Opinion
C. A. 5:23-1686-TMC-KDW
01-25-2024
Caster Delaney Whetstone, Petitioner, v. Warden, F.C.I. Williamsburg, Respondent.
REPORT AND RECOMMENDATION
Caster Delaney Whetstone (“Petitioner”) filed this Petition seeking 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 Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's Motion to Dismiss. ECF No. 25. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. ECF No. 26. On July 18, 2023, Respondent filed a Notice of Supplemental Authorities in Support of his Motion to Dismiss. ECF No. 30. Petitioner filed a Response in Opposition to Respondent's Motion to Dismiss on July 31, 2023. ECF No. 31.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the court grant Respondent's Motion to Dismiss.
I. Factual and Procedural Background
On February 22, 2017, Petitioner entered a guilty plea to Possession with Intent to Distribute and Distribution of Cocaine in violation of 21 U.S.C. §841(a)(1) and § 841(b)(1)(C), and Felon in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). See United States v. Whetstone, C/A No.: 3:16-cr-00067-JFA-1 (D.S.C. June 6, 2018), ECF No. 33.On June 4, 2018, the court sentenced Petitioner to 180-months imprisonment. Id., ECF No. 55. Petitioner filed an appeal on June 7, 2018, challenging his judgment and sentence, and on December 3, 2018, the Fourth Circuit Court of Appeals (“Fourth Circuit”) dismissed the appeal. Id., ECF Nos. 59, 68. On October 21, 2019, Petitioner filed a motion to vacate judgment under 28 U.S.C. § 2255, which he amended on December 23, 2019. Id., ECF Nos. 69, 77. On April 23, 2020, the court issued an order dismissing Petitioner's motion to vacate his judgment. Id., ECF No. 90. Petitioner appealed the dismissal of his motion to vacate, and the Fourth Circuit dismissed the appeal for failure to prosecute on August 18, 2020. ECF Nos. 93, 107.
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 filed the instant habeas petition challenging his sentence as an armed career criminal. ECF Nos. 1 at 4-5; 1-1 at 14-18.
II. Discussion
A. Standard on Motion to Dismiss
Dismissal is appropriate under Fed.R.Civ.P. 12(b)(1) where the court lacks subject-matter jurisdiction. A motion to dismiss under Rule 12(b)(1) examines whether a complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Indeed, the presence of a few conclusory legal terms does not insulate a complaint from dismissal when the facts alleged in the complaint cannot support the legal conclusion. Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
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 district 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. Merriweather v. Reynolds, 586 F.Supp.2d 548, 554 (D.S.C. 2008). The mandated liberal construction afforded to pro se pleadings means that 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 that 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. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
Petitioner seeks to vacate his sentence arguing that under the holding in Taylor v. United States, 142 S.Ct. 2015 (2022), he does not have three qualifying prior convictions to support an armed career criminal enhanced sentence. ECF No.1-1.
Defendants convicted in federal court must ordinarily 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 motion filed under § 2241 is typically used to challenge the way 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 as follows:
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).
Until recently, the Fourth Circuit recognized a petitioner could contest the legality of a sentence by showing § 2255 is inadequate and ineffective because:
(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).
On June 22, 2023, the Supreme Court issued an opinion in Jones v. Hendrix, 599 U.S. 465 (2023) that rejected the foundation supporting the Fourth Circuit's interpretation of the “inadequate and ineffective” language in § 2255 as delineated in its Wheeler savings clause test. In Jones v. Hendrix, the Court found that “§ 2255(e)'s saving clause does not permit a prisoner asserting an intervening change in statutory interpretation to circumvent AEDPA's restrictions on second or successive § 2255 motions by filing a § 2241 petition.” Id. at 471. The Court noted that § 2255(h) limited second or successive § 2255 motions to those that contain newly discovered evidence, or a new rule of constitutional law made retroactive to cases on collateral review. Id. at 476. Addressing petitions that raised challenges that fall outside of § 2255(h), the Court held “[t]he inability of a prisoner with a statutory claim to satisfy those conditions does not mean that he can bring his claim in a habeas petition under the saving clause. It means that he cannot bring it at all.” Id. at 480.
