then seized the gun he dropped and conducted 2 an inventory search of the crashed car. Id. ¶¶ 18-19. The inventory search revealed over 40 grams of cocaine base and a second loaded firearm in the car. Id. ¶¶ 19-20.
On April 11, 2005, the Government filed an information pursuant to 21 U.S.C. § 851, giving Petitioner notice of enhanced penalties due to a prior drug felony conviction, a 1996 Massachusetts state conviction for possession with intent to distribute cocaine. Rosado, ECF No. 10. In November 2005, the grand jury returned a superseding indictment, with additional charges including the felon-in-possession count arising from the circumstances surrounding Petitioner's arrest. Rosado, ECF No. 30. In September 2006, the grand jury returned a second superseding indictment that charged Petitioner with distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(B)(iii), and 18 U.S.C. § 2 (Count 1); possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(B)(iii), and 18 U.S.C. § 2 (Count 2); possession of firearms in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c)(1) (Count 3); and being a felon in 3 possession of firearms, in violation of 18 U.S.C. § 922(g)(1) (Count 4). Rosado, ECF No. 63. Counts Two, Three, and Four all related to the date of April 6, 2005. Id.
Prior to committing the crimes in his currently sentence, Petitioner was convicted of two state felonies and sentenced to multi-year terms of imprisonment. [See ECF No. 19-4 ¶ 52 (1995 conviction for unlawful possession of cocaine with intent to distribute; sentenced to 30 months; served over one year); id. ¶ 53 (1997 conviction for conspiracy to commit murder; sentenced to seven years; served approximately four years)].
Petitioner proceeded to a jury trial on all counts. During trial, the parties entered into the following stipulation related to his felon status:
Stipulation No. 1, the parties in this case, that is the defendant, Andre Rosado, by Ed Hayden, his attorney, and the United States of America, by Leah B. Foley and Paul G. Casey, Assistant U.S. Attorneys hereby stipulate and agree as follows: That prior to April 6, 2005, Andre Rosado had been convicted in a court of a felony, that is, a crime punishable by prison term exceeding one year.[ECF No. 19-3 at 49]. Following a four-day trial, the jury found Petitioner guilty on all four counts. Rosado, ECF No. 82.
Prior to sentencing, the United States Probation Office produced a Presentence Report (“PSR”). The PSR determined that Petitioner was responsible for 77.1 grams of crack cocaine, comprised of the 29.4 grams Petitioner sold to the undercover agent and the 47.7 grams recovered from Petitioner and his car upon his arrest. [ECF No. 19-4 ¶¶ 13-14, 20, 32]. The PSR also found Petitioner qualified as a career offender under U.S.S.G. § 4B1.1, with a total offense level of 37 and a criminal history category of VI, which resulted in a Guideline sentence of 360 months-to-life imprisonment on Counts One, Two, and Four, with 60 months consecutive on Count Three. Id. 4 ¶¶ 41-45. Petitioner's total Guideline sentence range was therefore 420 months to life imprisonment. Id. ¶ 46.
At sentencing, on March 9, 2007, the Government argued to the court in support of the Guideline range, in part, as follows:
And I would also-just also like to point out that right before we were going to trial, the defendant had actually stated that he was going to require the Government to prove his prior convictions to the jury instead of stipulating to them, so that's even further proof that he actually knew the Government-which prior convictions the Government knew of, which included the drug offense, which is referenced in the 851 and the prior conspiracy to commit murder; and so, that was further evidence that he knew that we knew of these prior convictions and that we intended to move forward for enhanced sentencing based on that.[ECF No. 19-5 at 10]
At sentencing, after observing that the Guideline's sentence “is the highest that I have ever seen as a judge, ” the district court questioned the “marginal value from a deterrent standpoint” of imposing a sentence as long as that suggested by the Guidelines. Id. at 20-21. The district court therefore varied downward, imposing a lesser, but still lengthy, sentence of 360 months, explaining that “given this record and these circumstances, ” “the protection of the public . . . is the highest priority.” Id. at 21-22.
