Opinion
C/A No. 2:07-1277-GRA-RSC.
September 14, 2007
ORDER (Written Opinion)
This matter is before the Court for a review of the magistrate's Report and Recommendation made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c), D.S.C., and filed May 29, 2007. Petitioner seeks habeas corpus relief pursuant to 28 U.S.C. § 2241. The magistrate recommends dismissing the petition without prejudice and without requiring the respondent to file a return.
BACKGROUND
Petitioner is incarcerated at FCI-Estill. On November 17, 1989, in the Northern District of Florida, a jury found Fox guilty of one count of conspiracy to distribute cocaine and cocaine base (Count One), in violation of 21 U.S.C. § 846, and one count of possession with intent to distribute cocaine (Count Seven), in violation of 21 U.S.C. § 841(b)(1)(c). On January 23, 1990, he was sentenced to life without parole for Count One and two hundred forty (240) months for Count Seven. The Eleventh Circuit affirmed his conviction on direct appeal. Petitioner previously filed motions with the Northern District of Florida, Gainesville Division including: 1) a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255; 2) a second § 2255 motion; 3) an 18 U.S.C. § 3582(c)(2) motion construed as a second or successive § 2255 motion; 4) a § 2241 petition construed as a second or successive § 2255 motion; 5) an independent action construed as a second or successive § 2255 motion; and 6) a second independent action construed as a second or successive § 2255 motion. Pet. for Writ of Habeas Corpus, p. 3. On May 3, 2007, Petitioner filed the present motion in this Court pursuant to § 2241. As previously stated, the magistrate judge recommended dismissing the petition without prejudice and without requiring the respondent to file a return.
LAW/ANALYSIS
Petitioner brings this motion pro se. This Court is required to construe pro se pleadings liberally. Such pleadings are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.), cert. denied, 439 U.S. 970 (1978). This Court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. Cruz v. Beto, 405 U.S. 319 (1972).
The magistrate makes only a recommendation to this Court. The recommendation has no presumptive weight, and responsibility for making a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made, and this Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). This Court may also "receive further evidence or recommit the matter to the magistrate with instructions." Id.
In order for objections to be considered by a United States District Judge, the objections must be timely and must specifically identify the portions of the Report and Recommendation to which the party objects and the basis for the objections. FED. R. CIV. P. 72(b); see United States v. Schronce, 727 F.2d 91, 94 n. 4 (4th Cir. 1984); Wright v. Collins, 766 F.2d 841, 845-47 nn. 1-3 (4th Cir. 1985). "Courts have . . . held de novo review to be unnecessary in . . . situations when a party makes general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendation." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Furthermore, in the absence of specific objections to the Report and Recommendation, this Court is not required to give any explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198 (4th. Cir. 1983). Petitioner timely filed objections to the Report and Recommendation on July 19, 2007.
Petitioner raises several objections to the magistrate's Report and Recommendation which this Court will address. The objections can be summarized into the following claims: 1) Petitioner's claim for habeas relief pursuant to § 2241 is not misplaced because Petitioner is actually innocent based on new reliable evidence not presented at his trial; 2) exhaustion of remedies is not a prerequisite of an actual innocence claim under § 2241; and 3) the denial of Petitioner's actual innocence claim under § 2241 would amount to suspension of the writ under § 2241.
Petitioner first objects to the magistrate's finding that Petitioner's reliance on § 2241 is misplaced. Essentially, Petitioner argues that he has properly invoked the savings clause under 28 U.S.C. § 2255, which permits him to bring a § 2241 petition when § 2255 is inadequate or ineffective to test the legality of his conviction. Further, Petitioner claims that the magistrate applied the wrong standard to his actual innocence claim. Petitioner claims that the actual innocence standard in § 2255 is more rigorous than an actual innocence claim pursuant to § 2241 and that the latter standard should be applied to his actual innocence claim. Objections, p. 2.
