Opinion
C/A 1:19-2135-BHH-SVH
09-18-2019
Robert Tolbert, Petitioner, v. Warden of FCI Estill, Respondent.
REPORT AND RECOMMENDATION
SHIVA V. HODGES UNITED STATES MAGISTRATE JUDGE
Robert Tolbert (“Petitioner”), proceeding pro se, is an inmate at Federal Correctional Institution Estill, in the custody of the Bureau of Prisons. He filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. 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 judge. For the following reasons, the undersigned recommends the district judge dismiss the petition in this case without requiring the respondent to file an answer.
I. Factual and Procedural Background
On February 24, 2014, Petitioner pled guilty to one count of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) in the United States District Court for the Middle District of Pennsylvania (“Sentencing Court”). See ECF No. 126, United States v. Tolbert, Crim. No. 3:14-19-ARC-1 (M.D. Pa. 2014) (“Sentencing Docket”). On June 24, 2014, pursuant to a written plea agreement, the Sentencing Court sentenced Petitioner to 151 months' imprisonment. See ECF Nos. 122, 134, Sentencing Docket. Petitioner alleges his sentence included a two-level career offender enhancement under United States Sentencing Guidelines § 4B1.1. [ECF No. 1-2 at 4]. Petitioner did not challenge his conviction or sentence through a direct appeal or motion under 28 U.S.C. § 2255.
The court takes judicial notice of Petitioner's prior cases. See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“The most frequent use of judicial notice of ascertainable facts is in noticing the content of court records.”) (citation omitted).
Petitioner asserts he is actually innocent of his career offender enhancement in light of Mathis v. United States, 136 S.Ct. 2243 (2016), and seeks resentencing.
II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of this petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, and other habeas corpus statutes. Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dept of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
B. Analysis
“[I]t 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)). In contrast, a petition filed under § 2241 is typically used to challenge the manner in which a sentence is executed. See In re Vial, 115 F.3d at 1194 n.5. A 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 Rice, 617 F.3d at 807 (finding courts lack jurisdiction over § 2241 petition outside savings clause).
In the Fourth Circuit, § 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.U.S. v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018).
The undersigned finds this court lacks jurisdiction to consider Petitioner's § 2241 petition, as he cannot show that § 2255 is inadequate to test the legality of his sentence. Petitioner challenges his career offender status in light of Mathis, 136 S.Ct. 2243 (2016) (clarifying application of the categorical approach to predicate offenses under the Armed Career Criminal Act (“ACCA”)), United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016) (finding defendant's prior Texas conviction for delivery of heroin did not qualify as controlled substance offense under the career offender enhancement), and Holt v. United States, 843 F.3d 720 (7th Cir. 2016) (finding Mathis is a substantive decision that presumptively applies retroactively, but is a statutory, not constitutional, change in the law).
Petitioner's reliance on Hinkle and Holt is misplaced. In reviewing § 2241 petitions, the court must apply the substantive law “of the circuit where a defendant was convicted.” Hahn v. Moseley, 931 F.3d 295, 301 (4th Cir. 2019). Because Petitioner was convicted and sentenced in the Middle District of Pennsylvania, Third Circuit substantive law applies.
The Third Circuit has not deemed Mathis retroactive on collateral review, except “[w]hen a defendant's second or successive § 2255 motion recites a Johnson claim that satisfies § 2255(h)'s gatekeeping requirements.” United States v. Peppers, 899 F.3d 211, 229-30 (3d Cir. 2018); see also Keys v. Young, C/A No. 18-3044-RMB, 2018 WL 5984159, at *5 (D.N.J. Nov. 13, 2018) (“The Supreme Court has never held that Mathis applies retroactively on collateral review, nor do any combination of Supreme Court precedents dictate retroactivity.”). Like Mathis, Johnson addressed sentence enhancements under the ACCA. See Johnson, 135 S.Ct. at 2563 (holding imposing an increased sentence under the residual clause of the ACCA violates due process). Petitioner was not sentenced under the ACCA and has not advanced a Johnson claim. Further, Petitioner fails to cite law from either the Supreme Court or the Third Circuit suggesting how the Court's holding in Mathis would impact his guidelines-based sentence enhancement.
Johnson v. U.S., 135 S.Ct. 2551 (2015).
Accordingly, Petitioner in unable to meet the § 2255 savings clause requirements and this court lacks jurisdiction to consider the petition.
III. Conclusion and Recommendation
For these reasons, the undersigned recommends the court dismiss the petition in the above-captioned case without prejudice and without requiring the respondent to file a return.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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).