Opinion
Case No. 2:20-cv-01353-JFA-MGB
04-21-2020
Scott W. Barnes, #97867-004, Petitioner, v. Warden W.E. Mackelburg, Respondent.
REPORT AND RECOMMENDATION
Scott W. Barnes, a pro se federal prisoner, seeks habeas corpus under 28 U.S.C. § 2241. Under 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2) (D.S.C.), the assigned United States Magistrate Judge has reviewed the petition and submits this report to the United States District Judge. For the following reasons, the undersigned recommends the petition be summarily dismissed, without prejudice, for lack of jurisdiction.
BACKGROUND
In November 2012, a jury in the Southern District of Florida found Barnes and several co-defendants guilty of (1) conspiracy to distribute and possess with intent to distribute oxycodone and/or cocaine, and (2) conspiracy to use a communication facility to facilitate a narcotics crime. See 21 U.S.C. §§ 843(b), 846. After concluding that Barnes's prior felony drug conviction did not qualify him as a career offender, the parties stipulated to an offense level of 32, a criminal history category of III, and a guidelines range of 151 to 188 months in prison. The district court sentenced Barnes to 151 months in prison and 8 years supervised release.
See Case No. 0:12-cr-6011-RNS.
Barnes appealed, challenging the sufficiency of the evidence against him—namely, wiretapped phone calls between him and co-defendant Andre Barbary—and the reasonableness of his sentence. In January 2015, the Eleventh Circuit affirmed. United States v. Holt, 777 F.3d 1234 (11th Cir. 2015), cert denied, Barnes v. United States, 136 S. C.t 98 (Mem), 2015 WL 3536204 (Oct. 5, 2015). Barnes then filed a Motion to Reduce Sentence in light of certain retroactive amendments promulgated by the United States Sentencing Commission. The district court granted Barnes's request in March 2016 and reduced his sentence to 121 months' imprisonment to run from the date of his original sentencing.
Co-defendants Nathaniel Holt, Jr., Andre Barbary, Monica Lewis, and Willie Hartfield joined in the appeal, challenging other purported errors.
Barnes then filed a Motion to Vacate under 28 U.S.C. § 2255, alleging 44 grounds for relief, including, among other claims, trial counsel's failure to object to the admission of the wiretap recordings. See Barnes v. United States, No. 12-60011-CR, 2018 WL 2770171, at *1-2, 23-24 (S.D. Fla. Mar. 28, 2018), adopted, No. 16-62416-CV, 2018 WL 2770125 (S.D. Fla. June 8, 2018). The district court ultimately denied Barnes's Motion to Vacate on the merits. 2018 WL 2770125, at *1, certificate of appealability denied, No. 18-12687-E, 2019 WL 2881405 (11th Cir. Feb. 27, 2019).
Barnes now brings this Petition for a Writ of Habeas Corpus pursuant to 28 USC § 2241, arguing that the wiretap evidence used to convict him at trial is no longer valid in light of the U.S. Supreme Court's holding in Dahda v. United States, 138 S. Ct. 1491, 200 L. Ed. 2d 842 (2018). More specifically, Barnes contends that the wiretap order exceeded the district court's territorial jurisdiction in Florida under 18 U.S.C. § 2518 because Barnes was in Atlantic City, New Jersey at the time the order was executed. Barnes further suggests that the intercepted communications were "not made in conformity with the order of authorization" because agents began recording his calls before the authorized period. (Dkt. No. 1-1 at 1, 9.) Barnes claims that he was unable to raise these arguments under Dahda prior to this action and asks that the Court vacate his conviction. (Dkt. No. 1 at 7.)
In Dahda, a judge for the District of Kansas authorized nine wiretap orders that permitted the Government to intercept communications from a listening post outside of the district. 138 S. Ct. at 1495-96; see 18 U.S.C. § 2518(3) (stating that under federal law, a judge normally may issue a wiretap order permitting the interception of communications only "within the territorial jurisdiction of the court in which the judge is sitting"). The Supreme Court explained that although 18 U.S.C. § 2518(10)(a)(ii) requires the suppression of evidence where a wiretap order is "insufficient on its face," the statute does not cover every defect that may appear on the face of a wiretap order. See Dahda, 138 S. Ct. at 1498-99 (noting that to qualify as "insufficient," the order must be so deficient as to be "lacking in what is necessary or requisite"). Because the wiretap orders were otherwise proper and contained the requisite statutory information, the Dahda Court ultimately determined that the judge's authorization of interceptions outside the District of Kansas did not render the orders facially insufficient. Id.
STANDARD OF REVIEW
This is a preliminary review of Barnes's § 2241 petition. See Rule 4, Rules Governing § 2254 Cases; see also Rule 1(b), Rules Governing § 2254 Cases (allowing district courts to apply the rules to § 2241 petitions). The narrow question before the Court is whether it "plainly appears" that Barnes is not entitled to any relief. Rule 4, Rules Governing § 2254 Cases. If so, the petition must be dismissed; if not, the warden must respond. Id. Because Barnes is pro se, the undersigned has reviewed the petition liberally. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007).