Accordingly, the threshold question in this case is whether Petitioner's claims are properly raised in this Court through a § 2241 habeas petition. As the magistrate correctly noted, § 2241 is typically used to challenge the manner in which a sentence is executed. See In re Jones, 226 F.3d 328, 334 (4th Cir. 2000); In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997). A motion filed pursuant to § 2255, on the other hand, is the primary means under which a federal prisoner may collaterally attack the legality of his conviction or sentence. See Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999) (collecting cases from other circuits). According to at least one court, "a prisoner who challenges his federal conviction or sentence cannot use the federal habeas corpus statute at all but instead must proceed under 28 U.S.C. § 2255." Waletzki v. Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994).
Section 2241 may be used by a federal prisoner to challenge the legality of his conviction or sentence only if he can satisfy the mandates of the so-called § 2255 "savings clause." See Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001). The savings clause provides that a prisoner may file a writ of habeas corpus if a remedy by a § 2255 motion is "inadequate or ineffective to test the legality of his detention." See 28 U.S.C. § 2255. The petitioner bears the burden of demonstrating that the § 2255 remedy is inadequate or ineffective. See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001); Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000). It is settled in this circuit that the possibility that a § 2255 petition filed by a prisoner might be found as successive does not render the § 2255 remedy inadequate or ineffective. See In Re Vial, 115 F.3d 1192, 1194 n. 5 (4th Cir. 1997) ( en banc).
In In re Jones, 226 F.3d 328 (4th Cir. 2000), the Fourth Circuit set out a test for determining whether a § 2255 motion would be inadequate or ineffective to allow a petitioner to pursue his claim under § 2241 by way of the savings clause of § 2255. The 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 conviction 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.Jones, 226 F.3d at 333-34. As previously stated, the burden is on Petitioner to prove that he has met the test established in Jones. As the magistrate correctly noted, Petitioner "has not set forth any set of facts which could be construed to meet any of the prongs announced in Jones." Report and Recommendation, p. 5. Petitioner argues that he supplied facts which, if true, would meet the inadequate and ineffective test under § 2255. He claims that there is new and reliable evidence which he discovered after his trial which meets the actual innocence standard and enables him to pursue a habeas petition under § 2241. Petitioner's argument, however, is without merit.
In order for a Petitioner to properly bring a § 2241 claim, he must first meet the test established by the Fourth Circuit in Jones to prove that the savings clause applies to him and that a remedy under § 2255 is inadequate or ineffective.
A petitioner may not argue the merits of his [actual innocence] claim until he has "open[ed] the portal to a § 2241 proceeding by demonstrating that the savings clause applies to his claim. Only if a petitioner successfully `opens the portal' will [a court] take the next step and determine if the petitioner can overcome a procedural default by showing `actual innocence."Ramiro v. Vasquez, 210 Fed. App'x 901, 904 (11th Cir. 2006) (unpublished) (quoting Wofford v. Scott, 177 F.3d 1236, 1244, n. 3 (11th Cir. 1999)). Instead of setting forth facts which prove that Petitioner has met the Jones test, Petitioner argues the merits of his actual innocence claim which he previously argued in his initial § 2241 petition. Since Petitioner has failed to set forth facts which demonstrate that the savings clause applies to him, he has not successfully "opened the portal" to a successful § 2241 proceeding by demonstrating that the savings clause applies to his claim.
Moreover, Fox confuses the standard for having his actual innocence claim reviewed on the merits. The Second Circuit stated:
it is true that when section 2255 is rendered "ineffective or inadequate," a defendant may invoke section 2241 to challenge the validity of a conviction. But this exception does not apply to White's petition. White's actual innocence claim purports to rely upon newly discovered evidence that could not previously have been discovered with diligent effort. White therefore might still be able to satisfy the successive gatekeeping requirements of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See 28 U.S.C. § 2255 para. 8. As a result, section 2255 is not an "ineffective or inadequate" remedy for White, and he may not invoke section 2241 to challenge the validity of his conviction.White v. Nash, 67 Fed. App'x. 631, 633-34, 2003 WL 1867923, *2 (2d Cir. 2003) (citations omitted) (unpublished). Like the petitioner in White, Fox may be able to satisfy the gatekeeping requirements of the AEDPA. Therefore, § 2255 would not be an ineffective or inadequate remedy, and he may not invoke section § 2241 to challenge the validity of his conviction. "Because petitioner does not demonstrate under Jones that § 2255 is inadequate to test the legality of his detention, he is not entitled to relief under § 2241." Wilson v. Hamidullah, No. Civ. A. 40700013, 2007 WL 1795793, *3 (D.S.C. filed June 19, 2007) (citation omitted).
