Opinion
C. A. 6:21-cv-00142-SAL-KFM
03-12-2021
James William Snoke, Petitioner, v. Bryan Dobbs, Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
The petitioner, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2241 for habeas relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil 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.
The petitioner's § 2241 petition was entered on the docket on January 13, 2021 (doc. 1). By order issued on February 5, 2021, the petitioner was informed that his case was not in proper form for judicial screening (doc. 5). The petitioner complied with the Court's Order, bringing his case into proper form for judicial screening. Nevertheless, for the reasons set forth below, it is recommended that the petitioner's § 2241 petition be dismissed without prejudice and without requiring the respondent to file an answer or return.
BACKGROUND
Petitioner's Conviction and Sentence
On May 30, 2012, the petitioner pled guilty in the United States District Court for the District of Rhode Island to Count 1 of an Indictment charging him with bank robbery, in violation of 18 U.S.C. § 2113. See United States v. Snoke, C/A No. 1:12-cr-00006 WES-LDA-1 (D.R.I.). On March 18, 2013, the Honorable William E. Smith, United States District Judge, sentenced the petitioner to a term of 151 months' imprisonment followed by one year of supervised release, a special assessment of $100.00, and restitution in the amount of $2,365.00. Id. at doc. 26. The sentence was to run consecutive to a sentence the petitioner was serving for a supervised release violation in Case Number 1:04-cr-00067-WES-LDA-1. Id. The petitioner did not appeal his conviction or sentence.
The court takes judicial notice of the records in the petitioner's criminal case in the District of Rhode Island at case number 1:12-cr-00006-WES-LDA-1 as well as collateral attacks on his sentence made in the sentencing court. See Phillips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts “may properly take judicial notice of matters of public record.”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”)
Since April of 2020, the petitioner, through counsel, has sought compassionate relief release; however, his request was denied, as was a request for reconsideration. Id. at docs. 55; 58; 61.
Petitioner's § 2255 Motions
The petitioner has filed two § 2255 motions. The first, filed on June 20, 2016, was amended by counsel on June 24, 2016. Id. at docs. 30; 32. The motions argued that the petitioner's sentence was unlawful based upon Johnson v. United States, 576 U.S. 591 (2016). Id. at docs. 30; 32. The motions were held in abeyance because the applicability of Johnson to the petitioner's case was unclear. Id. at doc. 34. The petitioner's motions were voluntarily dismissed on March 17, 2017. Id. at doc. 38.
The petitioner then filed a motion on June 30, 2017, entitled “motion to request correction of error.” Id. at doc. 39. The Court provided notice to the petitioner that his motion would be construed as his first § 2255 motion unless the petitioner notified the Court otherwise. Id. at doc. 41. In response, the petitioner filed an amended motion to vacate under § 2255. Id. at doc. 44. In the amended motion, the petitioner again raised a Johnson claim and also asserted that two of his predicate offenses for second degree robbery in Rhode Island, no longer counted as predicate offenses, citing United States v. Young, 221 F.Supp.3d 244 (D.R.I. 2016). Id. The motion was denied on the merits as. untimely on December 11, 2017. Id. at doc. 48. The petitioner appealed, but the appeal was terminated because he could not meet the standard for a certificate of appealability. Id. at doc. 52; see Snoke v. United States, C/A No. 18-1028 (1st Cir. June 8, 2018).
Petitioner's Present Action
The petitioner now seeks habeas relief pursuant to 28 U.S.C. § 2241, claiming that his sentence is unconstitutional based upon Johnson and Young (doc. 1). For relief, the petitioner seeks to be re-sentenced without the career offender enhancement, and an order that he be immediately released (id. at 7).
STANDARD OF REVIEW
The undersigned has reviewed the 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”), Pub. L. No. 104-132, 110 Stat. 1214; and other habeas corpus statutes. As a pro se litigant, the petitioner's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The mandated liberal construction means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. However, the requirement of liberal construction does not mean that the Court can 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, 391 (4th Cir. 1990).
DISCUSSION
The petitioner filed this action pursuant to 28 U.S.C. § 2241 (doc. 1). Because the petitioner is incarcerated in the District of South Carolina and he names the warden of FCI Williamsburg as the respondent, his § 2241 petition is properly filed in this Court. Liberally construing the petitioner's allegations, the petitioner seeks to utilize the § 2255 savings clause test in order to attack the validity of his federal sentence in light of Johnson and Young via the present § 2241 action (doc. 1). As set forth in more detail below, the petition should be dismissed without prejudice and without requiring the respondent to file an answer or return.
As affirmed in Wheeler, the § 2255 savings clause test is jurisdictional. United States v. Wheeler, 886 F.3d 415, 426 (4th Cir. 2018). The court may sua sponte raise subject matter jurisdiction, and the Court of Appeals has held that if a petitioner cannot meet the savings clause requirements, then the § 2241 petition “must be dismissed for lack of jurisdiction.” Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010). Because the § 2255 savings clause is a jurisdictional requirement, an analysis of whether the petitioner meets the savings clause test is appropriate for initial review under § 1915.
