Opinion
C/A No. 0:19-2177-RMG-PJG
09-30-2019
Brian K. Boulb, Petitioner, v. Acting Warden Vareen, FCI Edgefield, Respondent.
REPORT AND RECOMMENDATION
The petitioner, Brian K. Boulb, a self-represented federal prisoner, filed a petition for 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 Civil Rule 73.02(B)(2)(c) (D.S.C.). Having reviewed the Petition in accordance with applicable law, the court concludes that it should be summarily dismissed for lack of jurisdiction.
I. Factual and Procedural Background
Petitioner, an inmate confined in the Federal Correctional Institution in Estill, South Carolina, pled guilty in the United States District Court for the Southern District of Illinois to conspiracy to manufacture fifty grams or more of methamphetamine; possession of pseudoephedrine knowing it would be used to manufacture methamphetamine; and possession of equipment, chemicals, or material to manufacture methamphetamine. (Pet., ECF No. 1-1 at 3-4.) Petitioner was sentenced to 235 months' imprisonment (which was later reduced to 157 months' imprisonment) and four years' supervised release on February 14, 2013. (Id.) His sentence was enhanced due to two prior Illinois state drug convictions. (Id.) In 2014, Petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, raising claims that his sentence was improperly enhanced because he was at that time still challenging in state court the validity of the 2008 state conviction used to enhance his sentence, and that he was not competent to enter a guilty plea based on an intellectual disability. (Id. at 5-6.) The Southern District of Illinois dismissed Petitioner's § 2255 motion because it was untimely. (Id. at 6.)
He now files this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking to be resentenced. (Id., ECF No. 1 at 7.) He argues that because his 2008 state drug conviction has now been overturned, his federal sentence was improperly enhanced. (ECF No. 1 at 6.) He also argues that his federal guilty plea was improper because his lawyer failed to produce his mental health records showing that he had an intellectual disability and paranoid schizophrenia, which also affected his ability to timely file his § 2255 motion. (Id.) He asks to be resentenced. (Id. at 7.)
II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in this case pursuant to the Rules Governing § 2254 Cases, 28 U.S.C. § 2254; the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214; and 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, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
This court is required to liberally construe pro se pleadings, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v.Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, 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 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for "all civil actions").
B. Analysis
A petitioner cannot challenge his federal conviction and sentence through § 2241 unless he can show under the "savings clause" of § 2255(e) that a § 2255 motion is "inadequate or ineffective to test the legality of his detention." See 28 U.S.C. § 2255(e); see also Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (providing that if a federal prisoner brings a § 2241 petition that does not fall within the scope of the savings clause, the district court must dismiss the unauthorized habeas petition for lack of jurisdiction). The United States Court of Appeals for the Fourth Circuit has held that a petitioner must establish the following criteria to demonstrate that a § 2255 motion is inadequate or ineffective to test the legality of a prisoner's conviction:
(1) at the time of 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.United States v. Wheeler, 886 F.3d 415, 427 (4th Cir. 2018). Similarly, when the petitioner challenges the legality of his sentence, the Fourth Circuit provides the following test:
(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.
Here, Petitioner fails to meet either test because his claims for relief do not rely on a substantive change in the law. His claim that his sentence was improper relies on a change in the facts—that a predicate state conviction was vacated—rather than a change in the law. And his claim that his guilty plea was invalid is a direct attack on the validity of the plea process that had to be raised directly or collaterally in the Southern District of Illinois. Therefore, under Fourth Circuit precedent, he is unable to satisfy § 2255's savings clause to seek relief under § 2241.
Because Petitioner is foreclosed from bringing a § 2241 habeas petition in this court to challenge his convictions or sentences, Petitioner's remedy, if any, appears to be to seek permission to file a § 2255 motion in the court in which he was sentenced by filing a motion for leave to file a successive § 2255 motion in the United States Court of Appeals for the Seventh Circuit. See 28 U.S.C. § 2255(h). Therefore, this case should be dismissed because this court lacks jurisdiction over the Petition. See Wheeler, 886 F.3d at 426 (holding that the failure to meet the requirements of the savings clause is a jurisdictional defect that may not be waived).
But see Unthank v. Jett, 549 F.3d 534, 535-36 (7th Cir. 2008) ("If Unthank wanted to use § 2255 to argue for a lower sentence after asking a state court to vacate one or more of his prior convictions, he had only to refrain from filing a collateral attack until the state court had acted. He may have used unwisely the one § 2255 motion allowed as of right, but he did use it in 1998 and has not met the statutory requirements for an additional round of collateral review."). Also, Petitioner is warned that a statute of limitations may limit his ability to seek such relief in the Seventh Circuit. See § 2255(d); Johnson v. United States, 544 U.S. 295, 305-10 (2005) (providing that a state court order vacating his prior conviction is a matter of "fact" supporting his § 2255 claim, discovery of which triggers a "refreshed" one year limitation period under § 2255(d)(4)).
III. Conclusion
Accordingly, the court recommends that the Petition in the above-captioned case be dismissed without prejudice and without requiring the respondent to file a return. September 30, 2019
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
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
901 Richland Street
Columbia, South Carolina 29201
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).