Notwithstanding the procedural bar to Petitioner's claim of actual innocence, in reviewing the new reliable evidence Petitioner proffered, this Court is of the opinion that the claim is without merit. The Supreme Court stated that for a petitioner "[t]o establish actual innocence, petitioner must demonstrate that, `in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.'" Bousley v. United States, 523 U.S. 614, 623 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 327-328 (1995)). As the magistrate noted, cognizable claims of "actual innocence" are extremely rare and must be based on `factual innocence not mere legal insufficiency.'" Report and Recommendation, p. 7 (quoting Bousley, 523 U.S. at 623); see also Doe v. Menefee, 139 F.3d 147 (2d Cir. 2004). "A `claim of actual innocence is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.'" Tarpkin v. United States., 2006 WL 3761883, *7 (E.D. Tenn. 2006) (citing Herrera v. Collins, 506 U.S. 390, 404 (1993)). The magistrate stated that "petitioner must `support 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.'" Report and Recommendation, p. 8 (quoting Thompson v. United States, 211 F.3d 1270 (6th Cir. 2000) (table) (text available on Westlaw)).
Petitioner claims that the magistrate erred in concluding that Petitioner's new evidence presented was insufficient to establish that he is actually innocent. In his objections, Petitioner resubmits the new reliable evidence from his original § 2241 petition. He alleges that the new evidence is "based upon false testimony and a Brady violation." Objections, p. 5. In his objections, Fox alleges four instances of new reliable evidence. He first argues that the grand jury transcript, with the testimony of DEA agent Carl Lilley, is new reliable evidence because "it was not disclosed to Fox are [sic] the jury, but reviewed in carmea [sic], and placed under seal by the Court." Objections, p. 6. Fox claims that "new reliable evidence was presented in United States v. Pablo Guitierrez-Villaverde (Case no. 90-01020-MMP) reveals that Carl Lilley lied to the grand jury and trial jury regarding the abduction" of government informant Tommy Henderson. Id. Fox next argues that "the second instance of agent Carl Lilley providing false testimony to the grand jury regarded the purported purchase of cocaine from Fox on November 23, 1988, where supposedly Tommy Henderson brought less than a half once [sic]." Id. Fox claims that "[t]he purported drug sale supposedly took place at 1231 Southeast 24th Place, Gainesville, Florida . . . However, new reliable evidence reveals that there has never been such a parcel of land with that address in Gainesville, Florida." Id. With respect to the third instance of new reliable evidence, Fox alleges that "Tommy Henderson upon direct examination were [sic] he stated that he was not living in the State of Florida, and he was not provided any manner of assistance regarding his move out of the State of Florida." Id. Fox argues that in United States v. Pablo Guitierrez-Villaverde, "new reliable evidence reveals that Tommy Henderson was provided a $1,000.00 by agent Carl Lilley to assist with move out of the State of Florida." Id. Fox also alleges that "the last instance of false testimony concerns Yvette Warren were [sic] she denied being an informant for the drug enforcement administration. Once again, new reliable evidence was presented in United States v. Pablo Guitierrez-Villaverde, . . . that she had been providing information to the Drug Enforcement Administration." Id. at 6-7.
Fox also alleges new reliable evidence in "the context of" violations, pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Objections, p. 7. With respect to the alleged Brady violations, Fox cites to his Memorandum of Law in Support of his Petition under § 2241 and states that "the new reliable evidence in the context of Brady is very easy to show, the government failed to turn over potential Brady material, that if revealed during the trial fo Fox would be favorable to Fox and material to the jury decision." Id. In his Memorandum, Petitioner claims that "the prosecution withheld:
(1) Tommy Henderson's prior statement; money paid to him; and his informant history; () Yvette Warren[']s informant history; money paid to her; her criminal background; and prior testimony before the grand jury relating to her testimony in this case; and (3) Shannon Pollard's criminal background and informant history; and deals between her and the prosecution regarding consideration of time cuts.
