Opinion
C. A. 9:21-03409-DCC-MHC
05-04-2022
Jermaine Aquarius Edison, Petitioner, v. Warden, FCI Edgefield, Respondent.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
The pro se Petitioner, Jermaine Aquarius Edison, a federal inmate at FCI-Edgefield, brings this action as an application for writ of habeas corpus (Petition) pursuant to 28 U.S.C. § 2241. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
I. BACKGROUND
Petitioner's ground for bringing this Petition is that his “prior convictions do not qualify him as a career offender requiring resentencing without the career offender enhancement.” Petition, ECF No. 1 at 6. On September 11, 2012, Petitioner and a co-defendant were charged in the United States District Court for the District of Minnesota in a seven-count indictment. Petitioner pled guilty to conspiracy to distribute 500 grams or more of cocaine, 28 grams or more of cocaine base (crack cocaine), and a quantity of Ecstasy in violation of 28 U.S.C. §§ 841(b)(1)(B), and 846. In a written plea agreement, Petitioner stipulated that he faced a ten-year mandatory minimum sentence due to a qualifying prior drug conviction and that he qualified as a career offender for purposes of the sentencing guidelines. On August 28, 2013, Petitioner was sentenced to 176 months' imprisonment. See United States v. Edison, 756 F.3d 638, 639-640 (8th Cir. 2014), cert denied, 574 U.S. 967 (2014); see also United States v Edison, No. 0:12-cr-00225-DWF-FLN-1 (D. Minn.), Doc. No. 91. Petitioner asserts that he was sentenced as a career offender based on two prior felony convictions of first-degree assault on August 8, 1998, and an attempt to distribute in excess of 5 grams of cocaine base on March 5, 2001. Petitioner's Memorandum, ECF No. 1-1 at 19.
A federal court may take judicial notice of the contents of its own records, as well as those records of other courts. See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (noting that courts may take judicial notice of other courts' records and proceedings).
The United States Court of Appeals for the Eighth Circuit affirmed Petitioner's sentence on June 26, 2014. It was noted that Petitioner qualified as a career offender because, at the time he committed the offense, he (1) was over the age of 18, (2) pled guilty to a felony-controlled substance offense, and (3) had at least two prior felony convictions for either a crime of violence or a controlled substance offense. See United States v. Edison, 756 F.3d at 639 n. 1, 641; see U.S.S.G. 4B1.1(a) (“ A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.”).
On April 6, 2015, Petitioner submitted a motion seeking reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2). The Court denied the motion, finding that Amendment 782 to the Sentencing Guidelines, which revised the Drug Quantity Table under U.S.S.G. § 2D1.1 and lowered the advisory guidelines for certain drug offenses, did not lower the sentencing range established for a career offender. See United States v. Edison, No. 0:12-cr-00225-DWF-FLN, Docs. 109, 123.
On June 23, 2016, Petitioner filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence in which he argued that he was not a career offender. Id., Doc. 125. Petitioner moved to voluntarily dismiss, and the sentencing court (in an amended order) dismissed the § 2255 motion without prejudice on April 7, 2017. Id., Docs. 131, 134. Petitioner filed a second motion pursuant to § 2255, which the sentencing court denied as time-barred and duplicative on May 14, 2020. See United States v. Edison, No. CR 12-225 (DWF), 2020 WL 2490172 (D. Minn. May 14, 2020).
Petitioner filed requests for compassionate release from custody due to the COVID-19 pandemic in May and June 2020, and the sentencing court denied his requests on July 9, 2020. See United States v. Edison, No. CR 12-225 (DWF), 2020 WL 3871447 (D. Minn. July 9, 2020), reconsideration denied, 2021 WL 51031 (D. Minn. Jan. 6, 2021). On March 24, 2021, the sentencing court denied Petitioner's motion for reduction of sentence under the First Step Act (FSA) of 2010 and 18 U.S.C. § 3582(C)(1)(B), in which Petitioner claimed that he did not receive the benefit of the FSA's sentence reductions for crack cocaine at the time of his 2013 sentencing. The sentencing court found that Petitioner's indictment, presentence report, and sentencing judgment all reflected that he received the benefit of the FSA's changes. United States v. Edison, No. 0:12-cr-00225-DWF-FLN, Docs. 187, 193.
In this Petition, Petitioner's ground for relief is that his prior convictions do not qualify him as a career offender such that he should be resentenced without the career offender enhancement. ECF No. 1 at 6. In his Memorandum, Petitioner appears to argue that he no longer qualifies as a career offender because his prior conviction for attempt to distribute in excess of 5 grams of cocaine base no longer qualifies as a controlled substance offense and his prior conviction for assault in the first degree does not qualify as a crime of violence. See ECF No. 1-1 at 18-34.
II. STANDARD OF REVIEW
A pro se habeas petition is reviewed pursuant to the procedural provisions of the Rules Governing Section 2254 Proceedings in the United States District Court, 28 U.S.C. § 2254; the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996; 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); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). The Court screens a petitioner's lawsuit to determine “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court[.]” Rule 4 of Rules Governing Section 2254 Cases in the United States District Courts.
