Opinion
C/A No. 9:14-3734-MGL-BM
07-24-2017
Benjamin Wright, Petitioner, v. Warden L. Thomas, Respondent.
REPORT AND RECOMMENDATION
The Petitioner, Benjamin Wright, has filed this action pro se seeking habeas relief pursuant to 28 U.S.C. § 2241. When Petitioner originally filed this action, he was incarcerated at the Federal Correctional Institution in Edgefield, South Carolina. Respondent represents that Petitioner is now (apparently) housed in a federal residential re-entry center in Macon, Georgia. See Respondent's Memorandum, p. 1, n. 1 (citing to BOP Inmate Locator, https://www.bop.gov/inmateloc./). However, no change of address notice has been filed with the Court. See Order (Court Docket No. 5) [Wherein Petitioner was ordered to always keep the Clerk of Court advised in writing of any address change].
After a review of Petitioner's filings, the undersigned issued a Report and Recommendation that this action be summarily dismissed, without prejudice, and without service of process. See Court Docket No. 13. Subsequently, on April 26, 2017, the Honorable Mary G. Lewis, United States District Judge, issued an Order remanding this matter to the undersigned in light of the position the government took in Surratt v. United States, 797 F.3d 240 (4th Cir. 2015)(vacated)(case then rendered moot by Order filed by the Fourth Circuit on April 21, 2017) and Surratt v. United States, No. 3-12-cv-513, 2014 WL 2013328 (W.D.N.C. May 16, 2014), concerning § 2241 petitions. See Court Docket No. 36. Thereafter, on June 16, 2017, the Respondent filed a Motion to Dismiss. As the Petitioner is proceeding pro se, a Roseboro order was then entered by the Court on June 19, 2017, advising Petitioner of the importance of a dispositive motion and of the necessity for him to file an adequate response. Petitioner was specifically advised that if he failed to respond adequately, the Respondent's motion may be granted, thereby ending his case. However, despite this warning, Petitioner failed to file a response to the motion to dismiss.
The BOP Inmate Locator website indicates that Petitioner is scheduled to be released on August 13, 2017. See BOP Inmate Locator, https://www.bop.gov/inmateloc./ Accordingly, it is likely that this matter could possibly soon become moot. See Salgado v. Fed. Bureau of Prisons, 220 Fed.Appx. 256, 256-257 (5th Cir. 2007)[dismissing appeal of denial of § 2241 petition as moot where petitioner sought reduction in prison term and was released from prison while appeal was pending]. In any event, the Petition could also be dismissed for failure to prosecute if Petitioner has not complied with the Court's mandatory order to notify the Court of any change of address. Petitioner has had some of his mail returned as undeliverable, and (as noted) he missed the Court deadline to respond to the pending motion. See Court Docket Nos. 5, 43, and 48. However, due to the age of this case and the District Judge's request for it to be handled on an expedited basis when it was remanded on April 26, 2017, the undersigned has proceeded to address the issues presented by the Petition instead of recommending a dismissal based on failure to prosecute, which may only serve to prolong this action if Petitioner were to subsequently file an objection to that recommendation.
This matter is now before the Court for disposition.
This case was automatically referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 19.02(B)(2)(c), D.S.C. The Respondent has filed a motion to dismiss. As this is a dispositive motion, this Report and Recommendation is entered for review by the Court.
Background
Petitioner pled guilty to Possession with Intent to Distribute More than Five (5) Grams of Cocaine Base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). On April 22, 2004, Petitioner was sentenced in the District Court for the Middle District of Georgia as a career offender (see U.S.S.G. § 4B1.1(a)) to a sentence of two hundred ten (210) months. On October 13, 2004, the Eleventh Circuit Court of Appeals dismissed Petitioner's appeal of his conviction because, in executing the plea agreement, he waived his right to appeal. See Petition, ECF No. 1 at 2; Wright v. United States, 30 F. App'x 871, 872 (11th Cir. 2008).
The career offender enhancement defines a "career offender," and provides that a defendant is such an offender if:
(1) [he] was at least eighteen years old at the time [he] committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) [he] has at least two prior felony convictions of either a crime of violence or a controlled substance offense.U.S.S.G. § 4B1.1(a).
See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ["We note that 'the most frequent use of judicial notice is in noticing the content of court records.'"].
On April 21, 2005, Petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in the United States District Court for the Middle District of Georgia, which was denied on January 11, 2006. On June 22, 2006, the Eleventh Circuit granted leave for Petitioner to file a second § 2255 motion so that he could present his claim that his career offender status had been eliminated retroactively (because two state court convictions that gave rise to his career offender status were overturned); see Wright v. United States, 301 F. App'x at 872; and on July 27, 2006, Petitioner filed a second § 2255 petition in which he alleged that the prior convictions used to enhance his career offender status were unconstitutional and could not be relied upon to sustain the career offender designation as the state court convictions were subsequently vacated. Following an evidentiary hearing, the district court denied Petitioner's second § 2255 petition. Wright v. United States, Nos. 7:06-CV-68(HL), 7:03-CR-21, 2007 WL 3090804 (M.D.Ga. Oct. 19, 2007). The Eleventh Circuit affirmed on December 4, 2008. Wright v. United States, 301 F. App'x 871 (11th Cir. 2008).
