Opinion
C/A 6:21-cv-00954-TMC-KFM
04-29-2021
John R. Davis, Petitioner, v. Warden Phelps, 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 April 1, 2021 (doc. 1). The petitioner's case is in proper form. 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 June 4, 2014, the petitioner was found guilty by a jury of conspiracy to murder an employee of the United States, conspiracy to possess with intent to distribute controlled substances, possession of a firearm in furtherance of a drug trafficking crime and aiding and abetting, possession of a firearm by a convicted felon, and attempt to distribute cocaine - a controlled substance. See United States v. Davis, C/A No. 2:13-cr-20369-BAF-MKM-1, at doc. 100 (E.D. Mich.). The petitioner was sentenced to a total of three hundred months' imprisonment, to be followed by a supervised release sentence. Id. at doc. 117. The petitioner appealed, and the Sixth Circuit affirmed his convictions and sentence. Id. at doc. 121; See United States v. Davis, C/A No. 14-2528 (6th Cir. June 24, 2016). The United States Supreme Court denied the petitioner's request for a writ of certiorari. Id.; Wilson v. United States, C/A No. 16-7005 (2017).
The court takes judicial notice of the records in the petitioner's criminal case in the Eastern District of Michigan at case number 2:13-cr-20369-BAF-MKM-1 as well as collateral attacks on his sentence filed in the Sixth 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.'”).
Petitioner's § 2255 Motions
The petitioner has filed three separate § 2255 motions. The first, filed on August 30, 2017, argued ineffective assistance of counsel (“IAC”) for failing to challenge count 5 of the indictment as duplicative as well as failing to object to the court's failure to provide an appropriate curative instruction regarding the indictment. United States v. Davis, C/A No. 2:13-cr-20369-BAF-MKM-1, at doc. 166. The court denied his motion on December 14, 2017, and a certificate of appealability was denied. Id. at doc. 169. The petitioner appealed, and the Sixth Circuit Court of Appeals granted his request for a certificate of appealability. Id. at docs. 179, 197; Davis v. United States, C/A No. 18-1196 (6th Cir. Aug. 22, 2018). Despite issuing the certificate of appealability, on June 25, 2019, the Sixth Circuit affirmed the denial of the petitioner's § 2255 motion. Davis v. United States, C/A No. 18-1196 (6th Cir. June 25, 2019).
The petitioner then filed a motion in the sentencing court on December 16, 2019, seeking relief based upon United States v. Davis, 139 S.Ct. 2319 (2019) and United States v. Rehaif, 139 S.Ct. 2191 (2019). United States v. Davis. C/A No. 2:13-cr-20369-BAF-MKM-1, at doc. 216. The petitioner then filed another motion on April 24, 2020. Id. at doc. 220. The court construed the petitioner's motions as seeking § 2255 relief; thus, they were forwarded to the Sixth Circuit Court of Appeals because only the Sixth Circuit could approve a successive § 2255 motion. Id. at docs. 219, 225; In re Davis, C/A No. 201395 (6th Cir.); In re Davis, C/A No. 20-1591 (6th Cir.).
The Sixth Circuit denied both requests for authorization to file a second or successive § 2255 motion. In re Davis, C/A No. 20-1395 (6th Cir. Feb. 17, 2021); In re Davis, C/A No. 20-1591 (6th Cir. Feb. 17, 2021). In case number 20-1591, the Sixth Circuit found that the petitioner's challenges to the indictment could have been raised prior to trial and that the petitioner's request to file a successive § 2255 did not rely upon a new rule of constitutional law. See In re Davis, C/A No. 20-1591 (6th Cir. Feb. 17, 2021). In case number 20-1395, the Sixth Circuit also noted that the petitioner was not entitled to relief under Davis because the petitioner's offense was “predicated on both a crime of violence and a drug-trafficking conspiracy, and the decision in Davis does not affect his drugtrafficking conviction.” In re Davis, C/A No. 20-1395 (6th Cir.). The court further noted that the petitioner could not seek relief under Rehaif, because, under Sixth Circuit case law, “ Rehaif is a matter of statutory interpretation, not a ‘new rule of constitutional law.'” Id. The petitioner likewise could not seek relief under the First Step Act, because it only applies to offenders sentenced prior to 2010. Id.
