Opinion
C. A. 0:21-150-BHH-PJG
05-07-2021
Jessie Traylor, Petitioner, v. Stevie Knight, Warden; Melissa Forsyth, Camp Administrator, Respondents.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
Petitioner Jessie Traylor, a self-represented federal prisoner, filed this habeas corpus action pursuant to 28 U.S.C. § 2241. This matter is before the court pursuant to 28 U.S.C. § 636 and Local Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Respondents' motion to dismiss. (ECF No. 10.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondents' motion. (ECF No. 11.) Petitioner filed a response in opposition. (ECF No. 14.) Having carefully considered the parties' submissions and the record in this case, the court concludes Respondents' motion should be granted.
BACKGROUND
The following allegations are taken as true for purposes of resolving Respondents' motion to dismiss. Petitioner was convicted in the United States District Court for the Central District of Illinois of conspiracy to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A) and other drug charges. United States v. Taylor, Cr. No. 2:08-cr-20036. (C.D. Ill.). At that time, a person convicted of distribution of five kilograms or more of cocaine after two or more prior convictions for a felony drug offense had become final was subject to a mandatory term of life imprisonment without release. 21 U.S.C. § 841(b)(1)(A) (eff. Apr. 15, 2009 to Aug. 2, 2010). Petitioner had two such prior convictions-a 1999 Illinois conviction for unlawful possession of a controlled substance near a school and a 2006 Illinois conviction for possession of cocaine. Accordingly, the court sentenced Petitioner to life imprisonment on the conspiracy to distribute charge. For the other charges, Petitioner was sentenced to one term of thirty years' imprisonment and two terms of four years' imprisonment.
The United States Court of Appeals for the Seventh Circuit affirmed Petitioner's convictions and sentences. United States v. Traylor, 405 Fed.Appx. 73 (7th Cir. 2011). Petitioner then filed a motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255 that was denied by the sentencing court. However, on January 17, 2017, the President of the United States commuted Petitioner's total sentence to a term of240 months' imprisonment. Traylor, 2:08-cr-20036 (C.D. Ill. Dkt. No. 147.) Subsequently, Petitioner filed a motion for home confinement and a motion for compassionate release that were denied by the sentencing court.
Petitioner now files this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 pursuant to United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018). Petitioner argues that his sentence should be vacated because one of his Illinois convictions used to enhance his sentence under 21 U.S.C. § 841 no longer qualifies as a predicate offense in the Seventh Circuit. See United States v. De La Torre, 940 F.3d 938, 949 (7th Cir. 2019) (finding that use of an Illinois conviction for felony unlawful possession of a controlled substance to enhance a § 841 sentence affected De La Torre's substantial rights and required the plea agreement be set aside). Therefore, Petitioner argues, his sentence was unlawfully enhanced to life imprisonment under the former § 841(b)(1)(A) and he should be resentenced in light of this change in controlling law.
DISCUSSION
The Federal Rules of Civil Procedure apply to petitions for a writ of habeas corpus to the extent the rules are not contradicted by federal statute or previous practice in habeas proceedings. Fed.R.Civ.P. 81(a)(4).
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the petition. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A petition “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). When considering a motion to dismiss, the court must accept as true all of the factual allegations contained in the petition. Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court may also consider documents attached to the petition, see Fed.R.Civ.P. 10(c), or to the motion to dismiss, if they are integral to the petition and authentic. Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citing Blankenship v. Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006)).
Further, while the federal court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson, 551 U.S. 89, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Respondents' Motion to Dismiss
Respondents argue the presidential commutation of Petitioner's sentence renders this action moot under Fourth Circuit precedent. The court agrees.
In United States v. Surratt, the United States Court of Appeals for the Fourth Circuit, sitting en banc, held that the President's commutation of a federal prisoner's mandatory life sentence rendered moot the prisoner's appeal in an action challenging his original mandatory life sentence. 855 F.3d 218 (4th Cir. 2017). The Fourth Circuit dismissed Surratt's appeal by published order of Chief Judge Roger L. Gregory but the order did not include a written, legal explanation as to why the appeal was moot. Writing in concurrence, Judge J. Harvie Wilkinson, III stated that Surratt is “no longer serving a judicially imposed sentence, but a presidentially commuted one.” Surratt, 855 F.3d at 220 (Wilkinson, J., concurring). The reasoning of Judge Wilkinson's concurrence has since been reaffirmed by the Fourth Circuit and district courts in this circuit. See Blount v. Clarke, 890 F.3d 456, 463 (4th Cir. 2018) (reversing the district court for adopting the reasoning of Judge Wynn's dissent rather than applying Judge Wilkinson's concurrence in reviewing a state sentence shortened by a governor's pardon); see also Holmes v. United States, CR No. 9:04-CR-0429, 2019 WL 4689237, at *2 (D.S.C. Sept. 26, 2019) (applying Surratt and Blount to find that the petitioner's § 2255 motion was mooted by a presidential commutation of the petitioner's sentence); United States v. Harris, Criminal No. 3:06CR61, 2018 WL 5831256, at *2 (E.D. Va. Nov. 6, 2018) (same); Taylor v. United States, No. 5:06-CR-279-D, 2018 WL 2016301, at *1 (E.D. N.C. Apr. 28, 2018) (applying Surratt).
Judge James A. Wynn, Jr. dissented, stating that because Surratt continued to serve a portion of the sentence that was not commuted, his challenge to that sentence was not moot. Surratt, 855 F.3d at 220-33; see also Dennis v. Terris, 927 F.3d 955, 959 (6th Cir. 2019) (rejecting Surratt and holding that a commuted sentence continues to be subject to judicial scrutiny with respect to the portion of the sentence that has not been commuted), cert. denied, 140 S.Ct. 2571 (2020).
Here, Petitioner argues his mandatory life sentence under the former § 841(b)(1)(A) is unlawful because of an intervening change in the case law retroactive on collateral review. But, Petitioner is no longer serving a life sentence imposed by the court. Instead, he is serving a sentence commuted by the President. See Surratt, 855 F.3d at 219 (Wilkinson, J., concurring) (“The President's commutation order simply closes the judicial door. Absent some constitutional infirmity in the commutation order, which is not present here, we may not readjust or rescind what the President, in the exercise of his pardon power, has done.”). Therefore, the court is without jurisdiction to consider Petitioner's claim that his sentence is unlawful. See Blount, 890 F.3d at 462-63 (finding the district court erred as a matter of law in failing to apply Surratt because the court was without jurisdiction to opine on the constitutionality of the petitioner's original sentence in light of the Governor's pardon).
RECOMMENDATION
Based on the foregoing, the court recommends Respondents' motion to dismiss (ECF No. 10) be granted and the Petition be dismissed without prejudice.
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).