Opinion
C/A No. 4:20-1570-RMG-TER
05-06-2020
Lawrence Woodard, #05206-084, Petitioner, v. Warden, Edgefield FCI, Respondent.
Report and Recommendation
Petitioner is a federal prisoner in custody in South Carolina at FCI-Edgefield. Petitioner was sentenced by the U.S. District Court, Western District of Virgina. He is seeking habeas relief under § 2241 and proceeding in this action pro se. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local 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.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings pursuant to the procedural provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted 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, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, the petition is subject to summary dismissal.
Furthermore, this court is charged with screening Petitioner's lawsuit to determine if "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4 of Rules Governing Section 2254 Cases in the United States District Courts. Following the required initial review, it is recommended that the Petition submitted in this case should be dismissed.
DISCUSSION
In 1997, Petitioner was sentenced for convictions under 21 U.S.C. § § 841(B)(1)(B) and 846. (ECF No. 1). The Fourth Circuit Court of Appeals affirmed in 1999 and a § 2255 motion was denied in 2000. In 2016, Petitioner was granted a successive 2255. In 2018, the successive 2255 was denied. The § 2255 court order noted that Petitioner was sentenced as a career offender pursuant to U.S. Sentencing Guidelines § 4B1.1(1995)(mandatory pre-Booker guidelines). U.S. v. Woodward, No. 7:96-cr-0109-JLK (W.D. Va. Aug. 30, 2018)(ECF No. 119).
Petitioner makes two arguments, one regarding a confluence of Beckles, Johnson, and Booker and another regarding his North Carolina predicate under N.C . Gen. Stat. § 14-32(b).
"[D]efendants 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)). 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 Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001); In other words, as applied here, Petitioner's § 2241 action is barred unless he can demonstrate that the relief available to him under § 2255 is inadequate or ineffective. Petitioner was unsuccessful in seeking relief under § 2255 in his petition in his sentencing court. However, "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." See In re Vial, 115 F.3d at 1194 n.5 (citations omitted).
The Fourth Circuit established a test for when a petitioner may meet the savings clause under § 2255 when he contests his sentence, not only his conviction. U.S. v. Wheeler, 886 F.3d 415 (4th Cir. 2018). Section "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." Id. at 429.
Consideration of this issue is appropriate under § 1915 review because the § 2255 savings clause is a jurisdictional requirement and subject matter jurisdiction may be raised sua sponte. In the past, the Fourth Circuit has held that if a petitioner cannot meet the savings clause requirements then the § 2241 petition "must be dismissed for lack of jurisdiction." Rice, 617 F.3d at 807. In Wheeler, the Fourth Circuit again held that "the savings clause is a jurisdictional provision." Wheeler, 886 F.3d at 423. Thus, an analysis of whether Petitioner meets the four factor savings clause test created in Wheeler is set forth below.
Petitioner argues Beckles left open whether Johnson extends to those sentenced under the mandatory guidelines, pre-Booker. (ECF No. 2 at 3). Petitioner cannot meet the Wheeler test for this argument as he points to no substantive law change that was deemed to apply retroactively on collateral review. The Fourth Circuit Court of Appeals refused to extrapolate a recognized right from Booker, Johnson, and Beckles read together. U.S. v. Brown, 868 F.3d 297, 300 (4th Cir. 2017). Petitioner's argument is as "self-defeating" as the argument by the petitioner in Brown: "If the Supreme Court left open the question of whether Petitioner's asserted right exists, the Supreme Court has not 'recognized' that right." Id. at 302. "Accordingly, at least for purposes of collateral review, we must wait for the Supreme Court to recognize the right urged by Petitioner." Id. at 303.
Petitioner cannot meet the second element of Wheeler with this argument.
Further, Petitioner argues that his predicate from North Carolina of assault with deadly weapon and inflicting serious injury under N.C. Gen. Stat. § 14-32(B) no longer qualifies as a crime of violence under U.S. Sentencing Guidelines § 4b1.2(a)(2)(1995), citing United States v. Vinson, 794 F.3d 418, 430-31 (4th Cir.), on reh'g, 805 F.3d 120 (4th Cir. 2015) and United States v. Jones, No. 4:15-CR-5-FL, 2015 WL 4133747, at *1 (E.D.N.C. July 8, 2015). Petitioner refers to the predicate as "AWDWISI." Petitioner alleges that the Fourth Circuit found that North Carolina's AWDWISI cannot be considered a crime of violence.
The Fourth Circuit held in Vinson that N.C. Gen. Stat. 14-33(c)(2), an entirely different statute, was divisible and the modified categorical approach applicable and that the crime categorically qualified as a "MCDV" such that the district court there erred by dismissing the indictment charging Vinson with unlawful possession of a firearm by a person convicted of an MCDV. United States v. Vinson, 794 F.3d 418, 430-31 (4th Cir.), on reh'g, 805 F.3d 120 (4th Cir. 2015). The Vinson case cannot be read to be a substantive law change regarding Petitioner's predicate conviction under N.C. Gen. Stat. § 14-32(B). Petitioner cannot meet Wheeler using this argument and case law.
See also Goins v. United States, No. 7:10-CR-107-FL-1, 2017 WL 455400, at *4-5 (E.D.N.C. Feb. 2, 2017)(noting the limited nature of Vinson holding and dicta)(After Vinson, the Fourth Circuit Court of Appeals has found that certain forms of North Carolina assault still qualify as violent felony predicates under the ACCA, and not that Vinson's holding applies globally to all forms of assaults).
As to Petitioner's argument regarding Jones, it is not Fourth Circuit Court of Appeals precedent and cannot meet Wheeler's second element. A district judge in the Eastern District of North Carolina found that under N.C. Gen. Stat. § 14-32(b), "AWDWISI cannot categorically be a "crime of violence" "because the state may obtain a conviction upon a showing of 'a thoughtless disregard of consequences." United States v. Jones, No. 4:15-CR-5-FL, 2015 WL 4133747, at *2 (E.D.N.C. July 8, 2015). However, the same district judge in the Eastern District of North Carolina reversed course and found "where the residual clause of § 4B1.2(a) remains applicable, defendant's prior convictions of AWDWISI and robbery with a dangerous weapon properly constitute crimes of violence under the residual clause of § 4B1.2." United States v. Johnson, No. 7:15-CR-54-FL-1, 2016 WL 7168064, at *2 (E.D.N.C. Dec. 8, 2016). Petitioner's citation to Jones cannot be considered a law change of the Fourth Circuit Court of Appeals, and moreover, its holding principle was invalidated by the same district judge in the Eastern District of North Carolina a year later. Petitioner cannot meet the second element of the Wheeler test via citation to Jones.
Petitioner has not demonstrated that he can meet the elements of Wheeler. Petitioner has not demonstrated that a motion filed pursuant to § 2255 is inadequate or ineffective to test the legality of his sentence thereby allowing him to file a § 2241 petition, under Wheeler.
RECOMMENDATION
Accordingly, it is recommended that the Petition be dismissed without prejudice and without requiring the respondent to file a return.
See Platts v. O'Brien, 691 Fed. Appx. 774 (4th Cir. June 22, 2017) (citing S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) ("A dismissal for ... [a] defect in subject matter jurisdiction[ ] must be one without prejudice, because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits.").
IT IS SO ORDERED.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge May 6, 2020
Florence, South Carolina
Petitioner's 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
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).