Opinion
2:21-cv-00440-RBH-MGB
06-03-2020
Kelvin Ross Sinclair, #15055-171, Petitioner, v. Warden of FCI Bennettsville, [1] Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Kelvin Ross Sinclair (“Petitioner”), a pro se federal prisoner, brings this action seeking a writ of habeas corpus under 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 Respondent to file a return.
BACKGROUND
Petitioner is an inmate at the Federal Correctional Institution, Bennettsville (“FCI Bennettsville”) in South Carolina. On December 19, 2006, Petitioner was indicted for unlawful possession of a firearm by a convicted felon pursuant to 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e) by a grand jury in the District of South Carolina. (See United States v. Sinclair, Criminal No. 4:06-cr-01321-RBH-1, Dkt. No. 1.) Prior to his trial, Petitioner stipulated to the following:
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) (noting that courts may take judicial notice of other courts' records and proceedings); see also Tisdale v. South Carolina Highway Patrol, No. 0:09-cv-1009-HFF-PJG, 2009 WL 1491409, at on February 1, 2008. (Crim. No. 1321, Dkt. No. 70.) *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.
On October 8, 2006, the defendant, KELVIN ROSS SINCLAIR, had previously been convicted of a crime punishable by imprisonment for a term exceeding one year within the meaning of Title 18, United States Code, Section 922(g)(1) and 921(a)(20). Therefore, on October 8, 2006, he could not lawfully possess a firearm or ammunition.(Crim. No. 1321, Dkt. No. 44.) Petitioner was tried and found guilty on August 8, 2007. (Crim. No. 1321, Dkt. Nos. 53, 54.) This Court sentenced him to a term of life imprisonment Petitioner's subsequent appeal on May 25, 2011. (United States v. Petitioner, Appellate No. 11-6395.)
Petitioner filed a timely appeal with the Fourth Circuit Court of Appeals, arguing that the District Court erred in: permitting the Government to introduce certain hearsay testimony; cross-referencing the U.S. Sentencing Guidelines Manual § 2A1.1 (2006) (First Degree Murder); and applying the Armed Career Criminal Act (“ACCA”) for purposes of his sentence. (See United States v. Sinclair, Appellate No. 08-4218.) The Fourth Circuit affirmed Petitioner's conviction and sentence by order dated November 24, 2008, and the United States Supreme Court denied his petition for a writ of certiorari on March 23, 2009. (App. No. 4218, Dkt. Nos. 34, 35; see also Sinclair v. United States, No. 08-4218.)
On November 18, 2010, Petitioner filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (Crim. No. 1321, Dkt. No. 84.) Following a full and complete briefing of the issues, Petitioner's motion was denied as untimely by order dated February 15, 2011. (See Crim. No. 1321, Dkt. No. 93, explaining that Petitioner filed his motion eight months past the one-year statutory deadline.) The Fourth Circuit Court of Appeals dismissed
On July 10, 2014, Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Middle District of Pennsylvania, challenging his sentence under Alleyne v. United States, 570 U.S. 99 (2013), and Whiteside v. United States, 748 F.3d 541 (4th Cir. 2014). (Sinclair v. Thomas, No. 3:14-cv-01116-RDM-CA.) The petition was transferred to the Fourth Circuit Court of Appeals as a motion for authorization to file a successive habeas application, and the Fourth Circuit denied Plaintiff's motion on July 29, 2014. (In re Sinclair, No. 14-340.) Petitioner then filed another motion for authorization to file a successive habeas application on April 26, 2016, citing the holding in Johnson v. United States, 576 U.S. 591 (2015). (In re Sinclair, No. 16-466.) The Fourth Circuit once again denied Petitioner's request on May 24, 2016.
Petitioner was apparently incarcerated at the United States Penitentiary, Lewisburg at this time.
