Opinion
C/A 1:21-3780-TLW-SVH
06-15-2022
Demario Covington, Petitioner, v. Nanette Barnes, FCI Bennettsville Warden, Respondent.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
Demario Covington (“Petitioner”), proceeding pro se, is incarcerated by the Bureau of Prisons (“BOP”) at Federal Correctional Institution Bennettsville in Bennettsville, South Carolina. He filed the instant 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)(1)(B) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's motion to dismiss for lack of jurisdiction. [ECF No. 22]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [ECF No. 23]. Petitioner filed a response on April 27, 2022. [ECF No. 27]. For the following reasons, the undersigned recommends the district judge grant Respondent's motion to dismiss.
I. Factual and Procedural Background
On March 22, 2011, the government indicted Petitioner as part of nineteen-count indictment against Petitioner and others. ECF No. 3, United States v. Covington, Case No. 4:11-417-TLW (D.S.C.) (“Sentencing Docket”).In Count One of the Indictment, Petitioner was charged with conspiracy to possess with intent to distribute and to distribute five kilograms or more of cocaine and 280 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Id. In Count Two of the indictment, Petitioner was charged with possession with intent to distribute and distribution of a quantity of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Id. On May 15, 2012, Petitioner pled guilty to Count One pursuant to a written plea agreement. Id., ECF Nos. 634-35, 637. On August 14, 2012, Petitioner filed pro se motions to withdraw his guilty plea and to remove counsel and have new counsel appointed. Id., ECF Nos. 710, 711. His motion to withdraw his guilty plea was denied, but his motion to have new counsel appointed was granted. Id., ECF No. 727. After the United States Probation Office prepared a Presentence Investigation Report (“PSR”),Petitioner and the Government entered an addendum to the plea agreement with a stipulated sentence of thirty-five years' imprisonment. Id., ECF No. 770. On December 13, 2012, the court sentenced Petitioner to 420 months' imprisonment to be followed by ten years of supervised release. Id., ECF No. 777.
The court takes judicial notice of Petitioner's prior cases. See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“The most frequent use of judicial notice of ascertainable facts is in noticing the content of court records.”) (citation omitted).
As noted by Respondent, “based upon a total offense level of 43 and a criminal history category of VI, the PSR calculated [Petitioner's United States Sentencing] Guidelines sentencing range as life imprisonment.” ECF No. 22-1 at 3 (citing PSR ¶ 174). Respondent further noted Petitioner's “status as career offender triggered a criminal history category of VI, [but] his total number of criminal history points were sufficient to place him in that same criminal history category, even without the career offender designation.” Id.
Thereafter, Petitioner appealed the denial of his motion to withdraw his guilty plea. Id., ECF Nos. 780, 871. The Fourth Circuit affirmed Petitioner's conviction and sentence, finding the district court did not abuse its discretion in denying the motion to withdraw the guilty plea. Id., ECF No. 871.
On December 10, 2014, Petitioner filed a pro se motion to vacate his sentence under 28 U.S.C. § 2255, alleging ineffective assistance of counsel. Id., ECF No. 920. In July 2015, Petitioner filed a pro se motion to amend his § 2255 petition and add additional claims of ineffective assistance of counsel. Id., ECF No. 979. In an order filed April 13, 2016, the court denied both Petitioner's motion to amend and his § 2255 petition. Id., ECF No. 1050. Petitioner filed a motion to alter or amend the judgment, which was also denied. Id., ECF Nos. 1066, 1133. Petitioner appealed to the Fourth Circuit the denial of his § 2255 petition and the motion to alter or amend, but the appeal was dismissed. Id., ECF Nos. 1061, 1150.
In May 2015, while his § 2255 petition was pending, Petitioner filed a pro se motion to reduce his sentence under 18 U.S.C. § 3582(c)(2) because the United States Sentencing Guidelines (“Guidelines”) sentencing range had subsequently been lowered and had been made retroactive. Id., ECF Nos. 960, 1002. However, the court denied the motion because Petitioner's “sentence was based on a Rule 11(c)(1)(C) agreement to 420 months incarceration, rather than the Guidelines[,]” and additionally, “there was a cross-reference to a more severe guideline, specifically § 2A1.1 (First Degree Murder).” Id., ECF No. 1002. Petitioner appealed the court's decision, but the Fourth Circuit affirmed. Id., ECF Nos. 1005, 1026.