DISCUSSION
A prisoner who wants to challenge a federal conviction or sentence must do so by filing a § 2255 motion in the sentencing court. Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010). But once the prisoner has filed one unsuccessful § 2255 motion, as Barnes has, he may not file another except under narrow circumstances; specifically, he must receive permission from the appropriate court of appeals. 28 U.S.C. § 2255(h). He can get that permission only by showing either that "newly discovered evidence" proves he was innocent or that a new, previously unavailable rule of constitutional law made retroactive on collateral review by the Supreme Court entitles him to relief. Id. Unless and until he gets that permission to file, the sentencing court will lack jurisdiction over any second or successive § 2255 motion. United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003).
Barnes has already used up his first § 2255 motion. He does not assert, nor is there any indication, that he qualifies for permission to file another § 2255 motion. He instead relies on § 2255's "savings clause," which allows prisoners to challenge federal convictions and sentences through § 2241 petitions when a § 2255 motion would be "inadequate or ineffective to test the legality of [their] detention." 28 U.S.C. § 2255(e). What it takes to prove § 2255's inadequacy or ineffectiveness depends on whether the prisoner is challenging his sentence or the conviction underlying it. Compare In re Jones, 226 F.3d 328, 334-34 (4th Cir. 2000) (creating a three-part test for using the savings clause to challenge convictions) with United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018) (using Jones to make a four-part test for using the savings clause to challenge sentences), reh'g en banc denied, 734 F. App'x 892 (4th Cir. 2018), cert. denied, 139 S. Ct. 1318 (2019). Barnes cannot prove § 2255's inadequacy or ineffectiveness for either scenario.
Section 2255 is inadequate or ineffective to test a federal conviction when
(1) at the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction;Jones, 226 F.3d at 334-34 (paragraph breaks added). Here, Barnes fails to meet the second prong of this three-part test. Although Barnes seems to argue that the wiretap evidence used to convict him would have been suppressed if he had been able to present a suppression argument under Dahda, he has failed to allege that the conduct for which he was convicted has been deemed lawful by a post-conviction change in the substantive law. To be sure, this Court reached the same conclusion in deciding co-defendant Anthony Barbary's § 2241 petition, which attempted to assert the same suppression claim under Dahda. See Barbary v. Warden, Edgefield Camp, No. 9:19-cv-02996-DCC, 2020 WL 415900, at *2 (D.S.C. Jan. 27, 2020) (concluding that § 2241 petition fell short of the second prong in Jones because, notwithstanding Barbary's suppression argument under Dahda, he still failed to argue that the conduct for which he was convicted had been deemed non-criminal by a substantive law change). Because a petitioner must satisfy all three requirements under Jones in order to confer jurisdiction on the § 2241 court, Barnes cannot use the savings clause to challenge his 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.
With respect to Barnes's sentence, Section § 2255 is inadequate or ineffective to test the sentence's legality when
(1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence;Wheeler, 886 F.3d at 429 (paragraph breaks added). Barnes's petition simply does not meet these requirements. To satisfy Wheeler's second requirement, Dahda must have changed substantive law and apply retroactively on collateral review. However, this Court has held that Dahda does not meet either criterion. See Barbary, 2020 WL 415900, at *2 (finding no authority that Dahda changes the settled substantive law that established the legality of Barbary's sentence, or that Dahda applies retroactively on collateral review); see also Barbary v. United States, 769 F. App'x 888, 890 (11th Cir. 2019) (denying § 2255 motion and noting that Dahda does not apply retroactively). Because Barnes's claims are based on Dahda, they do not satisfy Wheeler's second requirement. And a sentencing-based claim cannot fit within the savings clause unless all four Wheeler requirements are met.
(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.
Like the gatekeeping restrictions on second or successive § 2255 motions, the savings clause is jurisdictional. Wheeler, 886 F.3d at 426. Because none of Barnes's claims fits within the savings clause, and because Barnes does not have permission to file the petition under review, this Court plainly lacks jurisdiction. Consequently, the petition must be dismissed. See Rice, 617 F.3d at 807.
If the petition is dismissed for lack of jurisdiction, the District Judge will need to decide whether to issue a certificate of appealability. See Rule 11(a), Rules Governing § 2254 Cases; see also Rule 1(b), Rules Governing § 2254 Cases (stating the rules may be applied to other types of habeas cases). A certificate may be issued only upon a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Where a petitioner's constitutional claims have been denied on the merits, the petitioner must demonstrate that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (citation and quotation marks omitted). Where a petitioner's constitutional claims are dismissed on procedural grounds, the petitioner must show both (1) that jurists of reason would find it debatable whether the petition states a valid claim of denial of a constitutional right, and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001). The undersigned does not see a basis for issuing a certificate in this case.
CONCLUSION
The undersigned recommends that the Court summarily dismiss the petition for lack of jurisdiction, without prejudice and without requiring the respondent to file a return, and decline to issue a certificate of appealability.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE April 21, 2020
Charleston, South Carolina 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
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).