Petitioner contends he is able to satisfy the Wheeler saving clause test and therefore he can seek relief from his erroneous sentence in a § 2241 habeas. ECF No. 1-1 at 8-11. Petitioner argues he is actually innocent of his enhanced statutory sentence as an armed career criminal. Id. at 11. Petitioner cites to the holding in Taylor v. United States, 142 S.Ct. 2015, and argues his prior conviction for assault with intent to kill (“AWIK”) cannot be used to designate him as an armed career criminal because his AWIK conviction is not a violent felony. Id. In Taylor, the Supreme Court held that attempted Hobbs Act robbery is not a crime of violence under § 924(c)(3)(A). 142 S.Ct. at 2025. Petitioner contends under South Carolina law, AWIK is an “attempt crime,” which does not have to be committed and therefore cannot be a violent crime. ECF No. 1-1 at 12-13.
Respondent moves to dismiss Petitioner's § 2241 petition arguing his challenge to his armed career criminal enhanced sentence is not cognizable under § 2241. ECF No. 25-1 at 4. Respondent argues the court lacks subject matter jurisdiction over Petitioner's claim of actual innocence of his armed career criminal sentence as Petitioner has not shown he is factually innocent of his crime of conviction. ECF No. 25-1 at 7-8. Respondent also contends the holding in Taylor, 142 S.Ct. 2015, does not apply to the conviction Petitioner is challenging, as Petitioner was convicted of AWIK, not attempted Hobbs Act robbery. Id. at 8-9. Respondent also contends Petitioner cannot satisfy the Wheeler savings clause test because he cannot show there has been a change in the substantive law establishing the legality of the armed career criminal sentence. Id. at 8-11. Respondent supplements the authorities he uses in support of his Motion, and cites to the Supreme Court's recent decision in Jones v. Hendrix, 599 U.S. 465, and argues Petitioner is not able to collaterally attack his sentence under § 2241 based on intervening changes in statutory interpretation. ECF No. 30 at 1-2. Respondent argues Petitioner has not identified any unusual circumstances that makes it impossible or impracticable to seek relief from his sentencing court. Id. at 3. Respondent also claims Petitioner does not challenge the legality of his detention beyond his collateral attacks on the calculation of his sentence itself. Id.
In Response, Petitioner appears to argue the Fourth Circuit's Wheeler test remains a viable method for attacking a sentence that exceeded the statutory maximum for which Petitioner was convicted. ECF No. 31 at 8. Petitioner claims he meets the four prongs of the Wheeler saving clause test and therefore the court has subject matter jurisdiction to consider his § 2241 petition. Id. at 8-13. Petitioner does not address Respondent's claim that Petitioner's habeas petition must be dismissed under the Supreme Court's recent decision in Jones v. Hendrix. ECF No. 30.
The undersigned finds the Supreme Court's recent decision in Jones v. Hendrix, 142 S.Ct. 2015, abrogated the holding in Wheeler and therefore Petitioner may not utilize the Wheeler savings clause test to challenge his armed career criminal sentence under § 2241. See Hall v. Hudgins, No. 22-6208, 2023 WL 4363658, at *1 (4th Cir. July 6, 2023) (explaining that because Petitioner seeks to utilize the Wheeler savings clause tests to bring a § 2241 petition challenging his sentence as an armed career offender, the undersigned finds the court no longer has subject matter jurisdiction to consider these claims). The undersigned recommends Respondent's Motion to Dismiss be granted.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends that the court grant Respondent's Motion to Dismiss for lack of subject matter jurisdiction, ECF No. 25, deny the Petition for writ of habeas corpus, and dismiss the Petition without prejudice.
IT IS SO RECOMMENDED.
Kaymani D. West, J.
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
Post Office Box 2317
Florence, South Carolina 29503
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).