It is against this procedural background that Petitioner now attempts to bring another petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Although Petitioner's allegations are somewhat incoherent and difficult to follow, his petition appears to challenge his conviction and sentence under the United States Supreme Court's holding in Rehaif v. United States, 139 S.Ct. 2191 (2019). (Dkt. No. 1 at 5-9.) Notably, Petitioner also filed a contemporaneous motion with the Fourth Circuit Court of Appeals seeking authorization to file a successive 28 U.S.C. § 2255 application based on the holding in Rehaif, as well as the holding in United States v. Gary, 954 F.3d 194 (4th Cir. 2020), cert. granted, 141 S.Ct. 974 (2021), which was decided shortly thereafter. (In re Sinclair, No. 21-126.) According to the Fourth Circuit docket, that matter was placed in abeyance on March 8, 2021, pending a decision in Appellate No. 19-373. In turn, Appellate No. 19-373 has been placed in abeyance pending issuance of the mandate in United States v. Gary, Appellate No. 18-4578, which is currently pending on a writ of certiorari in the Supreme Court of the United States.
Appellate No. 19-373 involves a motion for authorization to file a successive § 2255 application for post-conviction relief nearly identical to Petitioner's motion. More specifically, Kareem Jahmal Horton, a federal prisoner tried and convicted in the Middle District of North Carolina, seeks permission to challenge his conviction and/or sentence under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) based, in part, on the holding in United States v. Gary. (See No. 1:08-cr-00480-WO-1, M.D. N.C. )
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; and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (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 any or all of these 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 Respondent 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 may only seek collateral review of his conviction and sentence through 28 U.S.C. § 2255. Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010). Once the prisoner has filed an unsuccessful § 2255 motion, as Petitioner has here, he may not pursue additional collateral review except under narrow circumstances. One such avenue is through the § 2255 savings clause, which allows the prisoner to file a § 2241 petition for a writ of habeas corpus if it “appears that the remedy by [a § 2255] motion is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). 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.” In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997).
The Fourth Circuit held in In re Jones, 226 F.3d 328 (4th Cir. 2000), that a petitioner must satisfy the following 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; see also Id. at 333 n.3 (explaining that this 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, has no source of redress”). 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., Wheeler, 886 F.3d at 426 (explaining that the savings clause requirements are jurisdictional and may not be waived); see also Rice, 617 F.3d at 807. In evaluating said elements, the court must “look to the substantive law of the circuit where a defendant was convicted.” Hahn v. Mosley, 931 F.3d 295, 301 (4th Cir. 2019). The applicable “procedural law, ” however, is that of the district court's home circuit. Id. Petitioner was convicted in the United States District Court for the District of South Carolina, so the undersigned considers the substantive law of the Fourth Circuit Court of Appeals in assessing his claims.
As noted above, Petitioner was tried and found guilty of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Section 922(g) provides that “it shall be unlawful for certain individuals to possess firearms. The provision lists nine categories of individuals subject to the prohibition, including felons. . . . A separate provision, § 924(a)(2), adds that anyone who knowingly violates the first provision shall be fined or imprisoned for up to 10 years.” Rehaif, 139 S.Ct. at 2194 (emphasis in original). The Rehaif Court concluded that the term “knowingly” as used in § 924(a)(2) applies both to the defendant's conduct (that he possessed a firearm) and to his status (as a felon, unlawful alien, or the like) for purposes of § 922(g). Id.
Because Petitioner was subject to the enhanced penalty provision of 18 U.S.C. § 924(e), he was ultimately sentenced to life imprisonment. (See Crim. No. 1321, Dkt. Nos. 70, 82.)
Thus, in a prosecution under 18 U.S.C. §§ 922(g) and 924(a)(2), Rehaif now requires that the Government prove the defendant knew he possessed a firearm and that he belonged to the relevant category of persons barred from possessing a firearm-in the instant case, felons. Id. at 2200. Based on this holding, Petitioner seems to argue that his conviction and sentence under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) are no longer valid because he did not have an opportunity to challenge the “prior conviction requirement” under § 922(g)(1), and the Government failed to establish all elements of the offense as “proscribed by Congress, ” such that he is “factually innocent.” (Dkt. No. 1 at 6-7.) The undersigned finds that Petitioner's arguments fail under both the Jones and Wheeler savings clause tests.
