Opinion
C/A 6:22-cv-03605-BHH-KFM
10-21-2022
Difankh Asar, Petitioner, v. Nanette Barnes, Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
The petitioner, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2241 for habeas relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil 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 Court. The petitioner's § 2241 petition was entered on the docket on October 18, 2022 (doc. 1). The case is in proper form for judicial screening. Nevertheless, for the reasons set forth below, it is recommended that the petitioner's § 2241 petition be dismissed without prejudice and without requiring the respondent to file an answer or return.
BACKGROUND
Petitioner's Conviction and Sentence
On July 26, 2010, the petitioner pled guilty in the United States District Court for the District of South Carolina to Count 1 of an Indictment charging him with the unlawful possession of a firearm. See United States v. Asar, C/A No. 7:10-cr-00429-BHH-1, at docs. 43; 44 (D.S.C.). On December 9, 2010, the Honorable G. Ross Anderson, Jr., United States District Judge, sentenced the petitioner to a term of 180 months' imprisonment followed by five years of supervised release. Id. at doc. 56. The sentence was enhanced based upon the Armed Career Criminal Act (“ACCA”). Id. The petitioner appealed, but the Fourth Circuit Court of Appeals affirmed the district court on May 8, 2012. Id. at docs. 59; 81; see United States v. Asar, 480 Fed.Appx. 207 (4th Cir. 2012).
The court takes judicial notice of the records in the petitioner's criminal case in the District of South Carolina at case number 7:10-cr-00429-BHH-1 as well as collateral attacks on his sentence filed in the United States District Court for the Northern District of Alabama, the District of South Carolina, and the Fourth Circuit Court of Appeals. See Phillips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts “may properly take judicial notice of matters of public record.”); 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.'”).
During the pendency of his § 2255 motions-discussed below-the petitioner, on May 23, 2018, filed a § 2241 action (seeking relief via the § 2255 savings clause) in the United States District Court for the Northern District of Alabama, arguing that his sentence was unconstitutional in light of Johnson v. United States, 135 S.Ct. 2551 (2015). See Asar v. United States of America, C/A No. 7:18-cv-00789-ACA-JHE (N.D. Ala.). The petition was dismissed because the petitioner did not bring the case into proper form. Id. at doc. 5.
On May 29, 2019, the petitioner filed another petition pursuant to § 2241, arguing that his sentence was unconstitutional because of Johnson. See Asar v. Warden Antonelli, C/A No. 6:19-cv-01549-HMH (D.S.C.). The petition was dismissed because the petitioner could not meet the savings clause test. Asar v. Warden Antonelli, C/A No. 6:19-cv-01549-HMH-KFM, 2019 WL 2746280 (D.S.C. June 3, 2019), Report and Recommendation adopted by 2019 WL 2743842 (D.S.C. July 1, 2019), aff'd 785 Fed.Appx. 967 (4th Cir. 2019). The Fourth Circuit Court of Appeals affirmed the district court on November 26, 2019. Asar, 785 Fed.Appx. 967.
On January 31,2020, the petitioner filed another petition pursuant to § 2241, arguing that his conviction and sentence were unconstitutional because of Rehaif v. United States, 139 S.Ct. 2191 (2019). See Asar v. Warden Travis, C/A No. 6:20-cv-00394-BHH-KFM (D.S.C.). The petition was dismissed because the petitioner could not meet the savings clause test. See Asar v. Warden Travis, C/A No. 6:20-cv-00394-BHH-KFM, 2020 WL 1099391 (D.S.C. February 10, 2020), Report and Recommendation adopted by 2020 WL 3843638 (D.S.C. July 8, 2020), aff'd as modified 808 Fed.Appx. 676 (4th Cir. 2021) (modifying dismissal as without prejudice).
