Opinion
C/A No. 4:20-2302-RMG-TER
09-23-2020
Renaldo Shepard, #58763-019, also known as, Renaldo Shephard, Petitioner, v. Bryan K. Dobbs, Warden, Respondent.
Report and Recommendation
Petitioner is a federal prisoner in custody in South Carolina at FCI Williamsburg. Petitioner was sentenced by the U.S. District Court of the Northern District of Georgia in 2009. (ECF No. 1). He is seeking habeas relief under § 2241 and proceeding in this action pro se. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings pursuant to the procedural provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted 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, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, the petition is subject to summary dismissal.
Furthermore, this court is charged with screening Petitioner's lawsuit to determine if "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4 of Rules Governing Section 2254 Cases in the United States District Courts. Following the required initial review, it is recommended that the Petition submitted in this case should be dismissed.
DISCUSSION
Petitioner argues his conviction and sentences should be vacated under Rehaif v. U.S., 139 S. Ct. 2191(2019) arguing the government was required to prove he had knowledge of facts that made his possession of a firearm unlawful (ECF No. 1). Petitioner argues he meets the Jones test. (ECF No. 1-3 at 4). Petitioner also argues his conviction and sentence under § 924(c) is unconstitutional under Rehaif. (ECF No. 1-3 at 8).
Petitioner was convicted by a jury and sentenced on three counts: § 922(g), 924(e) possession of a firearm by a convicted felon, § § 841(a)(1), 841(b)(1)(B)(iii) and 851,possession with intent to distribute at least 5g of cocaine, and possession of a firearm in furtherance of a drug trafficking crime under § 924(c). U.S. v. Shepard, No. 1:06-cr-00482-SCJ-RGV(N.D. Ga.)(ECF No. 126). Petitioner was sentenced to 200 months on each of Counts 1 and 2, to run concurrently; and 60 months on Count 3, to run consecutive to Counts 1 and 2. (ECF No. 126).
The instant Petition, filed pursuant to 28 U.S.C. § 2241, is subject to summary dismissal because "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)). Petitioner cannot challenge his federal conviction and sentence under § 2241, unless he can satisfy 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 also Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001); In other words, 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. 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).
Since Petitioner alleges he is contesting both his conviction and his sentence, out of an abundance of caution, both the Jones test and the Wheeler test will be addressed. Petitioner cannot meet either test.
Petitioner fails to satisfy criteria set forth by the Fourth Circuit to determine whether a § 2255 motion would be inadequate or ineffective to test the legality of a prisoner's detention. In In re Jones, 226 F.3d 328 (4th Cir. 2000), the court held that a petitioner must show:
(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.Id. at 333-34.
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. U.S. v. Wheeler, 886 F.3d 415 (4th Cir. 2018). Section "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." Id. at 429.
Consideration of this issue is appropriate under § 1915 review because the § 2255 savings clause is a jurisdictional requirement and subject matter jurisdiction may be raised sua sponte. In the past, the Fourth Circuit has held that 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. In Wheeler, the Fourth Circuit again held that "the savings clause is a jurisdictional provision." Wheeler, 886 F.3d at 423.
Section 922(g)(1) prohibits any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year (a "convicted felon") from possessing any firearm or ammunition. 18 U.S.C. § 922(g)(1). On June 21, 2019, the Supreme Court decided Rehaif, holding "that in a prosecution under 18 U.S.C. § 922(g) ... the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm." 139 S. Ct. at 2200. The petitioner in Rehaif had been found guilty after a jury trial. Id. at 2194.
In evaluating claims under the savings clause, the court is to look to the substantive law of the circuit where a defendant was convicted. Hahn v. Moseley, 931 F.3d 295 (4th Cir. 2019)(internal cites omitted). As Petitioner was convicted in the United States District Court of the Northern District of Georgia, this court considers the substantive law of the Eleventh Circuit Court of Appeals.
Petitioner cannot meet the second element of Wheeler, "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" or the second prong of Jones, "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." Petitioner cannot satisfy the second prong of Wheeler or Jones showing that settled substantive law changed such that the conduct is no longer criminal.
Petitioner cannot meet the second prong of In re Jones because he cannot show as a matter of law that Rehaif rendered his conduct not criminal. Rehaif only clarified what the government needed to prove to secure a conviction under 18 U.S.C. §922(g), and possession of a firearm and ammunition by a felon remains illegal. See Hoffman v. Breckon, C/A No.; 7:18-cv-00265, 2020 WL 929589, at *9 (W.D. Va. Feb. 26, 2020) (collecting district court cases in the Fourth Circuit finding 2241 petitioners could not meet the second element of the In re Jones test based on Rehaif), appeal docketed, No. 20-6322 (4th Cir. Mar. 6, 2020)(collecting cases that found Rehaif did not change substantive law because the conduct for which the petitioners were convicted "is still illegal").
The Eleventh Circuit specifically addressing Rehaif on direct appeal in United States v. Reed, 941 F.3d 1018, 2019 WL 5538742, at *3 (11th Cir. Oct. 28, 2019), held that the omission of the knowledge-of-status element from an indictment charging a violation of 922(g) did not amount to an error that affected the defendant's substantial rights or the fairness, integrity, or public reputation of his trial. The court in Reed noted that when the defendant possessed the firearm, he had been convicted of eight felony convictions, and he had served at least 18 years in prison before being arrested for possessing the firearm. Id.
