Opinion
2:21-cv-02236-RBH-MGB
09-08-2022
Rodrigo Hernandez Sanchez, #43603-086, Petitioner, v. Warden Mackelburg, Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Rodrigo Hernandez Sanchez (“Petitioner”), a federal prisoner proceeding pro se, brings this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2) (D.S.C.), the assigned United States Magistrate Judge has reviewed the petition and submits this Report and Recommendation to the United States District Judge. For the reasons discussed below, the undersigned recommends that the petition be summarily dismissed, without prejudice and without requiring the warden to respond.
A federal court may take judicial notice of the contents of its own records, as well as those records of other courts. See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); see also Tisdale v. South Carolina Highway Patrol, No. 0:09-cv-1009-HFF-PJG, 2009 WL 1491409, at *1 n.1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. Aug. 27, 2009) (noting that the court may also take judicial notice of factual information located in postings on government web sites). The undersigned therefore takes judicial notice of the records filed in Petitioner's underlying criminal case and subsequent habeas actions in reaching the recommendation herein.
Petitioner is an inmate at the Federal Correctional Institution, Edgefield (“FCI Edgefield”) in South Carolina. On August 3, 2018, before the United States District Court for the Western District of Washington, Petitioner pleaded guilty to conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846(a)(1), (b)(1)(B), and 18 U.S.C. § 2; and illegal reentry after deportation in violation of 8 U.S.C. § 1326(a). (United States v. Hernandez Sanchez, Case No. 3:17-cr-05384-RJB-1, Dkt. No. 60.) The district court accepted the plea agreement on August 20, 2018, and Petitioner was sentenced to a total term of 84 months' imprisonment on January 25, 2019. (Crim. Case No. 5384, Dkt. Nos. 64, 95.)
On February 7, 2019, Petitioner filed his first motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging, among other things, ineffective assistance of counsel for failure to communicate adequately with Petitioner (referencing a “language barrier”) and failure to argue purported Fourth and Fourteenth Amendment violations, including a “Payton violation.” (Hernandez Sanchez v. United States, Case No. 3:19-cv-05105-RJB, Dkt. 1; Crim. Case No. 5384, Dkt. No. 96.) The district court denied Petitioner's § 2255 motion on the merits on April 5, 2019, and the Ninth Circuit Court of Appeals affirmed the decision on October 25, 2019. (Case No. 5105, Dkt. Nos. 7, 10; Crim. Case No. 5384, Dkt. No. 98; see also Appellate Case No. 19-35349.)
In Payton v. New York, 445 U.S. 573 (1980), the United States Supreme Court ruled that the Fourth Amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect's home to make a routine felony arrest.
On July 8, 2019, Rivers filed his second motion to vacate, set aside, or correct sentence pursuant to § 2255. (Hernandez Sanchez v. United States, Case No. 3:19-cv-05643-RJB, Dkt. No. 1; Crim. Case No. 5384, Dkt. No. 99.) On July 16, 2019, the district court transferred Petitioner's motion to the Ninth Circuit Court of Appeals, explaining that,
[a]ny prisoner seeking to file a successive motion must first file, in the appropriate court of appeals, a motion for an order authorizing the district court to consider the successive application. 28 U.S.C. § 2255; 28 U.S.C. § 2244(b)(3)(A). Because Petitioner has previously filed at least one 28 U.S.C. § 2255 motion, the instant motion is a second or successive one. Accordingly, this Court is without jurisdiction to consider Petitioner's motion until the Ninth Circuit Court of Appeals has authorized its filing.(Case No. 5643, Dkt. No. 3 at 2-3; Crim. Case No. 5384, Dkt. No. 100.) The Ninth Circuit treated Petitioner's motion as an application for authorization to file a second or successive § 2255 motion and denied the same on August 21, 2019, finding that Petitioner had failed to satisfy 28 U.S.C. § 2255(h), which allows authorization of a second or successive motion where there is:
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.(Appellate Case No. 19-71800.)
On September 6, 2019, Petitioner filed a third motion to vacate, set aside, or correct sentence pursuant to § 2255, which was once again transferred to the Ninth Circuit as successive and promptly denied under § 2255(h). (Hernandez Sanchez v. United States, Case No. 3:19-cv-05840-RJB, Dkt. No. 1; Crim. Case No. 5384, Dkt. No. 103; see also Appellate Case No. 1972317.)
It is against this procedural background that Petitioner now brings a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 before the United States District Court for the District of South Carolina.(Hernandez Sanchez v. Fox, Case No. 2:21-cv-02236-RBH-MGB, Dkt. Nos. 1, 1-2.) Petitioner relies on the same claims raised in his initial § 2255 motion, reiterating that his counsel was ineffective for failing to communicate adequately in light of an apparent “language barrier,” and for refusing “to address and to investigate the many substantive due process violations.” (Case No. 2236, Dkt. No. 1 at 3; Dkt. No. 1-2 at 4, 6.) Petitioner also renews his previous claims challenging the validity of his arrest under Payton v. New York, 445 U.S. 573 (1980). (Case No. 2236, Dkt. No. 1 at 3.) With respect to relief, Petitioner asks that this Court “reduce” his sentence based on his legal counsel's purported errors and appoint him “effective representation on [his] case.” (Case No. 2236, Dkt. No. 1-2 at 8.)