On July 11, 2018, Petitioner filed a motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). Id., ECF No. 1180. In April 2019, Petitioner filed a motion to reduce his sentence based on the First Step Act of 2018. Id., ECF No. 1183. In July 2019, Petitioner filed another motion to reduce his sentence based on the First Step Act of 2018. Id., ECF No. 1193. On June 24, 2020, the court denied Petitioner's motion to reduce his sentence under 18 U.S.C. § 3582(c)(2), finding “[t]his case does not qualify because there was a crossreference to a more severe guideline, specifically § 2A.1.1 (First Degree Murder)[,]” and “even if the cross-reference did not apply, the Chapter Two calculations would have been trumped by the Chapter Four enhancements because Defendant is a career offender.” Id., ECF No. 1200. Also, on June 24, 2020, the court denied one of Petitioner's motions to reduce his sentence under the First Step Actand found the other to be moot. Id., ECF No. 1201. Petitioner appealed the court's denial of his motions to have his sentence reduced, but the Fourth Circuit denied the appeals. Id., ECF Nos. 1203, 1223.
The court noted Petitioner was “ineligible for relief pursuant to § 404(c) of the First Step Act ....” Sentencing Docket, ECF No. 1201.
On January 11, 2021, Petitioner filed a motion for compassionate release, which was denied by the court on August 20, 2021. Id., ECF Nos. 1218, 1230. Petitioner appealed the court's decision, but his appeal was denied by the Fourth Circuit. Id., ECF Nos. 1232, 1237.
Petitioner filed the current action on November 18, 2021, asserting he was improperly sentenced as a career offender in light of Mathis v. United States, 579 U.S. 500 (2016).
II. Discussion
A. Standard on Motion to Dismiss
Dismissal is appropriate under Fed.R.Civ.P. 12(b)(1) where the court lacks subject-matter jurisdiction and under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(1) examines whether a pleading fails to state facts upon which jurisdiction can be founded. It is the petitioner's burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the petition. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “a [petition] must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a [petition].” Edwards, 178 F.3d at 244. Indeed, “[t]he presence of a few conclusory legal terms does not insulate a [petition] from dismissal under Rule 12(b)(6) when the facts alleged in the [petition] cannot support the legal conclusion.” Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
B. Habeas Corpus Standard of Review
Under established local procedure in this judicial district, a careful review has been made of this petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and other habeas corpus statutes. Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
C. Analysis
“[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)). In contrast, a petition filed under § 2241 is typically used to challenge the manner in which a sentence is executed. See In re Vial, 115 F.3d at 1194 n.5. A 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 Rice, 617 F.3d at 807 (finding courts lack jurisdiction over § 2241 petition outside savings clause).
To show § 2255 is inadequate or ineffective to address a defective sentence, a petitioner must demonstrate:
(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.U.S. v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018).
Respondent argues the court lacks jurisdiction to consider Petitioner's § 2241 petition, as he fails to satisfy either the second or the fourth prongs of the Wheeler test and thus cannot show § 2255 is inadequate to test his sentence. The undersigned agrees the Petitioner has not demonstrated the requirements of Wheeler have been met.
1. Whether Mathis is a Change in Settled Substantive Law Deemed to Apply Retroactively on Collateral Review
Petitioner challenges his career offender status in light of Mathis, a 2016 Supreme Court case “in a long line of cases attempting to clarify the application of the categorical and modified categorical approaches to deciding when a prior conviction is properly counted as a predicate offense.” Graham v. United States, 276 F.Supp.3d 509, 513 (D.S.C. 2017); [see also ECF No. 8 at 12-13]. Respondent contends Petitioner cannot meet the second prong of Wheeler to the extent he relies on Mathis because that case did not change the substantive law of the Supreme Court or the Fourth Circuit. [ECF No. 22-1 at 6-7].
Petitioner also references Descamps v. United States, 570 U.S. 254 (2013), in his arguments that he was improperly sentenced as a career offender. However, because Descamps was decided prior to Petitioner's first § 2255 motion, Petitioner cannot meet the second prong of Wheeler even if the court were to find Descamps was a change in the settled substantive law deemed to apply retroactively.