Because the petition does not clearly specify whether Petitioner intends to challenge his conviction or his sentence, the undersigned considers both categories under the savings clause in an abundance of caution and in light of Petitioner's pro se status.
I. Petitioner Cannot Satisfy the In re Jones Savings Clause Test
To the extent Petitioner challenges his conviction pursuant to Rehaif, the undersigned finds that Petitioner cannot satisfy the second prong of the In re Jones savings clause test. “A plain reading of the second prong identifies two elements to that prong: 1) the substantive law changed, and 2) the conduct of which the prisoner was convicted is no longer criminal. In other words, the change has to make ‘previously illegal conduct no longer a source of criminal liability.'” See Russaw v. Kellie, No. 4:19-cv-02127-MGL, 2020 WL 4381946, at *2 (D.S.C. July 31, 2020) (citing Hahn v. Moseley, 931 F.3d 295, 303 (4th Cir. 2019)). “Since Rehaif, several courts within the Fourth Circuit have held that Rehaif did not change substantive law because the conduct for which the petitioner was convicted is still illegal.” See Rozier v. Breckon, No. 7:19-cv-00545, 2020 WL 5790413, at *3 (W.D. Va. Sept. 28, 2020) (collecting cases); see also Asar v. Travis, No. 6:20-cv-00394-BHH, 2020 WL 3843638, at *2 (D.S.C. July 8, 2020) (considering § 922(g)(1) conviction by district court within Fourth Circuit and finding that “being a felon in possession of a firearm remains a valid criminal offense” even after Rehaif); appeal filed, No. 20-7299 (4th Cir. Aug. 31, 2020); Thompson v. Phelps, No. 8:20-cv-02716-RMG-JDA, 2020 WL 7344099, at *5 (D.S.C. Oct. 21, 2020), adopted, 2020 WL 7335899 (D.S.C. Dec. 14, 2020) (same); Sadler v. Bragg, No. 0:20-cv-0665-JFA-PJG, 2020 WL 6110989, at *4 (D.S.C. Oct. 16, 2020) (same); Thompson v. Hudgins, No. 5:20-cv-00078, 2021 WL 856736, at *4 (N.D. W.Va. Mar. 8, 2021) (same). Because being a felon in possession of a weapon remains a valid criminal offense, Petitioner cannot show that the crime of which he was convicted is no longer deemed to be criminal.
To be sure, the undersigned notes that, unlike in Rehaif, the parties in the instant case stipulated to Petitioner's status as a felon at trial. (Crim. No. 1321, Dkt. No. 44.) Indeed, Petitioner expressly acknowledged that he “could not lawfully possess a firearm” on the day in question, such that the Government was relieved of its obligation to prove the first element under § 922(g)(1). (Crim. No. 1321, Dkt. No. 44, Dkt. No. 63 at 6, 53.) See Christian Legal Soc'y Chapter of Univ. of Cal. v. Martinez, 561 U.S. 661, 667-78 (2010) (stating that factual stipulations “have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact”) (internal quotation marks and citations omitted). Accordingly, insofar as Petitioner challenges his conviction, the undersigned finds that Petitioner cannot satisfy the second element of the In re Jones savings clause test and the Court therefore lacks jurisdiction over his petition. See, e.g., Rainner v. Warden, FCI Bennettsville, No. 6:19-cv-02207-JMC, 2020 WL 5702103, at *3 (D.S.C. Sept. 24, 2020) (finding that § 2241 petition raising Rehaif claim could not meet the second prong of the In re Jones test or establish actual innocence where petitioner stipulated to being a felon for purposes of § 922(g)(1) at trial), appeal filed, No. 20-7511 (4th Cir. Oct. 14, 2020); see also Rice, 617 F.3d at 807 (explaining that § 2241 habeas petition must be dismissed for lack of jurisdiction where petitioner fails to satisfy each element of the In re Jones test).