Petitioner appealed to the United States Court of Appeals for the First Circuit, raising challenges to the sufficiency of the evidence as to the possession of cocaine base with intent to distribute and possession of firearms in 5 furtherance of drug trafficking offense, disputing the district court's finding that the drug involved was crack cocaine rather than another form of cocaine base and arguing that the sentence was longer than necessary. United States v. Rosado, 273 Fed.Appx. 1 (1st Cir. 2008). The First Circuit affirmed the conviction and sentence. Id.
Petitioner continued to challenge his convictions and sentence in a number of motions pursuant to 28 U.S.C. § 2255 on a number of different grounds. See Rosado, ECF No. 101 (§ 2255 petition raising a variety of constitutional claims and alleging insufficiency of the evidence); Rosado, ECF No. 137 (§ 2255 petition based on Descamps v. United States, 133 S.Ct. 2276 (2013), and Alleyne v. United States, 133 S.Ct. 2151 (2013)); Rosado, ECF No. 170 (§ 2255 petition challenging his career offender status based on Johnson v. United States, 135 S.Ct. 2551 (2015)). All of Petitioner's § 2255 challenges were unsuccessful. See Rosado, ECF Nos. 125, 149, 157, 164, 182.
Petitioner filed the instant § 2241 habeas petition in July 2021. [ECF No. 1]. He contends that his felon-in-possession conviction should be vacated in light of Rehaif v. United States, 139 S.Ct. 2191 (2019), which held that, to prove an offense under 18 U.S.C. §§ 924(a)(2) and 922(g), the government must prove the defendant knew he possessed a firearm and knew he belonged to a category of persons barred from possessing a firearm at the time of possession. 6
II. Discussion
A. Standard of Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in its favor. Id. at 255. However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, 7 by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e).
B. Habeas Corpus 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”), 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).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
C. Analysis
A petition for habeas corpus relief brought pursuant to 28 U.S.C. § 2255 is filed in the sentencing court and a petition brought pursuant to 28 U.S.C. § 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). “[I]t is well established that defendants convicted in federal court are obliged to seek 8 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)). Challenges to the execution of a sentence are properly raised in a § 2241 petition. Vial, 115 F.3d 1194 n.5.
Section 2255 contains a savings clause that “provides that an individual may seek relief from an illegal detention by way of a traditional 28 U.S.C. § 2241 habeas corpus petition, if he or she can demonstrate that a § 2255 motion is ‘inadequate or ineffective to test the legality of his detention.'” United States v. Wheeler, 886 F.3d 415, 419 (4th Cir. 2018); see also 28 U.S.C. § 2255(e) (“An application for a writ of habeas corpus on 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.”). The Fourth Circuit has joined the Second, Sixth, Eighth, Ninth, and Eleventh Circuits in finding the savings clause requirements are jurisdictional. Id. at 424 n.5, 425. If the savings clause requirements are not met, the court cannot consider the petition.
The Fourth Circuit has found § 2255 inadequate and ineffective to test the legality of a conviction when: 9
(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.Jones, 226 F.3d at 333-34. Additionally, the Fourth Circuit has found § 2255 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.
“In evaluating substantive claims under the savings clause . . . we look to the substantive law of the circuit where a defendant was convicted.” Hahn v. Moseley, 931 F.3d 295, 301 (4th Cir. 2019) (citing In re Davenport, 147 F.3d 605, 611-12 (7th Cir. 1998); Eames v. Jones, 793 F.Supp.2d 747, 750 (E.D. N.C. 2011)). Because Petitioner was convicted in the district court for the 10 district of Massachusetts, the undersigned has considered the substantive law of the First Circuit. The applicable “procedural law, ” however, is that of the district court's home circuit.
Focusing on the second part of the Jones test, neither party has cited First Circuit precedent indicating that the substantive law has changed such that the conduct for which Petitioner was convicted has been deemed not criminal. Instead, Petitioner argues the government erred in that neither the relevant indictment nor the jury instructions indicated that the government had to prove Petitioner knew of his prohibited status as a felon.