Recently, the Fourth Circuit held Mathis did not change the settled substantive law of the Supreme Court or of the Fourth Circuit as it pertains to South Carolina third-degree burglary. Ham v Breckon, 994 F.3d 682, 692, 695 (4th Cir. 2021). In Ham, the Fourth Circuit agreed with the parties that “Mathis was merely restating an old rule. . . . Mathis did not change the settled substantive law of the Supreme Court with regard to when a court should apply the categorical or modified categorical approach.” Id. at 692. The Fourth Circuit also compared how Ham's predicate offense of third-degree burglary had been treated in this circuit pre- and post-Mathis and ultimately concluded the case had not changed the settled law. Id. at 695 (“We decline to hold that Mathiss explanation about how to determine whether parts of a statute are ‘elements or means' changed this circuit's substantive law applying the modified categorical approach to South Carolina third degree burglary.”). Similarly, here, Petitioner has failed to demonstrate Mathis changed the settled substantive law with regard to his predicate offenses. See, e.g., United States v. Montes-Flores, 736 F.3d 357, 368-69 (4th Cir. 2013) (finding the district court had erred in “employing the modified categorical approach to determine whether [Montes-Flores's] ABHAN conviction was for a ‘crime of violence'” and then applying the categorical approach and concluding “a conviction for ABHAN is not categorically for a crime of violence”), superseded on other grounds by statute, S.C. Code Ann. §§ 16-3-29, 16-3-600. In accordance with Ham, Petitioner cannot meet the second prong of Wheeler
There is also some support for the argument that Petitioner cannot meet the second prong of Wheeler because Mathis has not been deemed retroactive on collateral review by the Supreme Court or the Fourth Circuit. See Copeland v. Kassell, 733 Fed.Appx. 717 (4th Cir. Aug. 8, 2018) (per curiam) (finding petitioner failed to satisfy the “test in Wheeler, because Mathis has not been deemed to apply retroactively on collateral review”); Walker v. Kassel, 726 Fed.Appx. 191, 192 (4th Cir. June 13, 2018) (per curiam) (stating Mathis “has not been held retroactively applicable on collateral review, so [petitioner] may not proceed under § 2241”). Respondent did not make such an argument here.
Accordingly, Petitioner has not alleged a retroactively-applicable change in relevant substantive law subsequent to his first § 2255 motion and therefore fails to meet the § 2255 savings clause requirements.
2. Whether There Exists an Error Sufficiently Grave to Be Deemed a Fundamental Defect
Respondent also argues there is no jurisdiction because Petitioner cannot meet the fourth prong of Wheeler. That is, even if Mathis were a retroactive change in settled substantive law, Petitioner cannot show his sentence “now presents an error sufficiently grave to be deemed a fundamental defect.” Wheeler, 886 F.3d at 429.
Initially, the undersigned recognizes Fourth Circuit case law that a misclassification as a career offender can be a fundamental defect if the sentencing occurred prior to United States v. Booker, 543 U.S. 220, 245 (2005), when the Guidelines were mandatory. Lester v. Fluornoy, 909 F.3d 708, 715 (4th Cir. 2018). However, “a ‘fundamental defect or a complete miscarriage of justice' has not occurred where the petitioner was sentenced as a career offender ‘under an advisory Guidelines scheme.'” Braswell v. Smith, 952 F.3d 441, 450 (4th Cir. 2020) (quoting United States v. Foote, 784 F.3d 931, 932, 941 (4th Cir. 2015)) (finding a petitioner had met the fourth Wheeler prong “based on the increase in his mandatory minimum, not on his career offender designation”); see also Kornegay v. Warden, FCI Butner, No. 13-7565, 2019 WL 258720, at *1 (4th Cir. Jan. 17, 2019) (affirming a district court's order denying § 2241 relief because petitioner “was sentenced under the advisory Guidelines and Foote bars his petition”); Peacock v. Bragg, C/A No. 2:18-1987-HMH-MGB, 2019 WL 1499270, at *4 (D.S.C. Apr. 5, 2019) (“In this case, Peacock was sentenced in 2008, after Booker rendered the [Guidelines] advisory only. Thus, Peacock's [Guidelines] sentencing range was considered advisory only, and the sentencing court had discretion in determining Peacock's sentence based on the factors in 18 U.S.C. § 3553(a). Moreover, the sentencing court imposed a below-guidelines sentence of 205-months' imprisonment. Accordingly, Peacock's sentence, imposed under the advisory [Guidelines], does not present a fundamental defect under Wheeler”; United States v. Robinson, C/A No. 0:08-401-CMC, 2020 WL 1536224, at *2 (D.S.C. Mar. 31, 2020) (“[A]s Defendant was sentenced under the advisory, not mandatory, Sentencing Guidelines, his sentence does not present an error so grave as to be a fundamental defect.”); Goodwin v. Mackelburg, C/A No. 0:19-1816-HMH-PJG, 2019 WL 4784411, at *4 (D.S.C. Oct. 1, 2019), affd, No. 197500, 2020 WL 1910479 (4th Cir. Apr. 20, 2020) (“Goodwin was sentenced under the advisory [Guidelines]. Consequently, Goodwin cannot satisfy the fourth prong of the savings clause test under Wheeler because there is no fundamental defect in his sentencing.”). Because he was sentenced in 2012 and post-Booker, Petitioner has not shown his designation as a career offender is an error that rises to the level of a fundamental defect.