Petitioner's § 2255 Motions
The petitioner has filed four separate § 2255 motions. The first, filed in 2012, argued ineffective assistance of counsel, that the petitioner did not have any predicate offenses for ACCA purposes, and the rule of lenity. See United States v. Asar, C/A No. 7:10-cr-00429-BHH-1, at doc. 83. The petitioner's § 2255 motion was denied on October 10, 2012. Id. at doc. 107, 2012 WL 4809145. The petitioner's appeal of his § 2255 motion was dismissed by the Court of Appeals on April 1, 2013, and his petition for a writ of certiorari was denied by the United States Supreme Court on June 24, 2013. United States v. Asar, 516 Fed.Appx. 256 (4th Cir. 2013), cert denied 570 U.S. 924 (2013).
On July 22, 2013, the petitioner sought permission from the Court of Appeals to file a second/successive § 2255 motion, which was denied on August 8, 2013. See In re Asar, C/A No. 13-314 (4th Cir. Aug. 8, 2013). On March 11, 2016, the petitioner again sought permission from the Court of Appeals to file a second/successive § 2255 motion, which was granted on May 5, 2016, in light of the United States Supreme Court's decision in Johnson, which was held to be retroactive on collateral review by Welch v. United States, 136 S.Ct. 1257 (2016). See In re Asar, C/A No. 16-224 (4th Cir. May 5, 2016). The petitioner filed the authorized § 2255 motion on May 6, 2016. See United States v. Asar, C/A No. 7:10-cr-00429-BHH-1, at doc. 133. On July 19, 2017, the petitioner's motion was denied, finding that his prior convictions still counted as priors for purposes of the ACCA despite Johnson, relying on the Fourth Circuit's decision in United States v. King, 673 F.3d 274 (4th Cir. 2012), because they fall under the “force clause” of the United States Sentencing Guidelines (“USSG”). Id. at doc. 153, 2017 WL 11444013. The petitioner appealed, his appeal was dismissed, and the Supreme Court denied his petition for a writ of certiorari. United States v. Asar, 704 Fed.Appx. 280 (4th Cir. 2017), cert denied 139 S.Ct. 281 (2018).
During this same time, on June 6, 2018, the petitioner filed a motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. United States v. Asar, C/A No. 7:10-cr-00429-BHH-1, at doc. 164. The petitioner then filed two motions to amend his Rule 60(b) motion, and both motions were denied. Id. at docs. 165; 166; 173; 174. The petitioner's appeal of the denial was dismissed on March 1,2019. United States v. Asar, 755 Fed.Appx. 306 (4th Cir. 2019), reh'g and reh'g en banc denied. During this same time, the petitioner unsuccessfully sought a writ of mandamus from the Court of Appeals, arguing that the district court was unduly delaying ruling on his Rule 60(b) motion. See In re Asar, 755 Fed.Appx. 266, 2019 WL 990285 (4th Cir. 2019) (mem.).
On March 22, 2019, the petitioner sought permission from the Court of Appeals to file another successive § 2255 motion. See In re Asar, C/A No. 19-165 (4th Cir.). The Court of Appeals denied the petitioner's request on April 11,2019. Id. On March 28, 2019, the petitioner filed a third § 2255 motion, even though his request to file another § 2255 motion remained pending before the Court of Appeals. See United States v. Asar, C/A No. 7:10-cr-00429-BHH-1, at doc. 187.
On August 8, 2019, the petitioner again sought permission from the Court of Appeals to file a successive § 2255 motion based upon Rehaif, which was denied on August 29, 2019. See In re Asar, C/A No. 19-315 (4th Cir. 2019). On August 19, 2019, while the request was pending before the Court of Appeals, the petitioner filed a fourth § 2255 motion, based upon Rehaif. Id. at doc. 201. After the motion was filed, on August 27, 2019, an order was issued instructing the United States Attorney to file an answer or other pleading to the petitioner's fourth § 2255 motion. See United States v. Asar, C/A No. 7:10-cr-00429-BHH-1, at doc. 202. On September 9, 2019, the United States filed a motion to dismiss, arguing that the motion was successive. Id. at doc. 210. On October 27, 2020, the petitioner's motions were denied as improper and successive. Id. at doc. 217. During this same time, on September 11, 2020, the petitioner again sought permission from the Court of Appeals to file a successive § 2255 motion based upon Rehaif. See In re Asar, C/A No. 20-438 (4th Cir.). The motion was denied on September 14, 2021. Id.
