Opinion
2:23-cv-01436-TMC-MGB
03-05-2024
Stephen Telemaque, #06215-104, Petitioner, v. Warden Janson, Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Stephen Telemaque, 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.
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 Telemaque's underlying criminal case and subsequent habeas actions in reaching the recommendation herein.
Telemaque is an inmate at the Federal Correctional Institution, Edgefield (“FCI Edgefield”) in Edgefield, South Carolina. On August 14, 2015, Telemaque was charged in the United States District Court for the Southern District of Florida with conspiracy to possess with intent to distribute ethylone (Count 1); possession with intent to distribute ethylone (Counts 2 and 3); and assault on an officer of the United States (Counts 4 and 5). (See Crim. Case No. 1:15-cr-20531-WPD-1, Dkt. No. 24.) On October 14, 2015, Telemaque pleaded guilty to Count 1 pursuant to a negotiated plea agreement and was sentenced to 180 months in prison. (Crim. Case No. 1520531, Dkt. Nos. 39, 76, 83.) The United States Court of Appeals for the Eleventh Circuit affirmed Telemaque's conviction and sentence on July 11, 2017. United States v. Telemaque, 702 Fed.Appx. 824 (11th Cir. 2017). (See also Crim. Case No. 15-20531, Dkt. No. 116.)
A. First § 2255 Motion (Case No. 18-23516)
On August 28, 2018, Telemaque filed his first motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel. (Case No. 1:18-cv-23516-UU, Dkt. No. 1.) On October 5, 2018, the assigned United States Magistrate Judge issued a report recommending that Telemaque's claims be denied on the merits, and the United States District Judge adopted the report on October 26, 2018. (Case No. 18-23516, Dkt. Nos. 7, 9.) Telemaque then filed a notice of appeal on November 9, 2018, which was dismissed for lack of jurisdiction on or around October 25, 2019. (App. Case No. 18-14757-EE; see also Case No. 18-23516, Dkt. Nos. 9, 18.)
B. Rule 60(b) Motion (Case No. 18-23516)
On December 18, 2018, Telemaque filed a “Motion for Relief Under Rule 60(b)” in Case No. 18-23516, arguing that his conviction was invalid in light of the decision in United States v. Phifer, 909 F.3d 372 (11th Cir. 2018). (Case No. 18-23156, Dkt. No. 27.) Like Telemaque, the defendant in Phifer was charged with possession with intent to distribute ethylone in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). However, “ethylone only constitutes a controlled substance if [it] is a ‘positional isomer' of butylone.” Phifer, 909 F.3d at 375. Thus, Phifer argued at trial, albeit unsuccessfully, that ethylone was not a controlled substance for purposes of the Controlled Substances Act, 21 U.S.C. §§ 801-971 (“CSA” or the “Act”), because it was not a “positional isomer” of butylone. Id. at 379. On appeal, Phifer urged the Eleventh Circuit to apply the “scientific term of art” to define “positional isomer,” rather than the Drug Enforcement Administration's (“DEA”) regulatory definition upon which the district court relied in convicting him. Id. at 375. The Eleventh Circuit ultimately concluded that the regulations promulgated by the DEA did not clearly indicate that ethylone constituted a positional isomer of butylone and, consequently, “the court must ascertain the meaning of this technical term by looking to the science in which the term is used.” Id. at 385. The Eleventh Circuit then vacated Phifer's conviction and ordered a new trial, instructing the district court to conduct an evidentiary hearing (“essentially a modified Daubert hearing”) to “determine what definition or definitions of ‘positional isomer' are generally accepted within the scientific community.” Id. at 385-86. The Eleventh Circuit clarified that it would be “for the jury to decide whether, as a matter of fact, ethylone satisfies all of the generally accepted definitions of a ‘positional isomer' of butylone, on which the district court instructs it.” Id. at 386.