Petitioner's Present Action
Here, the petitioner seeks habeas relief pursuant to 28 U.S.C. § 2241, claiming that the sentencing court lacked subject matter jurisdiction over his conviction and sentence because the indictment and applicable statute did not have the same language (doc. 1 at 6-7). For relief, the petitioner requests that this court dismiss his indictment for lack of subject matter jurisdiction, dismiss count 5 of the indictment, and re-sentence him (id. at 8).
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) (percuriam). 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 Edgefield 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 conviction and sentence, arguing that the court lacked subject matter jurisdiction to charge him, 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 does not assert why relief under § 2255 is unavailable to him (although he has not successfully sought relief pursuant to § 2255 in the sentencing court); 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).
In In re Jones, the Court of Appeals held that in order to meet the savings clause under § 2255 when contesting the underlying validity of a federal criminal conviction, and seek relief under § 2241, a petitioner must show that
(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 gate-keeping provisions of § 2255 because the new rule is not one of constitutional law.In re Jones, 226 F.3d 333-34. Here, the petitioner's allegations do not satisfy the In re Jones requirements because there are no allegations that the conduct for which the petitioner was convicted is no longer criminal due to a change in the law. First, the petitioner has not asserted a change in the law subsequent to his conviction and first § 2255 motion in arguing that there was a defect in his indictment. Instead, the petitioner asserts that the sentencing court did not have subject matter jurisdiction when he was found guilty and sentenced (doc. 1 at 6-7). Additionally, to the extent the petition can be liberally construed as asserting a claim under Rehaif, the allegations do not satisfy the In re Jones requirements because there are no allegations that the conduct for which the petitioner was convicted is no longer criminal due to a change in the law. Here, one of the crimes for which the jury found the petitioner guilty was being a felon in possession of a weapon, which remains a criminal offense; thus, he cannot meet the Jones savings clause test. In Rehaif, the Supreme Court held that the Government must prove both that a defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm. Rehaif, 139 S.Ct. at 2200. Rehaif involved a jury trial-as in the instant matter. However, fatal to the petitioner's assertions in this matter are his stipulation with respect to his status as a convicted felon. The petitioner stipulated that:
It is agreed and stipulated between the undersigned counsel for the United States and the undersigned counsel for Defendant John Robert Davis, with Defendant John Robert Davis' expressed consent that [at] all times relevant to this case including February 16, 2012, the defendant, John Robert Davis, had previously been convicted in a court of a felony offense that is a crime punishable by imprisonment for a term exceeding one year.United States v. Davis, C/A No. 2:13-cr-20369-BAF-MKM-1, at doc. 135 pp. 68-69; See Christian Legal Soc'y Chapter of Univ. of Cal. v. Martinez, 561 U.S. 661, 667-78 (2010) (stating that factual stipulations “have the effect of withdrawing a fact from issue and dispensing with the need for proof of the fact” (internal quotation marks omitted)). Moreover, as noted during the petitioner's sentencing hearing, the petitioner has “a long history not only of criminal conduct . . . . This will be his 12th conviction, but of committing crimes of violence.” United States v. Davis, C/A No. 2:13-cr-20369-BAF-MKM-1, at doc. 125 pp. 15-16; see United States v. Davis, C/A No. 2:13-cr-20369-BAF-MKM-1, at doc. 115 p. 10 (detailing the petitioner's criminal history, including a prior conviction for carrying a concealed weapon). Accordingly, the petitioner cannot challenge the validity of his convictions utilizing the savings clause under § 2241.
To the extent the petitioner's argument regarding defects in the indictment is intended as asserting an “actual innocence” claim, the petitioner's claim still fails. Cognizable claims of “actual innocence” are rare, and must be based on “factual innocence not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998); see also United States v. Pettiford, 612 F.3d 270, 282 (4th Cir. 2010) (noting that to succeed on actual innocence grounds a petitioner must show that he “did not commit the crime of which he was convicted; this standard is not satisfied by a showing that a petitioner is legally, but not factually, innocent”). By making the argument of “actual innocence, ” the petitioner seeks to obtain review of his claims by showing that his case falls into the “narrow class of cases implicating a fundamental miscarriage of justice.” Cornell v. Nix, 119 F.3d 1329, 1333 (8th Cir. 1997). In the present matter, the petitioner's actual innocence claim is facially inadequate because he has not “supported] his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Instead, the petitioner argues that his indictment was deficient. In light of the foregoing, the petitioner has not satisfied the requirements for a valid innocence claim relating to his convictions. Accordingly, the petitioner cannot use “actual innocence” to bypass the gatekeeping requirements of § 2255 and use the present § 2241 petition to seek § 2255 relief via that statute's savings clause.