On September 17, 2021, and February 8, 2022, the petitioner filed motions for compassionate relief, which were denied on February 10, 2022. United States v. Asar, C/A No. 7:10-cr-00429-BHH-1, at docs 222; 232; 233; 234.
Petitioner's Present Action
Here, the petitioner again seeks habeas relief pursuant to 28 U.S.C. § 2241, claiming that his sentence has been unconstitutionally enhanced by two prior convictions that were evaluated under the improper version of the South Carolina statute based upon Johnson and United States v. Cornette, 932 F.3d 204, 213 (4th Cir. 2019) (doc. 1 at 2-3, 7-9, 11-14). For relief, the petitioner requests that his sentence be vacated, that this court find that his South Carolina state court priors no longer count as predicate offenses for purposes of the ACCA, and that he be re-sentenced absent the ACCA sentence enhancement (id. at 9).
STANDARD OF REVIEW
The undersigned has reviewed the petition pursuant to the Rules Governing Section 2254 Cases in the United States District Courts; the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214; and other habeas corpus statutes. As a pro se litigant, the petitioner's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The mandated liberal construction means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. However, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
The petitioner filed this action pursuant to 28 U.S.C. § 2241 (doc. 1). Because the petitioner is incarcerated in the District of South Carolina and he names the warden of FCI Bennettsville as the respondent, his § 2241 petition is properly filed in this Court. Liberally construing the petitioner's allegations, the petitioner seeks to utilize the § 2255 savings clause test in order to attack the validity of his federal sentence in light of Johnson and Cornette via the present § 2241 action (doc. 1). As set forth in more detail below, the petition should be dismissed without prejudice and without requiring the respondent to file an answer or return.
As affirmed in Wheeler, the § 2255 savings clause test is jurisdictional. United States v. Wheeler, 886 F.3d 415, 426 (4th Cir. 2018). The court may sua sponte raise subject matter jurisdiction, and the Court of Appeals has held that if a petitioner cannot meet the savings clause requirements, then the § 2241 petition “must be dismissed for lack of jurisdiction.” Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010). Because the § 2255 savings clause is a jurisdictional requirement, an analysis of whether the petitioner meets the savings clause test is appropriate for initial review under § 1915.
Unlike a § 2255 motion, which is filed in the trial and sentencing court, a § 2241 petition is filed in the district where the petitioner is incarcerated. See 28 U.S.C. § 2241(a); In re: Jones, 226 F.3d 328, 332 (4th Cir. 2000). “Generally, a § 2241 petition ‘attacks the execution of a sentence rather than its validity,' whereas a § 2255 motion ‘attacks the legality of detention.'” Rice v. Lamanna, 451 F.Supp.2d 755, 758 (D.S.C. 2006) (quoting Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)); see United States v. Miller, 871 F.2d 488, 489-90 (4th Cir. 1989) (distinguishing between attacks to the “computation and execution of the sentence rather than the sentence itself”). Thus, “defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255.” Rice v. Rivera, 617 F.3d at 807 (citing In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997)). However, § 2255 includes a savings clause, which permits a district court to consider a § 2241 petition challenging the validity of the prisoner's conviction or sentence when § 2255 is “inadequate or ineffective to test the legality of . . . detention.” 20 U.S.C. § 2255(e); Jones, 226 F.3d at 333. Accordingly, the petitioner cannot challenge his federal conviction and sentence under § 2241, unless he can satisfy the requirements of 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). In other words, as applied here, the petitioner's § 2241 action is barred unless he can demonstrate that the relief available to him under § 2255 is inadequate or ineffective. The petitioner asserts that relief under § 2255 is unavailable to him because the Fourth Circuit clarified when to use a “backward looking” inquiry evaluating state convictions under the ACCA and he has been unable to file another § 2255 motion; nevertheless, “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).