For this same reason, Petitioner cannot save his petition simply by asserting that he is “factually innocent” of the offense at hand. Cognizable claims of “actual innocence” are rare and must be based on “factual innocence not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998); see also United States v. Pettiford, 612 F.3d 270, 282 (4th Cir. 2010) (noting that to succeed on actual innocence grounds a petitioner must show that he “did not commit the crime of which he was convicted; this standard is not satisfied by a showing that a petitioner is legally, but not factually, innocent”). In the present matter, Petitioner's actual innocence claim is facially inadequate because he has not “support[ed] his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Instead, Petitioner's claim seems to be premised entirely on the decision in Rehaif and the Government's alleged failure to prove the new knowledge-of-status element. (See Dkt. No. 1 at 7.) However, any such argument is fatally undermined by Petitioner's stipulation that, as a felon, he was prohibited from possessing a firearm. (Crim. No. 1321, Dkt. No. 44.) Thus, Petitioner cannot assert “actual innocence” to bypass the gatekeeping requirements of § 2255 and invoke the savings clause.
Although not binding precedent, the undersigned notes that this Court has reached the same conclusion in applying the In re Jones test to cases where the petitioner was tried and convicted outside of the Fourth Circuit and stipulated to being a felon at trial. See, e.g., Crawford v. Dobbs, No. 6:20-cv-00065-TMC, 2020 WL 8713673, at *3 (D.S.C. Feb. 4, 2021) (Northern District of Georgia); Fernandez v. Barnes, No. 4:20-cv-2256-DCC-TER, 2020 WL 8271637, at *4 (D.S.C. Sept. 21, 2020), adopted, 2021 WL 272207 (D.S.C. Jan. 27, 2021) (Southern District of Florida).
II. Plaintiff Cannot Satisfy the Wheeler Savings Clause Test
To the extent Petitioner challenges his sentence pursuant to Rehaif, the undersigned finds that his claim likewise fails, as Petitioner cannot satisfy the second prong of the Wheeler savings clause test. Indeed, district courts within the Fourth Circuit have consistently found that “Rehaif has not been held to be retroactive on collateral review.” Asar, 2020 WL 3843638, at *2; Rozier, 2020 WL 5790413, at *3 (same); Thompson, 2020 WL 7344099, at *5 (same); Miller v. Phelps, No. 6:20-cv-02423-BHH-KFM, 2020 WL 5868337, at *4 (D.S.C. Sept. 2, 2020), adopted, 2020 WL 5868296 (D.S.C. Oct. 1, 2020) (same); see also Waters v. United States, No. 4:15-cr-158, 2019 WL 3495998, at *5 (D.S.C. Aug. 1, 2019) (denying motion to appoint counsel to present a Rehaif claim in part because “there is no indication that the Supreme Court has made the holding in Rehaif retroactively applicable to invalidate an otherwise final conviction under § 922(g)”). Thus, Petitioner cannot show that there was a change in the substantive law of the sentencing court that was deemed to apply retroactively on collateral review. Because Petitioner must satisfy all four requirements under Wheeler in order to confer jurisdiction on the § 2241 court, he cannot use the savings clause to challenge his sentence here. See Wheeler, 886 F.3d at 426.
CONCLUSION
The undersigned therefore RECOMMENDS that the Court DISMISS the petition for lack of jurisdiction, without prejudice and without requiring Respondent to file a return.
The undersigned clarifies that while Petitioner may not use § 2241 to challenge his conviction and/or sentence under Rehaif, this ruling has no bearing on his motion for authorization to file a successive § 2255 claim pending before the Fourth Circuit. See Thompson, 2021 WL 856736, at *1 n.2 (dismissing § 2241 petition brought pursuant to Rehaif where petitioner also had-and continues to have-a motion to file a successive § 2255 claim pending before the Fourth Circuit in light of the holdings in both Rehaif and Gary).
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).