The First Circuit utilizes a limited application of the savings clause in petitions brought pursuant to § 2241. See, e.g., Trenkler v. United States, 536 F.3d 85, 99 (1st Cir. 2008) (“courts have allowed recourse to the savings clause in rare and exceptional circumstances, such as those in which strict adherence to AEDPA's gatekeeping provisions would result in a complete miscarriage of justice”) (citations omitted)); Flores-Montano v. Spaulding, C/A No. 18-40047-TSH, 2021 WL 4132580, at *2 (D. Mass. Sept. 10, 2021) (“‘Courts allow recourse to the savings clause only ‘in rare and exceptional circumstances,' such as those in which the restrictions on § 2255 motions would result in a ‘complete miscarriage of justice, '” and “[m]ost courts have required a credible allegation of actual innocence to access the savings clause.'”) (citations omitted)). 11
The few First Circuit courts that have addressed this issue-of whether the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal-have rejected Rehaifchallenges where petitioners have failed to show that “based on a new statutory interpretation by the Supreme Court, the petitioner is no longer guilty of the crime of conviction.” Edwards v. Warden, FCI Berlin, C/A No. 19-1271-JD, 2020 WL 2404886, at *2 (D.N.H. May 12, 2020) (holding the record shows petitioner knew “he had served prison terms of more than one year”); see also Davis v. Warden, FCI-Berlin, C/A No. 20-599-LM, 2021 WL 2994390, at *2 (D.N.H. June 24, 2021), report and recommendation adopted sub nom. Davis v. FCI Berlin, Warden, C/A No. 20-599-LM, 2021 WL 2987357 (D.N.H. July 15, 2021) (Rehaifchallenge dismissed “for lack of savings clause jurisdiction”).
Although the parties argue otherwise, Petitioner also cannot satisfy the second prong of the Jones test under Fourth Circuit precedent, as has been held by this court multiple times, in that “ Rehaif did not create a substantive change in the law but simply clarified the elements that the Government would 12 have had to prove at trial had Petitioner exercised his right to a trial.” Sadler v Bragg, C/A No. 0:20-0665-JFA-PJG, 2020 WL 6110989, at *3-4 (D.S.C. Oct. 16, 2020) (applying Fourth Circuit law and collecting cases); see also, e.g., Mingo v. Barnes, C/A No. 9:20-2308-TMC, 2021 WL 3629902, at *4 (D.S.C. Aug. 17, 2021) (holding Petitioner “cannot meet the requirements of the Jones test to show the conduct of which he was convicted is no longer criminal” where “Petitioner entered a stipulation at trial that he had a prior felony conviction”).
Respondent argues that the second Jones prong is met. [See ECF No. 19-1 at 7]. However, as also noted by Respondent, see id. at 6 n.4, and discussed above, this court has numerous times held otherwise. But see Moore v. Warden of FCI Edgefield, C/A No. 9:20-02089-TLW, 2021 WL 3828828, at *5 (D.S.C. Aug. 27, 2021) (“Because Rehaif changed the substantive law such that the conduct of which Moore was convicted is ‘no longer a source of criminal liability,' he has satisfied the second element of the Jones test.”).
Petitioner relies on United States v. Medley, 972 F.3d 399 (4th Cir. 2020), to argue where “an indictment [fails] to provide proper notice combined with an improper jury instruction that ‘omits' an element of a crime, ” these “are substantial errors that must be corrected under the plain error doctrine.” [ECF No. 29 at 2]. The Fourth Circuit has granted a rehearing en banc in Medley to resolve this issue. See United States v. Medley, 828 Fed.Appx. 923 (4th Cir. 2020). Additionally, in a recently decided case, the Supreme Court held “the omission of a single element from jury instructions is not structural.” Greer v. United States, 141 S.Ct. 2090, 2100 (2021). This explicitly overruled the Fourth Circuit's holding to the contrary in United States v. Gary, 954 F.3d 194, 205 (4th Cir. 2020), cert. granted, 141 S.Ct. 974 (2021), and rev'd sub nom. Greer, 141 S.Ct. 2090.