To trigger the “savings clause” of § 2255(e) and proceed under § 2241, the petitioner must meet the savings clause test as contemplated in United States v. Wheeler, 886 F.3d 415 (challenges to sentences) or In re Jones, 226 F.3d 328 (challenges to convictions).
Here, as noted, the petitioner challenges his sentence (doc. 1). The Court of Appeals has established a test for evaluating whether a petitioner may meet the savings clause under § 2255 when he contests his sentence:
[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.Wheeler, 886 F.3d at 429 (citations omitted).
The petitioner, in the present matter, argues that his sentence is unconstitutional because of Johnson and Cornette (doc. 1). The petitioner, however, cannot meet the second Wheeler factor: that “subsequent to [his] direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review.” Wheeler, 886 F.3d at 429.
Of note, this is the third time the petitioner has sought relief pursuant to § 2241 based upon Johnson. See Asar v. Barnes, C/A No. 6:20-cv-02289-BHH, 2020 WL 6292869 (D.S.C. Oct. 27, 2020); Asar v. Warden Antonelli, C/A No. 6:19-cv-01549-HMH, 2019 WL 2743842 (D.S.C. July 1, 2019), aff'd 785 Fed.Appx. 967 (4th Cir. 2019).
The petitioner appealed his sentence on December 9, 2010. Thus, important to the Wheeler analysis in the instant action is the timing of the petitioner's prior § 2255 motions. The petitioner has filed a total of four § 2255 motions: the first and second motions were denied on the merits and the third and fourth motions were denied as improper and successive. See United States v. Asar, C/A No. 7:10-cr-00429-BHH-1, at docs. 83; 107; 133; 153; 187; 201; 217. The undersigned finds that the petitioner's second § 2255 motion, filed on May 6, 2016, acts as his “first” because it was decided on the merits after the petitioner received permission to file a successive petition from the Court of Appeals. Id. at doc. 133; see In re Asar, C/A No. 16-224 (4th Cir. May 5, 2016). In denying the petitioner's May 6, 2016, motion, relying on the Fourth Circuit's decision in King, the court noted that the plaintiff's prior convictions for pointing a firearm qualified under the ACCA as crimes of violence under the force clause, even in light of the Supreme Court's holding in Johnson with respect to the residual clause of the ACCA. See United States v. Asar, 2017 WL 11444013.
Johnson was decided on June 26, 2015, and was recognized as retroactive on collateral review in Welch, which was decided on April 18, 2016. See Welch, 135 S.Ct. 1257; Johnson, 135 S.Ct. 2551. As such, the petitioner cannot meet the second prong of Wheeler with Johnson, because he has not shown that subsequent to his direct appeal (2010) and first § 2255 motion (2016) the substantive law changed and was deemed to apply retroactively on collateral review. Additionally, the other case cited by the petitioner, Cornette, does not represent a change in the law that was deemed to apply retroactively on collateral review. Cornette 932 F.3d 204. Cornette involves the consideration of a petitioner's burglary conviction under the ACCA by examining the applicable statute at the time of Cornette's conviction - as is settled law in this circuit. Id. at 211. However, King, a 2012 Fourth Circuit case that is still good law - and relied upon in denying the petitioner's 2016 § 2255 motion - forecloses the petitioner's reliance on Cornette to meet the second Wheeler factor in two ways: (1) it found that the petitioner's South Carolina pointing a firearm convictions were crimes of violence under the ACCA's ‘force clause”; and (2) had already recognized that the court considers the statute under which the individual was convicted in evaluating state law convictions under the ACCA. See King, 673 F.3d at 278; see also Asar, 2017 WL 11444013, at *3-4. In light of the foregoing, Cornette does not represent a change in the law (and also has not been held retroactive on collateral review). As such, the cases relied on by the petitioner do not meet the second factor of the Wheeler test. Further, the claims in this action are nearly