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b), Rules Governing § 2254 Cases, 28 U.S.C.A. foll. § 2254.
Pro se petitions are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even when considered under this less stringent standard, for the reasons set forth below, the Petition submitted in this case is subject to summary dismissal.
III. DISCUSSION
It is recommended that this Petition be dismissed because this Court lacks jurisdiction over the § 2241 Petition. Congress requires every federal prisoner who collaterally attacks his conviction to employ the motion mechanism provided in 28 U.S.C. § 2255. However, there is one exception-if § 2255 appears “inadequate or ineffective,” then § 2255(e) provides that a federal prisoner may apply for a writ of habeas corpus under § 2241. Farkas v. Butner, 972 F.3d 548, 550 (4th Cir. 2020). This mechanism has been referred to as the “savings clause” exception. Id.
To trigger the “savings clause” of § 2255(e) and proceed under § 2241, a petitioner must meet the savings clause test as contemplated in In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000) (challenges to convictions) or United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018) (challenges to sentences). Significantly, the savings clause is a “jurisdictional provision.” Wheeler, 886 F.3d at 423. Thus, if a petitioner cannot meet one of the Jones or Wheeler requirements, then the § 2241 petition must be dismissed for lack of jurisdiction. See Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010).
Petitioner appears to challenge the legality of his sentence, not the legality of his conviction. In the Fourth Circuit, to demonstrate that a § 2255 motion is inadequate or ineffective to test the legality of a sentence, a petitioner must show that:
In the Fourth Circuit, to demonstrate that a § 2255 motion is inadequate or ineffective to test the legality of a conviction, 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 gatekeeping provisions of § 2255 because the new rule is not one of constitutional law.In re Jones, 226 F.3d at 333-34. Here, Petitioner does not challenge the legality of his conviction such that the Jones test is not applicable. Even if he is attempting to challenge the legality of his conviction, Petitioner has not alleged that he has met all three prongs of the test set out in Jones. Specifically, Petitioner has not alleged that he meets the second prong of the Jones test, that subsequent to his direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which he was convicted is deemed not to be criminal.
(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. Here, Petitioner has not alleged that he has met all four prongs of the test set out in Wheeler.
In his Petition, (ECF No. 1 at 5), Petitioner recites a test to determine whether § 2255 is inadequate or ineffective to challenge a conviction or sentence, which appears to be based on Sixth Circuit law as recited in Hill v. Masters, 836 F.3d 591, 594-595 (6th Cir. 2016). Although Petitioner notes the test set out in Wheeler in his memorandum (ECF No. 1-1 at 8-9), he later discusses an “actual innocence” test articulated in Third Circuit cases, citing Bruce v. Warden Lewisburg USP, 868 F.3d 170 (3d Cir. 2017) and In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). ECF No. 1-1 at 11. He also argues, citing Hill and Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013), that this Court should “follow persuasive precedent from the Sixth and Seventh Circuits and hold that savings clause jurisdiction encompasses actual innocence of a mandatory career offender enhancement that has been rendered invalid by intervening, retroactive Supreme Court precedent.” Id. However, in evaluating a § 2241 petition brought pursuant to the savings clause, this court applies Fourth Circuit procedural law (the Wheeler test outlined above) and looks to the substantive law of the circuit where the defendant was convicted (here, the Eighth Circuit). See Hahn v. Moseley, 931 F.3d 295, 301 (4th Cir. 2019) (“In evaluating substantive claims under the savings clause,” a district court must “look to the substantive law of the circuit where a defendant was convicted.”); Ponder v. United States, 800 Fed.Appx. 181, 183 (4th Cir. Jan. 30, 2020) (noting that in reviewing a § 2241 denial by a district court, the Fourth Circuit applies Fourth Circuit procedural law, but “look[s] to the substantive law of the circuit where a defendant was convicted”) (citing Hahn, 931 F.3d at 301). Thus, the procedural law set out in Wheeler, not the Sixth or Third
Petitioner argues “actual innocence.” However, 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). Notably, “actual innocence applies in the context of habitual offender provisions only where the challenge to eligibility stems from factual innocence of the predicate crimes, and not from the legal classification of the predicate crimes.” United States v. Pettiford, 612 F.3d 270, 284 (4th Cir. 2010). In the present matter, Petitioner does not contend that he is actually innocent of the offense to which he pleaded guilty or that he was factually innocent of the predicate crimes, only that the sentencing court erroneously classified him as a career offender. Thus, Petitioner's claims plainly fall short of actual innocence. See Knight v. Warden, FCI Beckley, No. 5:20-cv-00329, 2021 WL 3361698, at *12 (S.D. W.Va. Apr. 29, 2021), report and recommendation adopted, 2021 WL 3355508 (S.D. W.Va. Aug. 2, 2021) (rejecting petitioner's actual innocence claim where he argued “only that he was erroneously classified as a career offender” with respect to his conviction under § 846); see also Pettiford, 612 F.3d at 282 (explaining that to succeed on actual innocence grounds a petitioner must show that he “did not commit the crime of which he was convicted”).