Moreover, according to Respondent, a change in Petitioner's status as a career offender would have no effect on the sentencing Guidelines because: (1) Petitioner's total offense level of 49 “was not driven by his career offender designation, but by the combination of the murder cross reference, and the enhancements for [his] role in the offense and obstruction of justice[,] . . . [and an] offense level of 43 triggers a Guidelines range of life imprisonment regardless of criminal history category[;]” and (2) Petitioner's “total number of criminal history points was sufficient to place him in the highest criminal history category of VI even without the career offender designation.” [ECF No. 22-1 at 7]. Thus, Respondent contends, even without the career offender designation, Petitioner's Guidelines range would have been life imprisonment. Furthermore, Petitioner received a sentenced below his Guidelines range based on an 11(c)(1)(C) stipulation, and that, too, was unaffected by his career offender designation.
In Response, Petitioner offers that the charges of accessory before- and after-the-fact of murder and of criminal conspiracy to commit murder were dismissed due to lack of evidence. [ECF No. 27 at 3]. Thus, he believes the cross-reference does not apply. He has provided a 2013 letter from an assistant solicitor stating the murder-related charges would likely be dismissed “due to lack of evidence; probable cause existed to obtain the warrants based on an informant's statement, but there is insufficient evidence to convict at this time.” [ECF No. 27-1 at 2]. However, Petitioner has not offered any case law to support his argument the cross-reference should not apply in his case. Cf United States v. Manduley, 585 Fed.Appx. 1001, 1005 (11th Cir. 2014) (affirming a district court that considered conduct underlying a murder charge, of which defendant was acquitted, for purposes of applying a cross-reference at sentencing when such conduct was proven by a preponderance of the evidence); Dixon v. United States, Civil Action No. 2:16-00780, 2017 WL 9532902, at * 5 n.3 (S.D. W.Va. Oct. 12, 2017) (“It is well established, however, that conduct underlying dismissed counts, uncharged conduct, and acquitted conduct can be used as relevant conduct in determining a defendant's base offense level.” (citing United States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994))).
As demonstrated by Respondent's arguments, Petitioner's Guidelines range was life imprisonment based on multiple aspects of the PSR and independent of his status as a career offender. Thus, the alleged error in this matter is not sufficiently grave to be a fundamental defect. Cf Lester v. Flournoy, 909 F.3d 708, 716 (4th Cir. 2018) (“Where, as here, an erroneous career offender designation raises a defendant's mandatory prison term from a maximum of 12 1/2 years to a minimum of almost 22, the resulting sentence is fundamentally defective.”). Petitioner has not satisfied the fourth prong of Wheeler.
For all of the above reasons, Petitioner's claim does not fit within the savings clause. As such, this court lacks jurisdiction to consider the petition. Wheeler, 886 F.3d at 426.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Respondent's motion to dismiss and dismiss the petition without prejudice.
See Platts v. O'Brien, 691 Fed.Appx. 774, (modifying a district court's order to dismiss a § 2241 petition without prejudice where the district court correctly determined it lacked jurisdiction (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 RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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).