The Eleventh Circuit also vacated the district court's decision as to Petitioner's first § 2255 petition on December 28, 2006, and remanded for the district court to consider Petitioner's claim that he had been deprived of a potential substantial-assistance reduction of his base offense level at sentencing. Wright v. U.S., 212 F. App'x 904 (11th Cir. 2006). On July 28, 2009, the district court again denied the first § 2255 petition. Wright v. United States, Nos. 7:06-CV-68, 7:03-CR-21(HL), 2009 WL 3253948 (M.D.Ga. July 28, 2009).
In this current Petition, which Petitioner attempts to bring under § 2241, Petitioner contends that this Court should remove his career criminal enhancement and re-sentence him accordingly or, in the alternative, should transfer this matter to the Middle District of Georgia for resolution. ECF No. 1 at 6. Petitioner argues that he should not be sentenced as a career criminal because the two underlying state (Georgia) convictions which were used to enhance his current sentence have now been overturned. Petitioner asserts that he has not been afforded a full and fair opportunity to raise or litigate his career offender enhancement; that his Sixth Amendment rights were violated by his career offender enhancement which denied his due process rights to accuracy in sentencing; that he is "innocent" of the sentence imposed under 4B1.1 because the sentence was based on a non-qualifying predicate offense and therefore he should not have been categorized as a career offender; and that an erroneous misapplication of sentencing guidelines (because his May 1 and May 2006 state court convictions were later vacated) resulted in a "complete miscarriage of justice." Id. at 3-5.
In support of this contention, Petitioner submitted information from the Superior Court for Tift County, Georgia indicating that on May 1, 2006, his motion to withdraw his guilty plea in case number 95CR371 was granted and it was ordered that his plea of guilty to charges in that action was withdrawn (ECF No. 1-1 at 1), and that on May 5, 2006, his motion to withdraw his guilty plea in case number 95CR194 was granted and it was ordered that his plea of guilty to the charges in that action was also withdrawn (ECF No. 1-1 at 2). The Respondent has not contested those documents.
Discussion
"[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)). Hence, Petitioner cannot challenge his federal conviction and sentence under § 2241 unless he can satisfy the § 2255 savings clause, which provides:
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); Ennis v. Olsen, No. 00-7361, 2000 WL 1868982, at *1 (4th Cir. Dec. 22, 2000). Petitioner argues that his remedies are inadequate because his prior petition under § 2255, which addressed these same issues, was denied. 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." In re Vial, 115 F.3d at 1194 n. 5. (internal citations omitted). In Petitioner's case, his second § 2255 petition (which discussed these issues) was dismissed because the District Court for the Middle District of Georgia found that these issues were time barred due to Petitioner's failure to exercise due diligence in pursuing having his two state court convictions set aside. See Wright v. United States, Nos. 7:06- CV-68(HL), 7:03-CR-21, 2007 WL 3090804 (M.D.Ga. Oct. 19, 2007), aff'd, 301 F. App'x 871 (11th Cir. 2008). The Eleventh Circuit affirmed the District Court's Decision, holding:
[t]he district court's finding-that neither petitioner nor his attorney established that they exercised due diligence in the more than two-year period between the imposition of petitioner's federal sentence and the filing of the motions seeking vacatur of the two state court convictions at issue-is well supported by the record and thus not clearly erroneous.See Wright v. United States, 301 F. App'x 871, 874 (11th Cir. 2008). Accordingly, Petitioner has not shown that he was unable to pursue these issues in his second § 2255 petition. Rather, he is simply dissatisfied with the result of that proceeding, which did not produce his desired outcome.
As for Petitioner's present § 2241 Petition, the Fourth Circuit has announced a three-part test to determine whether a petition challenging the lawfulness of a conviction or sentence can be brought under § 2241:
Section 2255 is inadequate and ineffective to test the legality of a conviction when: (1) at the time of the 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.In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000)(emphasis added). This test was formulated expressly to provide a remedy for the "fundamental defect presented by a situation in which an individual is incarcerated for conduct that is not criminal but, through no fault of his own, he has no source of redress." Id. at 333 n. 3. Petitioner does not meet these criteria, as he has not alleged that the conduct for which he was convicted has been deemed non-criminal by a substantive law change. Rather, Petitioner argues that the sentencing court improperly enhanced his sentence as a career offender based on two state court convictions which were later overturned. However, the United States Court of Appeals for the Fourth Circuit has not extended the reach of the savings clause to petitions which challenge only a sentence. United States v. Poole, 531 F.3d 263, 267 n. 7 (4th Cir. 2008); see also Farrow v. Revell, 541 F. App'x 327, 328 (4th Cir. 2013) [challenge to sentencing factor is not cognizable under § 2241]. Accordingly, Petitioner fails to state a cognizable § 2241 claim as to his argument that he is actually innocent of his sentence enhancement. See United States v. Pettiford, 612 F.3d 270, 284 (4th Cir. 2010)[holding that "actual innocence applies in the context of habitual offender provisions only where the challenge to eligibility stems from factual innocence of the predicate crimes, and not from the legal classification of the predicate crimes"]; see also Darden v. Stephens, 426 F. App'x 173, 174 (4th Cir. 2011)[refusing to extend the savings clause to reach the petitioner's claim that he was actually innocent of being a career offender].