Circuit tests referenced by Petitioner, applies in this case.
Petitioner cannot meet the second prong of the Wheeler test because he has not alleged 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. Petitioner asserts that his Petition is based on the Sixth Circuit's decision in United States v. Havis, 927 F.3d 382 (6th Cir. 2019). See ECF No. 1-1 at 22. In Havis, the Sixth Circuit held that the guideline definition of “controlled substances offense” did not include attempt crimes because the Sentencing Commission overstepped its authority when it expanded the applicability of USSG § 4B1.2(b) in the commentary thereto to include attempt offenses without subjecting the rule to congressional review or notice and comment. Id. at 386-87. However, Havis, which was a direct appeal, has not been determined to be retroactive on collateral review. See, e.g., Bullard v. United States, 937 F.3d 654, 661 (6th Cir. 2019) (noting that a petitioner “cannot use § 2255-or our decision in Havis- to attack collaterally his designation as career offender under the Sentencing Guidelines.”); Cain v. United States, No. 2:09-cr-031, 2020 WL 3513417, at *3 (E.D. Tenn. June 29, 2020) (“Were Petitioner sentenced today, Havis might well dictate that he is not a career offender. ‘But Petitioner cannot invoke Havis to attack the qualifying status of this conviction (or any conviction) in the current proceeding which is a collateral attack on his conviction and sentence.'”) (citing Church v. United States, No. 3:17-CV-00972, 2020 WL 1703864, at *10 (M.D. Tenn. Apr. 8, 2020)); Chapman v. Terris, No. 19-11247, 2019 WL 5733708, at *2 (E.D. Mich. Nov. 5, 2019) (Havis “has not been made retroactive to cases on collateral review”); Hubbard v. Hudgins, No. 3:19CV188, 2022 WL 483192, at *6 n. 6 (N.D. W.Va. Jan. 11, 2022) (§ 2241 petition, noting that Havis is not retroactive), report and recommendation adopted, 2022 WL 482545 (N.D. W.Va. Feb. 16, 2022). Additionally, Havis is a Sixth Circuit opinion and Petitioner has pointed to nothing to show that this is controlling substantive law in the Eighth Circuit.
Additionally, even if Petitioner could meet the second prong of the Wheeler test, he has not alleged that he can satisfy the fourth prong of Wheeler (which requires a showing that his sentence now presents an error sufficiently grave to be deemed a fundamental defect). Because Petitioner was sentenced post-Booker, pursuant to the advisory rather than mandatory Sentencing Guidelines, the alleged misclassification as a career offender is not an error sufficiently grave to be deemed a fundamental defect. See Lester v. Flournoy, 909 F.3d 708 (4th Cir. 2018) (finding a determination that a misclassification as a career offender can be a fundamental defect if the sentencing occurred pre-Booker, but noting that if Lester's career offender misclassification occurred under the post-Booker advisory Guidelines, his petition would have been barred as failing to meet the fourth Wheeler prong); see also Braswell v. Smith, 952 F.3d 441, 450 (4th Cir. 2020) (“Appellant was deemed a career offender under an advisory Guidelines scheme; thus, to the extent Appellant bases his Wheeler claim on his career offender designation, he does not satisfy prong four.”). In United States v. Foote, 784 F.3d 931 (4th Cir. 2015), the Fourth Circuit held that “sentencing a defendant pursuant to advisory Guidelines based on a career offender status that is later invalidated does not meet [the] remarkably high bar” for habeas relief. 784 F.3d at 936. Petitioner may attempt to argue that he meets the forth prong of Wheeler based on Havis. However, a challenge to a career offender enhancement pursuant to Havis does not present a fundamental defect cognizable on collateral review. See Rodriguez v. Hudgins, No. 5:20-CV-215, 2021 WL 259441 (N.D. W.Va. Jan. 26, 2021) (“a challenge to career offender enhancement under Havis does not present a fundamental defect cognizable on collateral review”).
United States v. Booker, 543 U.S. 220 (2005).
Thus, this action is subject to summary dismissal for lack of jurisdiction because Petitioner cannot satisfy the savings clause in 28 U.S.C. § 2255(e) pursuant to the tests articulated in Jones and Wheeler. See Habeck v. United States, 741 Fed.Appx. 953, 954 (4th Cir. 2018) (“The requirements of the § 2255(e) savings clause are jurisdictional.”); Rice v. Riviera, 617 F.3d at 807 (“[T]he district court lacked jurisdiction over the [h]abeas [petition] because Rice is unable to satisfy the second prong of the Jones rule.”). As noted above, Petitioner previously filed two § 2255 motions. To the extent Petitioner is attempting to file another § 2255 motion, his potential remedy may be to seek permission from the United States Court of Appeals for the Eighth Circuit Court to file a successive § 2255 petition in the District Court for the District of Minnesota, in which he was sentenced.
IV. RECOMMENDATION
Accordingly, it is RECOMMENDED that the Petition in this action be DISMISSED without prejudice, and without requiring Respondent to file a return.
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).