Upon reviewing Telemaque's Phifer claim, the district court found that his motion raised “a new substantive challenge” to his conviction and sentence and, thus, did not fall within the purview of Rule 60(b). (Case No. 18-23156, Dkt. No. 32 at 3.) As such, the district court concluded that the motion constituted an impermissible successive § 2255 motion and dismissed the same for lack of jurisdiction on January 29, 2019. (Id. at 3-4.) Notwithstanding this decision, the district court noted that, even if Telemaque's motion could be construed as a valid Rule 60(b) motion, it would still be subject to dismissal:
The district court explained that although a Rule 60(b) motion can be used to present a defect in the integrity of a prior federal habeas proceeding, such a motion is considered a second or successive § 2255 petition if it seeks to present a new ground for relief from a judgment of conviction or attacks the federal court's previous resolution of a claim on the merits. (Case No. 18-23516, Dkt. No. 32 at 4.)
Phifer is inapposite to Telemaque's case. Under Phifer, the definition of “positional isomer” presents a question of law for the Court to decide, 909 F.3d at 385, but the determination of whether butylone and ethylone satisfy the “positional isomer” definition (once the court determines what that definition should be) would be a
question for the jury, see id. at 381 (including the definition of “positional isomer” in jury instructions). Here, unlike in Phifer, Telemaque stipulated in his Factual Proffer that the Government would have proven beyond a reasonable doubt that ethylone was a Schedule I controlled substance. Implicit in that stipulation is Telemaque's concession that ethylone is a positional isomer of butylone, regardless of the legal definition used.(Id. at 4 n.4.) Telemaque filed an appeal on February 11, 2019, which the Eleventh Circuit dismissed on March 25, 2019, for failure to prosecute. (App. Case No. 19-10593-E; see also Case No. 18-23516, Dkt. No. 39.)
C. Second § 2255 Motion (Case No. 19-22027)
On May 20, 2019, Telemaque filed a second motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging that his conviction was invalid based on the Eleventh Circuit's holding in Phifer. (Case No. 1:19-cv-22027-UU, Dkt. No. 1.) More specifically, Telemaque argued that, “at the time of [his] indictment, ethylone was not a controlled substance,” meaning “[his] offense was not against the law” and he was “actually innocent of committing any offense.” (Id. at 4.) On August 8, 2019, the assigned United States Magistrate Judge issued a report recommending that Telemaque's § 2255 motion be dismissed because the district court lacked jurisdiction over a successive § 2255 motion “without prior authorization from the respective Circuit Court of Appeals.” (See Case No. 19-22027, Dkt. No. 6 at 4.) The United States District Judge adopted the report on September 7, 2019, reiterating that Telemaque had filed an unauthorized successive § 2255 motion. (Case No. 19-22027, Dkt. No. 7 at 1.)
D. First Application to File a Successive § 2255 Motion (App. Case. No. 19-12444)
On June 27, 2019, Telemaque filed an application for leave to file a second or successive motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255(h) with the Eleventh Circuit. (App. Case No. 19-12444-E, Dkt. No. 1.) In the application, Telemaque suggested that Phifer constituted “newly discovered evidence” that “revealed that [he] was ‘actually innocent' of distributing a controlled substance because ethylone is not a ‘positional isomer' of butylone and therefore was not banned under the CSA.” (Id. at 3.) The Eleventh Circuit denied the application on July 19, 2019, finding that Telemaque had failed to satisfy the criteria for a successive motion as set forth in 28 U.S.C. § 2255(h), which states that a second or successive motion must be certified by a panel of the appropriate court of appeals to contain:
(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.28 U.S.C. § 2255(h).