Additionally, to the extent Petitioner challenges the validity of his sentence rather than or in addition to the validity of his conviction, he fails to satisfy the savings clause test as found in Wheeler applicable to challenge a sentence for the same reason stated above and because Rehaif has not been held to be retroactive on collateral review. See, e.g., Asar v. Travis, C/A No. 13 6:20-394-BHH, 2020 WL 3843638, at *2 (D.S.C. July 8, 2020); see also, e.g., United States v. Rodriguez, 523 F.Supp.3d 142, 146 (D. Mass. 2021) (“Because there is no new evidence at issue, to obtain First Circuit certification Rodriguez must show that Rehaif announced a new and retroactive rule of constitutional law. The First Circuit has not issued an opinion on this issue, but the Second, Third, Sixth, and Eleventh Circuits have held that Rehaif does not authorize successive § 2255 petitions because it announced a new statutory interpretation, not a new rule of constitutional law . . . . I concur with our sister circuits and find that if I transferred Rodriguez's motion to the First Circuit, it would likely deny review because Rehaif is not a new rule of constitutional law.”).
However, even if Petitioner could meet the savings clauses under either Jones or Wheeler, his Rehaif claim is procedurally defaulted. Claims of errors that could have been raised, but were not, are procedurally barred unless the petitioner shows both cause for the default and actual prejudice, or demonstrates that he is actually innocent of the offense. See Bousley v. United States, 523 U.S. 614, 621-22 (1998); United States v. Frady, 456 U.S. 152, 170 (1982); United States v. Bowman, 267 Fed.Appx. 296, 299 (4th Cir. 2008); Moore, 2021 WL 3828828, at *5 (“Although Moore's satisfaction of § 2255's savings 14 clause opens the doors of the courthouse for consideration of his petition, he promptly runs into an imposing hurdle: the procedural default doctrine.”).
Turning to actual prejudice, here, as stated above, the record shows that prior committing the offenses he was convicted of in the instant case, Petitioner had been previously been convicted of two state felony offenses for which he was sentenced to and served multi-year terms of imprisonment in state prison. In addition, at trial, the parties entered into a stipulation in which Petitioner stipulated to having been convicted in a court of a felony.
Given that Petitioner has failed to establish actual prejudice, the court need not address whether he has shown cause for the procedural default.
Because the parties stipulated at trial that the defendant had a prior felony conviction, the Government was prohibited under Old Chiefv. United States, 519 U.S. 172, 185 (1997), from introducing additional evidence of his felony convictions.
The Supreme Court has addressed this issue, albeit in a different context, on plain error review. In Greer, the Court heard consolidated appeals from an Eleventh Circuit case, Greer, 798 Fed.Appx. 483 (11th Cir. 2020), in which the defendant, who had stipulated that he was a felon, did not request or receive a jury instruction requiring that the jury find that he knew he was a felon when he possessed a firearm, as well as a Fourth Circuit case, Gary, 954 F.3d 194, in which the plea colloquy did not advise the defendant, who had admitted that he was a felon when he pled guilty, that a jury must find that 15 he knew he was a felon when he possessed the firearms in question if he decided to stand trial. 141 S.Ct. at 2097-98.