Secondly, to the extent the petitioner's § 2241 could be liberally construed as a challenge to the sentence he received for his convictions, the petition does not meet the Wheeler test, which sets forth when a petitioner may meet the savings clause under § 2255 to contest his sentence. The Court of Appeals noted that:
[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.United States v. Wheeler, 886 F.3d at 429 (citations omitted).
The petitioner, in the present matter, argues that his sentence is unconstitutional and should be vacated and set aside because the sentencing court lacked subject matter jurisdiction to impose his sentence (doc. 1 at 6-7). Liberally construed, he may also assert challenges to his sentence based upon Davis and Rehaif. The petitioner, however, cannot meet the second Wheeler factor with respect to any of his grounds for relief: 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.
The petitioner filed a direct appeal in 2016. The petitioner's first § 2255 motion was filed on August 30, 2017, and denied on December 14, 2017. United States v. Davis, C/A No. 2:13-cr-20369-BAF-MKM-1, at docs. 166, 169. However, upon reviewing the petitioner's request for a second or successive § 2255 motion, the Sixth Circuit addressed the merits of the petitioner's arguments with respect to Rehaif and Davis. In re Davis, C/A No. 20-1395 (6th Cir.). As such, for purposes of the petitioner's claims regarding Rehaif and Davis, the petitioner's first § 2255 motion was filed in December 2019 and decided February 17, 2021. In re Davis, C/A No. 20-1395 (6th Cir.).
First, the petitioner's arguments regarding defects in his indictments do not assert a change in the law made retroactive on collateral review. Further, neither Rehaif nor Davis provide relief for the petitioner in this matter. Rehaifwas decided by the Supreme Court on June 21, 2019. Rehaif, 139 S.Ct. 2191. As such, Rehaif was decided before the petitioner's first § 2255 motion with respect to Rehaif. However, even if Rehaif were decided after the petitioner's first appeal and § 2255 motion, Rehaif has been held as a matter of statutory interpretation, not a “new rule of constitutional law.” In re Davis, C/A No. 20-1395 (6th Cir. Feb. 17, 2021) (citing Khamisi-El v. United States, 800 Fed.Appx. 344, 349 (6th Cir. 2020) (quoting In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019))). Additionally, to date, Rehaif has not been held to be retroactive on collateral review by the sentencing circuit. See United States v. Gray, C/A 1:16-cr-322, 2021 WL 1534821, at *4 (N.D. Ohio Apr. 19, 2021) (recognizing that courts throughout the Sixth Circuit have recognized “that Rehaif does not apply retroactively to cases on collateral appeal”) (internal citations omitted). As such, the petitioner cannot rely on Rehaif to meet the second Wheeler factor.
Of note, to date the Fourth Circuit has also not recognized Rehaif as retroactive on collateral review.
Likewise, the petitioner cannot rely on Davis to satisfy the second Wheeler factor. Davis was decided in June 2019, and was recognized as retroactive on collateral review by In re Franklin, 950 F.3d 909, 911 (6th Cir. 2020). As noted above, Davis was decided before the petitioner's first § 2255 motion with respect to Davis. However, as found by the Sixth Circuit in evaluating the petitioner's second or successive § 2255 motions, the petitioner's § 924(c) offense was “predicated on both a crime of violence and a drugtrafficking conspiracy;” thus, Davis does not affect the petitioner's drug-trafficking conviction. In re Davis, C/A No. 20-139591 (6th Cir. Feb. 17, 2021). As such, in light of the foregoing, the petitioner cannot meet the second prong of Wheeler, because he has not shown that subsequent to his direct appeal and first § 2255 motion (with respect to each issue raised), there was a change in the substantive law of the sentencing court that was deemed to apply retroactively on collateral review. Accordingly, the petitioner has failed to satisfy the elements of the Court of Appeal's Wheeler test to invoke the savings clause of § 2255 and challenge his sentence. As such, 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 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 Fourth Circuit 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 300 East Washington Street, Room 239 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).