With respect to § 2255(h)(1), the Eleventh Circuit found that Telemaque “incorrectly characterize[] the caselaw as ‘newly discovered evidence' because Phifer [did] not establish by clear and convincing evidence that no reasonable factfinder would have found [Telemaque] guilty of the offense.” (App. Case No. 19-12444, Dkt. No 2-1 at 2.) With respect to § 2255(h)(2), the Eleventh Circuit found that Telemaque could not rely on Phifer as a new rule of constitutional law, “as it [was] not a Supreme Court decision.” (Id.) In any event, the Eleventh Circuit noted that,
contrary to Telemaque's argument, Phifer did not hold that ethylone was not a controlled substance based on the DEA's definition, but rather, it held that the regulation governing the definition was ambiguous and remanded to the district court for a determination of the generally accepted definition of a positional isomer.(Id.) Accordingly, the crux of Telemaque's argument-that ethylone was not a positional isomer of butylone-misinterpreted the holding in Phifer and did not justify further collateral review.
E. Second Application to File a Successive § 2255 Motion (App. Case. No. 19-13490)
On September 9, 2019, Telemaque filed another application for leave to file a second or successive motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255(h), renewing his argument that “newly discovered evidence, specifically, that ethylone is not a positional isomer of butylone and hence was not banned under the CSA, has come to light. As a result, [Telemaque] stands convicted of a non-offense.” (App. Case. No. 19-13490, Dkt. No. 1 at 4.) The Eleventh Circuit swifty denied the application on September 30, 2019, stating that Telemaque simply repackaged “the same argument [ ] that he did in his prior application, that he is actually innocent because ethylone is a not positional isomer of butylone,” (App. Case. No. 1913490, Dkt. No. 2-2 at 3.)
F. Third § 2255 Motion (Case No. 22-24221)
On December 27, 2022, Telemaque filed yet another motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, claiming that the district court lacked subject matter jurisdiction over his original criminal proceedings. (Case No. 1:22-cv-24221-WPD, Dkt. No. 1 at 4.) Telemaque argued that, in light of the Eleventh Circuit's holding in Phifer, only one of two scenarios could be true: either “(1) the District Court determined that ‘Ethylone' was not a controlled substance under the Law at the time of [Telemaque's] crime, [and] thus the Court lacked subject matter jurisdiction or (2) the question of whether [Telemaque] committed a crime was left open and thus the Court's subject matter jurisdiction was not established.” (Case No. 22-24221, Dkt. No. 1-1 at 3.) The district court dismissed Telemaque's motion on January 3, 2023, explaining that he had once again failed to obtain the requisite authorization from the Eleventh Circuit to bring a successive § 2255 motion. (Case No. 22-24221, Dkt. No. 5 at 4.)
G. Third Application to File a Successive § 2255 Motion (App. Case. No. 23-10302)
On January 31, 2023, Telemaque filed his third application for leave to file a second or successive motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255(h). (App. Case No. 23-10302-D, Dkt. No. 1.) Specifically, Telemaque reasserted that he was being “imprisoned for conduct that was not a crime” under the holding in Phifer, and that, at the very least, Phifer “raised serious questions as to the district court's power to act and impose judgment in [his] case.” (Id. at 11.) The Eleventh Circuit denied Telemaque's request on February 3, 2023, finding that while he had framed his argument in “jurisdictional terms,” the “basic thrust of his claim [was] the same” as those rejected in his previous filings-that “he [was] actually innocent, or likely actually innocent, under Phifer .” (App. Case No. 23-10302, Dkt. No. 2-2 at 3.) Accordingly, Telemaque had failed to meet the criteria for a successive § 2255 motion.
H. Instant § 2241 Petition (Case No. 23-1436)
It is against this extensive procedural background that Telemaque now brings the instant 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. (Case No. 2:23-cv-1436-TMC-MGB, Dkt. No. 1.) With respect to his first ground for relief, Telemaque once again contends that “pursuant to subsequent changes in circuit law, [he] is actually innocent of the alleged criminal conduct.” (Id. at 6.) In support, Telemaque renews his claim that Phifer “established that [his] conduct of possessing or distributing Ethylone was not a crime . . . because at the time of the offense Ethylone was not listed as a controlled substance under federal law.” (Case No. 23-1436, Dkt. No. 1-2 at 18.) With respect to his second ground for relief, Telemaque maintains that the sentencing court “lacked subject matter jurisdiction to impose [his] judgment and sentence” because his conduct was not a crime under Phifer. (Case No. 23-1436, Dkt. No. 1 at 7; Dkt. No. 1-2 at 18.) Based on the above, Telemaque asks that the Court vacate his conviction for conspiracy to possess with intent to distribute ethylone. (Case No. 23-1436, Dkt. No. 1 at 8.)