identical to those in the petitioner's May 6, 2016, § 2255 motion and his May 29, 2019, and June 15, 2020, § 2241 petitions-that he should be re-sentenced in light of Johnson. Indeed, the Court of Appeals specifically allowed the petitioner the opportunity to file a successive § 2255 petition in light of the Supreme Court's decisions in Johnson and Welch. See In re Asar, C/A No. 16-224 (4th Cir. May 5, 2016). Thus, here the “petitioner is trying to take yet another ‘bite at the apple.' However, the petitioner has already had his one ‘bite at the apple.'” White v. Rivera, C/A No. 3:08-cv-3681-PMD-JRM, 2009 WL 1456712, at *8 (D.S.C. May 21, 2009) (citing In re Goddard, 170 F.3d 435 (4th Cir. 1999) (noting that normally a federal criminal defendant, after a conviction, may pursue a direct appeal and thereafter “take ‘one further bite at the apple' in a § 2255 motion”)).
In addition to the foregoing, the petitioner's assertion that he meets the fourth factor of the Wheeler test, because his sentence contains an error sufficiently grave to be deemed a fundamental defect, also fails. The petitioner's fundamental defect argument relies on his assertion that the statute under which he was convicted for his two predicate pointing a firearm offenses, SC Code § 16-23-410, was substantially different in 1992 and 1993 as compared to 2010 (doc. 1 at 7-8). The petitioner has not pointed to any cases supporting his assertion. Further, the statute referenced by the petitioner does not reflect any significant changes between 1991 (applicable in 1992), 1993, 2005 (the version of the statute considered by the Fourth Circuit in King), or 2010 (the version the petitioner asserts was relied upon in error) beyond a minor adjustment to the wording in 1993. For example, the 1991 version of the statute noted:
It shall be unlawful for any person to present or point at any other person any loaded or unloaded firearm and, upon conviction therefor, any such person shall be punished by fine or imprisonment, in the discretion of the court. Nothing contained herein shall be construed to abridge the right of selfdefense or to apply to theatricals or like performances.S.C. Code § 16-23-410 (S.C. Code Ann. 1991). The 1993, 2005, and 2010 versions of the statute are identical, noting:
It is unlawful for a person to present or point at another person a loaded or unloaded firearm.
A person who violates the provisions of this section is guilty of a felony and, upon conviction, must be fined in the discretion of the court or imprisoned not more than five years. This section must not be construed to abridge the right of self-defense or to apply to theatricals or like performances.S.C. Code § 16-23-410 (S.C. Code Ann. 1993, 2005, 2010). As such, because the statutory language has not substantially changed and the petitioner has failed to identify case law to support his assertion that the statute has substantially changed, he has failed to allege a fundamental defect to meet the fourth factor of the Wheeler test. Accordingly, the petitioner has failed to satisfy the elements of the Wheeler test to invoke the savings clause of § 2255 and challenge his sentence. Accordingly, the petitioner's § 2241 petition should be dismissed because the savings clause contained in § 2255 does not permit him to bring this § 2241 action.
RECOMMENDATION
Accordingly, it is recommended that the petitioner's § 2241 petition be dismissed without prejudice and without requiring the respondent to file a return. The petitioner's attention is directed to the important notice on the next page.
The petitioner cannot cure the deficiencies noted herein relative to the § 2255 savings clause, however, dismissal without prejudice is recommended because the Court of Appeals has held that dismissals for lack of subject-matter jurisdiction must be without prejudice. S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013).
IT IS SO RECOMMENDED.
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
250 East North Street, Room 2300
Greenville, South Carolina 29601
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).