Failure to charge an element of the offense pre-Rehaif is a non-jurisdictional defect that does not affect the rights of the accused. United States v. McLellan, 958 F.3d 1110, 1118 (11th Cir. 2020). In McLellan, the accused there also contested jury instructions which failed to include the knowledge of status element; however, the court found it did not affect his substantial rights or the fairness of the proceedings. Id. at 1119( defendant there had stipulated to the fact he was a felon and further there was evidence of his knowledge of his felonies: eight years in prison). "We have held that, where the record clearly demonstrates that it would be implausible for the defendant to not have been aware of his felony status, a Rehaif error does not affect his substantial rights." Id.(citing Reed, 941 F.3d at 1022).
During Petitioner's jury trial, the first government's exhibit was a stipulation of fact signed by Petitioner that stated prior to the alleged offense date in 2005, Petitioner was convicted of a felony offense, that is, a crime punishable by imprisonment for a term exceeding one year. U.S. v. Shepard, No. 1:06-cr-00482-SCJ-RGV(N.D. Ga.)(ECF No. 150 at 46). Prior to the entry of the stipulation into evidence, there was a discussion out of the presence of the jury, where Petitioner himself was upset about not introducing some evidence that implicated his prior convictions. The judge stated his attorneys saw the benefit for the jury not to know the number and types of convictions Petitioner had and took advantage of that protection. (ECF No. 150 at 24). The court asked if Petitioner thought it was better for the jury to hear that Petitioner had three felony convictions, then Petitioner stated "no, not really," and that he had paid his debt to society for that. (ECF No. 150 at 25). An ATF agent testified Petitioner admitted he was aware he was a convicted felon and aware he could not possess a firearm. (ECF No. 150 at 33). Petitioner told the agent he had been robbed of his drugs in the past and had the gun for protection. (ECF No. 150 at 33). The jury was later instructed regarding the stipulation and that one of the elements regarding a prior felony conviction was admitted and the jury could accept it as having been proven. (ECF No. 150 at 46-47). A different ATF agent testified that Petitioner stated he was aware he was a convicted felon. (ECF No. 150 at 143). Again later, the jury was instructed on the stipulation. (ECF No. 151 at 57). Moreover, despite the prior stipulation before the jury, at sentencing, Petitioner contested that he was not the individual named in the prior convictions. The government presented fingerprint comparison evidence of prior convictions of Petitioner's name and Petitioner's fingerprints. (ECF No. 130 at 4). The government presented proof it was all the same person, which the court found the evidence was overwhelming that it was Petitioner with the prior convictions, including but not limited to, robbery, possession of a firearm by a convicted felon(served five years), possession of marijuana with intent to distribute(served seven years), sale and distribution of narcotics, opiates (served seven years), possession of cocaine with intent to distribute (served seven years), and several other convictions. (ECF No. 130).
Like in Reed and McLellan, under Eleventh Circuit substantive law, there is no error here affecting Petitioner's substantial rights where Petitioner stipulated at trial he was a prior convicted felon and where Petitioner had served multiple years of imprisonment.
Petitioner has not shown, as required by In re Jones, that the substantive law changed such that the conduct of which he was convicted is deemed not to be criminal and Wheeler cannot be met because Rehaif has not been held to apply retroactively as required by the Wheeler test. See In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019) (recognizing that Rehaif has not been recognized as retroactive on collateral review). Because Petitioner stipulated at trial that he was a convicted felon and that the facts necessary for conviction regarding knowledge(prior years of multiple prison sentences) were present in the record, Petitioner is unable to show that his jury trial resulted in a conviction for conduct that is not criminal under Eleventh Circuit Court of Appeals substantive law. Because Petitioner has not shown that a motion filed pursuant to § 2255 is inadequate or ineffective to test the legality of his sentence thereby allowing him to file a § 2241 petition, the undersigned recommends this matter be dismissed.
Further, as to Petitioner's contest of his § 924(c) conviction using Rehaif, Rehaif has no effect on a 924(c) conviction. Matthews v. Bragg, No. 1:19-cv-3074-MBS, 2020 WL 1062868, at *2 (D.S.C. Mar. 5, 2020); Pierce v. United States, No. 4:17-CR-00256-RBH-1, 2020 WL 774404, at *4 (D.S.C. Feb. 18, 2020)(citing United States v. Studifin, 240 F.3d 415, 419 (4th Cir. 2001) (recognizing § 922(g) and § 924(c) are separate offenses); Cejas v. Entzel, No. 3:19-CV-18, 2019 WL 6717029, at *2 (N.D.W. Va. Dec. 10, 2019).
RECOMMENDATION
Accordingly, it is recommended that the Petition be dismissed without prejudice and without requiring the respondent to file a return.
See Platts v. O'Brien, 691 Fed. Appx. 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 ORDERED.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge September 23, 2020
Florence, South Carolina
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 2317
Florence, South Carolina 29503
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).