Pet'r Memorandum in Supp. of Habeas Corpus, p. 24. Essentially, Mr. Fox is attempting to allege Brady violations as a form of new reliable evidence to support his claim for actual innocence.
After reviewing the entire record and all exhibits produced by Petitioner in support of his actual innocence claim, this Court cannot conclude that "it is more likely than not that no reasonable juror would have convicted [Fox] in light of the new evidence" for violations of § 846 and § 841 (b)(1)(c). Schlup, 513 U.S. at 327. This Court finds that Petitioner's new evidence does not support a claim for actual innocence and further agrees with the magistrate's recommendation that Petitioner has failed to set forth new reliable evidence to meet the stringent requirements of an actual innocence claim.
Petitioner next objects to the magistrate's determination that Petitioner failed to exhaust his administrative remedies with the Federal Bureau of Prisons ("BOP"). Petitioner claims that any further administrative remedies would be futile, because the BOP can not vacate Fox's conviction. Objections, p. 4. Petitioner states that he is not challenging the execution of the sentence or conditions of his confinement under § 2241; rather, he is attempting to have this Court address the legality of his conviction by way of the savings clause under § 2255. Though, under these circumstances, Petitioner may be correct in his assertion, he still has failed to prove that § 2255 would be inadequate or ineffective to address the legality of his conviction. Congress saw fit to limit the availability of § 2255 petitions, and the United States Supreme Court determined in Felker v. Turpin, 518 U.S. 651 (1996) that Congress was within its right to do so under the AEDPA. To determine that Congress limited the availability of § 2255 on the one hand, but intended to allow petitioners the availability fo the Writ under § 2241 on the other hand, would clearly be contrary to the purpose of the AEDPA. The post conviction remedies provided to federal prisoners by Congress require Petitioner to either obtain a certificate of appealability to file a second or successive § 2255 motion. Otherwise, Petitioner must satisfy the test set forth by the Fourth Circuit in In re Jones, as outlined above. Since Petitioner has failed to set forth facts to show that the remedy provided by § 2255 would be inadequate or ineffective, he has failed to meet his burden. Therefore, Petitioner's objection is without merit.
In his final objection, Petitioner claims that to deny "his actual innocence claim under § 2241, would amount to suspension of the writ under § 2241." Objections, p. 4. However, this Court agrees with the magistrate's conclusion that a second or successive § 2255 petition is not a suspension of the writ. See In re Vial, 115 F.3d at 1198 ("the limitations imposed on second and successive § 2255 motions by the AEDPA do not constitute a suspension of the writ."). Petitioner has not met his burden of proving that the remedy provided in § 2255 is inadequate and ineffective, as such, his objection is without merit.
Since Petitioner has not secured an order from the Court of Appeals for the Fourth Circuit authorizing this court to consider a successive § 2255 motion, the Court dismisses Fox's petition for writ of habeas corpus. See 28 U.S.C. § 2255; see also In re Goddard, 170 F.3d 435, 436 (4th Cir. 1999) ("[B]efore a prisoner can pursue a qualifying `second or successive' § 2255 motion, he must obtain authorization from the court of appeals." (citation omitted)).
CONCLUSION
After a review of the magistrate's Report and Recommendation, this Court finds that the report is based upon the proper law. Accordingly, the Report and Recommendation is accepted and adopted in its entirety.
IT IS THEREFORE ORDERED that Petitioner's claims are DISMISSED without prejudice and without requiring respondent to file a return.
IT IS SO ORDERED.
NOTICE OF RIGHT TO APPEAL
Petitioner is hereby notified that he has the right to appeal this Order within thirty (60) days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure. Failure to meet this deadline, as modified within Rule 4, will waive the right to appeal.