Any further references herein to the instant “petition” encompass both Petitioner's initial pleading (Dkt. No. 1) and updated pleading (Dkt. No. 1-2), which are being considered together as one petition.
To the extent Petitioner is seeking legal representation in relation to this particular habeas action, the undersigned finds the request moot, as this action is subject to summary dismissal for the reasons discussed below.
STANDARD OF REVIEW
Under the established local procedure in this judicial district, a careful review has been made of Petitioner's pro se petition pursuant to the Rules Governing Section 2254 Cases in the United States District Courts;the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”); 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); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); and Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
See Rule 1(b), Rules Governing § 2254 Cases (allowing district courts to apply the rules to § 2241 petitions).
The narrow question before the Court is whether it “plainly appears” that Petitioner is not entitled to any relief. Rule 4, Rules Governing § 2254 Cases. If so, his petition must be dismissed; if not, the warden must respond. Id. Because Petitioner is a pro se litigant, his petition is accorded liberal construction. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007); Gordon, 574 F.2d at 1151. Even under this less stringent standard, however, the Court cannot 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, 390-91 (4th Cir. 1990). Such is the case here.
DISCUSSION
It is well-established that a federal prisoner generally must challenge the legality of his conviction and/or sentence pursuant to 28 U.S.C. § 2255. Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010); In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997). Once a federal prisoner has filed an unsuccessful § 2255 motion, as Petitioner has here, he may not pursue additional collateral review except under narrow circumstances. Specifically, to file a second or successive § 2255 application, the prisoner must “move in the appropriate court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A).
If it appears “that the remedy by [a § 2255] motion is inadequate or ineffective to test the legality of [the] detention,” the prisoner may then proceed with a § 2241 petition pursuant to the “savings clause” under § 2255(e):
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). The Fourth Circuit has emphasized, however, that “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.” In re Vial, 115 F.3d at 1194 n.5; see also Jackson v. Brooks, No. 2:02-cv-00068, 2002 WL 32509281, at *3 (E.D. Va. Nov. 20, 2002), aff'd, 61 Fed.Appx. 898 (4th Cir. 2003) (explaining that appellate court's denial of petitioner's application to file successive petition “does not render § 2255 inadequate or ineffective in challenging his detention so as to entitle him to file a claim for relief under § 2241”).
The Fourth Circuit clarified this analysis in In re Jones, 226 F.3d 328 (4th Cir. 2000), explaining that a petitioner must satisfy the following three criteria in order to demonstrate that a § 2255 motion is inadequate or ineffective to test the legality of his conviction:
(1) at the time of 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.226 F.3d at 333-34. The Fourth Circuit later established a similar set of criteria in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), to determine whether a § 2255 motion is inadequate or ineffective to test the legality of a prisoner's sentence:
(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.886 F.3d at 429. Because the savings clause requirements are jurisdictional, the court cannot entertain a petition that does not satisfy each of the aforementioned elements. See, e.g., Rice, 617 F.3d at 807; Wheeler, 886 F.3d at 426.
Turning to the instant case, it appears Petitioner is primarily challenging his sentence. (See Case No. 2236, Dkt. No. 1-2 at 8.) However, the petition plainly fails to satisfy the second and fourth prongs under Wheeler, as it does not cite or reference any change in substantive law that would apply retroactively on collateral review and render Petitioner's sentence fundamentally deficient. Rather, Petitioner merely reiterates the same challenges previously rejected by the District Court for the Western District of Washington and asks that this Court reach a different conclusion. As suggested above, a § 2241 habeas petition simply is not an additional or alternative remedy to § 2255. Thus, Petitioner may not use § 2241 “to overrule the sentencing court, which has already considered and rejected [his] claims relating to the underlying validity of his convictions and sentence.” Hernandez-Vilar v. Antonelli, No. 5:18-cv-00183-MGL-KDW, 2018 WL 1320238, at *2 (D.S.C. Feb. 14, 2018), adopted, 2018 WL 1124399 (D.S.C. Mar. 1, 2018).
Because a petitioner must satisfy all four requirements under Wheeler in order to confer jurisdiction on the § 2241 court, Petitioner cannot use the savings clause to challenge his sentence here. See Wheeler, 886 F.3d at 426 (explaining that the savings clause requirements are jurisdictional and may not be waived).
Although Petitioner appears to challenge only his sentence, the undersigned notes that to the extent he also intends to challenge his convictions, any such claims would be equally unpersuasive in invoking the savings clause. Once again, Petitioner's recycled arguments do not demonstrate a subsequent change in the relevant law that would impact the validity of his convictions. See In re Jones, 226 F.3d at 333-34 (requiring a change in substantive law, such that the conduct of which the petitioner was convicted is deemed not to be criminal). And because Petitioner's claims do not satisfy the elements under In re Jones, he cannot use the savings clause to challenge his convictions in this case. See Rice, 617 F.3d at 807 (finding that the district court lacked jurisdiction over the habeas petition where petitioner was unable to satisfy the second prong of the In re Jones test).
CONCLUSION
The undersigned therefore RECOMMENDS that the Court DISMISS this petition for a writ of habeas corpus for lack of jurisdiction, without prejudice and without requiring the warden to file a return.
IT IS SO RECOMMENDED.
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).