As for Petitioner's attempt to argue that the proceedings in United States v. Surratt, 797 F.3d 240, 246 (4th Cir. 2015), support his bringing this action under § 2241, that argument is without merit. First, the panel decision in Surratt was vacated by the Fourth Circuit's granting of an en banc rehearing in that case. See Kilgore v. Meeks, No. 16-2052, 2017 WL 770575, at *3 (D.S.C. Feb. 28, 2017)[Finding that since the Fourth Circuit's grant of rehearing en banc vacated the panel's decision in United States v. Surratt, In re Jones remains the controlling law of the Fourth Circuit]; Parnell v. Meeks, No. 15-2817-MGL-KM, 2015 WL 9694515at * n. (D.S.C. Dec. 9, 2015)[declining to consider the decision in Surratt, since the granting of rehearing in that case overruled the prior panel's opinion], adopted by, 2016 WL 128148 (D.S.C. Jan. 11, 2016); cf Barbour v. International Union, 640 F.3d 599, 604-605 (4th Cir. 2011)[referencing panel opinion being vacated when a majority of active circuit judges voted to rehear this case en banc], abrogated on other grounds by, 28 U.S.C. 1446(b)(2)(B); United States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006); United States v. Cline, No. 02-1358, 2014 WL 11516334, at * 1 (D.S.C. Aug. 11, 2014)[finding Petitioner's reliance on a case which had been granted rehearing en banc did not provide him relief since the granting of rehearing vacated that previous panel judgement and opinion]; Viault v. United States, 609 F.Supp.2d 518, 526 n. 5 (E.D.N.C. 2009)[discussing case losing its precedential value pursuant to Fourth Circuit Local Rule 35(c) when vacated by the subsequent granting of rehearing en banc by the Fourth Circuit].
Furthermore, even assuming arguendo that the panel decision in Surratt could still be relied upon, Petitioner has not disputed the Government's position that his sentence fell within the statutory maximum guidelines. Therefore, Petitioner's facts are not in the narrow exception mentioned by the panel in Surratt for claims which may potentially be able to be maintained through a §2241 petition, even if that decision had not been vacated. Kilgore, 2017 WL 770575, at * 3 [" [T]he court recognizes that the Fourth Circuit in United States v. Surratt, left open the possibility of relief under § 2241 for an allegedly unlawful sentence to a term of imprisonment exceeding the statutory maximum for the underlying charge.](citing United States v. Surratt, 797 F.3d 240, 269 (4th Cir. 2015), reh'g en banc granted (Dec. 2, 2015)[stating that the court did "not decide whether, for instance, a federal prisoner might bring a § 2241 petition claiming that the district court unlawfully sentenced him to a term of imprisonment exceeding the statutory maximum"].
Finally, the undersigned also notes that the Government's position in Surratt that Mr. Surratt could bring his petition under § 2241 does not affect Petitioner's ability to pursue his claim under § 2241. Specifically, the Fourth Circuit en banc held that the district court must still dismiss an unauthorized habeas motion for lack of jurisdiction, regardless of the Government's position. United States v. Surratt, 797 F.3d 240, 247 (4th Cir. 2015), reh'g en banc granted (Dec. 2, 2015)["'If a federal prisoner brings a § 2241 petition that does not fall within the scope of [the] "savings clause," then the district court must dismiss the "unauthorized habeas motion ... for lack of jurisdiction,' Rice v. Rivera, 617 F.3d 802, 807 (4th Cir.2010), even if the Government supports the prisoner's position."] (emphasis added).
Conclusion
Accordingly, it is recommended that the Petition in this action be dismissed, without prejudice.
Since Petitioner cannot pursue these claims under § 2241, the undersigned does not find that it would be appropriate to transfer the Petition in this case. If Petitioner seeks to bring another § 2255 to pursue his claims, he will first need to file for permission to so from the appropriate circuit court. In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997)["Under the AEDPA, an individual may not file a second or successive § 2254 petition for a writ of habeas corpus or [a 28 U.S.C.] § 2255 motion to vacate sentence without first receiving permission to do so from the appropriate circuit court of appeals."]; see also Felker v. Turpin, 518 U.S. 651 (1996).
The parties are referred to the Notice Page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge July 24, 2017
Charleston, South Carolina
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 835
Charleston, South Carolina 29402
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).