STANDARD OF REVIEW
Under the established local procedure in this judicial district, a careful review has been made of Telemaque'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 Telemaque 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 Telemaque 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 Telemaque has done 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.
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. Because the savings clause requirements are jurisdictional, the court cannot entertain a petition that does not satisfy each of the aforementioned elements. See Rice, 617 F.3d at 807. In evaluating the 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). Telemaque was convicted in the United States District Court for the Southern District of Florida, so the undersigned considers the substantive law of the Eleventh Circuit Court of Appeals in assessing his claims. Unfortunately, Telemaque's petition merely repackages the same Phifer claims already rejected by the Eleventh Circuit in his previous filings and asks this Court to reach a different conclusion under the savings clause-which it cannot do.
The applicable “procedural law” is that of the district court's home circuit. Hahn v. Mosley, 931 F.3d 295, 301 (4th Cir. 2019).
Indeed, as noted above, the petition once again challenges Telemaque's conviction on the grounds that he is actually innocent of a crime because, under the holding in Phifer, ethylone is not a positional isomer of butylone and, thus, does not constitute a controlled substance for purposes of 21 U.S.C. § 846. (Case No. 23-1436, Dkt. No. 1-1 at 18-20.) Telemaque further reiterates that, without a valid crime, the sentencing court lacked subject matter jurisdiction over his charge. (Id. at 21-24.) In short, Telemaque's claims rest entirely on the second prong under In re Jones.
Contrary to Telemaque's contentions, however, Phifer did not decriminalize his conduct as he suggests; rather, it “identified a regulatory ambiguity requiring expert testimony in the case before it in order to lay a foundation for a legal determination (which was never reached).” See Tooks v. Dix, No. 3:21-cv-925-LC-MJF, 2022 WL 485227, at *3 (N.D. Fla. Feb. 17, 2022) (holding that “the Eleventh Circuit did not conclude that possession of ethylone is not criminal conduct under the Controlled Substances Act, nor did it declare that the statute is ambiguous or that ethylone is not a ‘positional isomer'”); see also Reason v. United States, No. 16-14002-CR, 2020 WL 8265798, at *5 (S.D. Fla. Oct. 29, 2020) (rejecting actual innocence claim because Phifer did not invalidate the DEA's regulation; it merely “resolve[d] a procedural question”), adopted, No. 2:16-CR-14002, 2021 WL 256376 (S.D. Fla. Jan. 26, 2021). To be sure, the Eleventh Circuit emphasized this very point in denying Telemaque's first application for leave to file a successive § 2255 motion, explaining that “Phifer did not hold that ethylone was not a controlled substance.” (App. Case No. 19-12444, Dkt. No 2-1 at 2.)
Consequently, Telemaque plainly cannot satisfy the second prong of the In re Jones test, as there is no indication that Phifer changed the substantive law such that his conduct is no longer deemed to be criminal in the Eleventh Circuit. See Tooks, 2022 WL 485227, at *3 n.6 (noting that there is no indication that any district courts within the Eleventh Circuit have granted habeas relief “on the basis of Phifer or a finding that ethylone has been decriminalized”). Because a petitioner must satisfy all three requirements under In re Jones to confer jurisdiction on the § 2241 court, Telemaque cannot use the savings clause to challenge his conviction here. 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
Based on the above, the undersigned RECOMMENDS that the Court DISMISS Telemaque's petition (Dkt. No. 1) 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).