Opinion
C/A No. 0:20-680-HMH-PJG
03-30-2020
Anthony Thomas, Petitioner, v. Bryan K. Dobbs, Warden, Respondent.
REPORT AND RECOMMENDATION
Petitioner Anthony Thomas, a self-represented federal prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.). Having reviewed the Petition in accordance with applicable law, the court concludes that it should be summarily dismissed.
I. Factual and Procedural Background
Petitioner is an inmate in the Federal Correctional Institution in Williamsburg, South Carolina. (Pet., ECF No. 1 at 1.) Petitioner indicates that in 2017 he pled guilty in the United States District Court for the Eastern District of Tennessee to possession of ammunition by a felon in violation of 18 U.S.C. § 922(g). (Id.) Petitioner did not file a direct appeal or motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255.
United States v. Thomas, Cr. No. 1:16-cr-00047-TRM-CHS-1.
Petitioner now files this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, asking that his conviction be vacated. (Id. at 10.) Petitioner argues that in light of the United States Supreme Court's recent decision in Rehaif v. United States, his conviction should be vacated because the Government failed to provide the plea court with his prior court records to establish that Petitioner knew he possessed a firearm and that he knew he was a felon. (Id. at 7.) Additionally, Petitioner argues that his conviction should be vacated because he was indicted for possession of a firearm but convicted of possession of ammunition. (Id. at 9.)
139 S. Ct. 2191 (2019) (holding that in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove the defendant knew he possessed a firearm and that the defendant knew he belonged to the relevant category of persons barred from possessing a firearm).
The plea court's records reflect that Petitioner was indicted for possession of ammunition. The court may take judicial notice of Petitioner's plea court records. Fusaro v. Cogan, 930 F.3d 241 n.1 (4th Cir. 2019); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239-40 (4th Cir. 1989).
II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in this case pursuant to the Rules Governing § 2254 Cases, 28 U.S.C. § 2254; the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214; 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) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
This court is required to liberally construe pro se pleadings, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, 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 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for "all civil actions").
B. Analysis
A petitioner cannot challenge his federal conviction and sentence through § 2241 unless he can show under the "savings clause" of § 2255(e) that a § 2255 motion is "inadequate or ineffective to test the legality of his detention." See 28 U.S.C. § 2255(e); see also Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (providing that if a federal prisoner brings a § 2241 petition that does not fall within the scope of the savings clause, the district court must dismiss the unauthorized habeas petition for lack of jurisdiction). The United States Court of Appeals for the Fourth Circuit has held that a petitioner must establish the following criteria to demonstrate that a § 2255 motion is inadequate or ineffective to test the legality of a prisoner's 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.United States v. Wheeler, 886 F.3d 415, 427 (4th Cir. 2018) (quoting In re Jones, 226 F.3d 328, 333-34 (2000)).
Here, Petitioner does not rely on a substantive change in the law that renders Petitioner's conduct not criminal; therefore, he cannot satisfy the second element of the Fourth Circuit's test. Petitioner points to the Supreme Court's decision in Rehaif as substantive change in the law. But Rehaif clarified only the elements the Government would have had to prove at trial, had Petitioner exercised his right to a trial. See Rehaif, 139 S. Ct. at 220 (stating that in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2) "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."). But Petitioner pled guilty, and Petitioner does not argue that he did not in fact know he was felon. Instead, he argues that his indictment did not include language indicating that he knew he was a felon.
Petitioner also argues the indictment did not allege that Petitioner knew he could not possess a firearm as a felon. However, the Rehaif Court rejected that interpretation. Rehaif, 139 S. Ct. at 2198 (differentiating between Rehaif's defense—that the Government had to prove the defendant's intent to as to each element of the crime, and a "mistake of law" defense—that the defendant was unaware of a statute proscribing his conduct).
Moreover, Rehaif did not retroactively deem the conduct to which Petitioner pled guilty—possession of a firearm while a felon—to be non-criminal conduct. See, e.g., Hughes v. Mackelburg, C/A No. 8:19-03390-HMH-JDA, at *2 (D.S.C. Mar. 24, 2020) (rejecting a § 2241 petition based on Rehaif, noting that the petitioner, who pled guilty, was required to show "the conduct of which [he] was convicted be 'deemed not to be criminal' ") (quoting In re Jones, 226 F.3d at 334); Hoffman v. Breckon, Civil Action 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). Accordingly, Petitioner cannot meet the savings clause of § 2255(e) by raising this claim based on the Supreme Court's decision in Rehaif. Therefore, this case should be dismissed because this court lacks jurisdiction over the Petition. See Wheeler, 886 F.3d at 426 (holding that the failure to meet the requirements of the savings clause is a jurisdictional defect that may not be waived).
III. Conclusion
Accordingly, the court recommends that the Petition in the above-captioned case be dismissed without prejudice and without requiring the respondent to file a return. March 30, 2020
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' 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
901 Richland Street
Columbia, South Carolina 29201
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).