Addressing whether these failures to account for Rehaifs knowledge of status element constituted plain-error on appeal, the Court held:
In felon-in-possession cases, a Rehaiferror is not a basis for plainerror relief unless the defendant first makes a sufficient argument or representation on appeal that he would have presented evidence at trial that he did not in fact know he was a felon. When a defendant advances such an argument or representation on appeal, the court must determine whether the defendant has carried the burden of showing a “reasonable probability” that the outcome of the district court proceeding would have been different. Because Greer and Gary did not make any such argument or representation on appeal in these cases, they have not satisfied the plain-error test.Id. at 2100. The Court noted that a defendant faces “an uphill climb” to make such a showing, reasoning that “[i]f a person is a felon, he ordinarily knows he is a felon.” Id. at 2097; see also id. (“Felony status is simply not the kind of thing that one forgets.”) (citing Gary, 963 F.3d at 423 (Wilkinson, J., concurring in denial of reh'g en banc)). The defendants in Greer could not meet this burden since:
[b]efore their respective felon-in-possession offenses, both Greer and Gary had been convicted of multiple felonies. Those prior convictions are substantial evidence that they knew they were felons. Neither defendant has ever disputed the fact of their prior convictions. At trial, Greer stipulated to the fact that he was a felon. And Gary admitted that he was a felon when he pled guilty. Importantly, on appeal, neither Greer nor Gary has argued or made a representation that they would have presented evidence at16
trial that they did not in fact know they were felons when they possessed firearms. Therefore, Greer cannot show that, but for the Rehaif error in the jury instructions, there is a reasonable probability that a jury would have acquitted him. And Gary likewise cannot show that, but for the Rehaiferror during the plea colloquy, there is a reasonable probability that he would have gone to trial rather than plead guilty.Id. at 2097-98; see also, e.g., United States v Velazquez-Aponte, 940 F.3d 785, 801 (1st Cir. 2019) (rejecting Rehaif challenge on plain error review following a trial and holding “Velazquez would have to show that his substantial rights were affected in that ‘but for [the error claimed], the result of the proceeding would have been different.' Yet here, the government established that Velazquez was a felon via a self-authenticating official state court document [a certified copy of a prior Puerto Rico court judgment reflecting that Velazquez was convicted of a felony in state court], which contained Velazquez's identifying information and which Velazquez did not challenge in any way.”) (citations omitted)); United States v. Caldwell, 7 F.4th 191, 213 (4th Cir. 2021) (rejecting Rehaif challenge on plain error review following a trial and holding “the same factors that the Supreme Court found relevant in dismissing the Rehaif challenge in Greer are present here. Before the date of the robbery, Caldwell ‘had been convicted of multiple felonies.' He has never disputed the validity of these felony convictions, and indeed, he stipulated at trial to having had such a conviction. We also note that Caldwell had, on several occasions, 17 served sentences longer than a year-including two stints of more than five years each in federal prison-making it virtually impossible to believe he did not know he had been convicted of crimes punishable by such sentences.”) (citations omitted)).
Similarly, regarding actual innocence, Petitioner faces a high burden. “[A]ctual innocence means factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 624 (citations omitted). “To establish actual innocence, [a movant] must demonstrate that, ‘in light of all the evidence,' ‘it is more likely than not that no reasonable juror would have convicted him.'” Id. at 623 (quoting Schlup v Delo, 513 U.S. 298, 327-28 (1995)).
Petitioner has cited no new evidence to demonstrate his innocence, and, for the same reasons stated above, the record demonstrates that Petitioner was aware of his felon status where he stipulated at trial to his felon status and served more than a year in prison on each of two state convictions prior to committing the acts which formed the basis of his federal criminal charges. Indeed, Petitioner does not argue in his petition or in briefing that he was unaware of his status as a felon.
In sum, because Petitioner has not met the savings clause requirements set forth in Jones and Wheeler, the court does not have jurisdiction pursuant to 28 U.S.C. § 2241 to entertain his challenge to the validity of his conviction 18 and sentence. In the alternative, even if the court had jurisdiction, Petitioner's claim is procedurally defaulted. Therefore, the undersigned recommends the court dismiss the petition without prejudice. See Platts v. O'Brien, 691 Fed.Appx. 774 (4th Cir. 2017) (“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.”) (citing S. Walk at Broadlands Homeowners Assn v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013)).
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge dismiss the petition without prejudice for lack of jurisdiction and deny Respondent's motion for summary judgment [ECF No. 19] as moot.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.” 19
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). 20