Unlike a § 2255 motion, which is filed in the trial and sentencing court, a § 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). “Generally, a § 2241 petition ‘attacks the execution of a sentence rather than its validity,' whereas a § 2255 motion ‘attacks the legality of detention.'” Rice v. Lamanna, 451 F.Supp.2d 755, 758 (D.S.C. 2006) (quoting Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)); see United States v. Miller, 871 F.2d 488, 489-90 (4th Cir. 1989) (distinguishing between attacks to the “computation and execution of the sentence rather than the sentence itself”). Thus, “defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255.” Rice v. Rivera, 617 F.3d at 807 (citing In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997)). However, § 2255 includes a savings clause, which permits a district court to consider a § 2241 petition challenging the validity of the prisoner's conviction or sentence when § 2255 is “inadequate or ineffective to test the legality of . . . detention.” 20 U.S.C. § 2255(e); Jones, 226 F.3d at 333. Accordingly, the petitioner cannot challenge his federal conviction and sentence under § 2241, unless he can satisfy the requirements of 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). In other words, as applied here, the petitioner's § 2241 action is barred unless he can demonstrate that the relief available to him under § 2255 is inadequate or ineffective. Here the petitioner was unsuccessful in seeking relief under § 2255 in the sentencing court. Nevertheless, “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).
To trigger the “savings clause” of § 2255(e) and proceed under § 2241, the petitioner must meet the savings clause test as contemplated in United States v. Wheeler, 886 F.3d 415 (challenges to sentences) or In re Jones, 226 F.3d 328 (challenges to convictions).
Recently, the Court of Appeals established a test for evaluating whether a petitioner may meet the savings clause under § 2255 when he contests his sentence:
[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.Wheeler, 886 F.3d at 429 (citations omitted).
The petitioner, in the present matter, argues that his sentence is unconstitutional because of Johnson and Young (doc. 1). The petitioner, however, cannot meet the second Wheeler factor: that “subsequent to [his] direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review.” Wheeler, 886 F.3d at 429.
The petitioner did not appeal his conviction or sentence. Thus, important to the Wheeler analysis in the instant action is the timing of the petitioner's first § 2255 motion. As noted above, the petitioner has filed two § 2255 motions: the first was voluntarily dismissed and the second was adjudicated on the merits as untimely. See United States v. Snoke, C/A No. 1:12-cr-00006-WES-LDA-1, at docs. 30; 32; 38; 39; 44; 48. The undersigned finds that the petitioner's second § 2255 motion, filed on June 30, 2017, acts as his “first” for purposes of Wheeler because it was denied on the merits as untimely on December 11, 2017, after the petitioner's prior § 2255 motion was voluntarily dismissed.
Johnson was decided on June 26, 2015, and was recognized as retroactive on collateral review in Welch, which was decided on April 18, 2016. See Welch v. United States, 136 S.Ct. 1257 (2016); Johnson, 576 U.S. 591. Young was decided on November 2, 2016, but to date has not been considered retroactive on collateral review. Young, 221 F.Supp.3d 244. In light of the foregoing, the petitioner cannot meet the second prong of Wheeler, because he has not shown that subsequent to his first § 2255 motion (2017) the substantive law changed and was deemed to apply retroactively on collateral review. Further, the claims in this action are nearly identical to those in the petitioner's August 1, 2017, § 2255 motion - that he should be re-sentenced in light of Johnson and Young. Thus, here, the “petitioner is trying to take yet another ‘bite at the apple.' However, the petitioner has already had his one ‘bite at the apple.'” White v. Rivera, C/A No. 3:08-cv-3681-PMD-JRM, 2009 WL 1456712, at *8 (D.S.C. May 21, 2009) (citing In re Goddard, 170 F.3d 435 (4th Cir. 1999) (noting that normally a federal criminal defendant, after a conviction, may pursue a direct appeal and thereafter “take ‘one further bite at the apple' in a § 2255 motion”)). Accordingly, the petitioner has failed to satisfy the elements of the Wheeler test to invoke the savings clause of § 2255 and challenge his sentence. Accordingly, the petitioner's § 2241 petition should be dismissed because the savings clause contained in § 2255 does not permit him to bring this § 2241 action.
RECOMMENDATION
Accordingly, it is recommended that the petitioner's § 2241 petition be dismissed without requiring the respondent to file a return. The petitioner's attention is directed to the important notice on the next page.
The petitioner cannot cure the deficiencies noted herein relative to the § 2255 savings clause, however, dismissal without prejudice is recommended because the Court of Appeals has held that dismissals for lack of subject-matter jurisdiction must be without prejudice. S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013).
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 300 East Washington Street, Room 239 Greenville, South Carolina 29601
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).