Opinion
Civil Action 3:19-CV-143 (GROH)
11-12-2021
RODERICK DEVON FROST, Petitioner, v. WARDEN, R. HUDGINS, Respondent.
REPORT AND RECOMMENDATION
ROBERT W. TRUMBLE UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
On September 5, 2019, Roderick Devon Frost, an inmate at FCI Gilmer, acting pro se, filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241. ECF No. 1. Following the issuance of a notice of deficient pleading, Petitioner filed an amended petition on the Court-approved form on October 1, 2019. ECF No. 12. Petitioner is challenging the validity of his conviction and sentence from the Western District of Michigan where he entered a guilty plea to being a felon in possession of a firearm. Although Petitioner had at least three prior convictions for violent felonies under the Armed Career Criminal Act (ACCA), the Court departed from the advisory guideline range and imposed a sentence below the mandatory fifteen year minimum, sentencing Petitioner to only ninety-six months of incarceration.
All CM/ECF references refer to the instant action, 3:19-CV-143, unless otherwise noted.
The matter is now before the undersigned United States Magistrate Judge for a Report and Recommendation to the District Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR PL P 2. For the reasons set forth below, the undersigned recommends that the Petition be denied and dismissed without prejudice for lack of jurisdiction.
II. FACTUAL AND PROCEDURAL HISTORY
A. Conviction and Sentence in the Western District of Michigan
All CM/ECF references in facts sections II.A., and II.B. refer to entries in the docket of Criminal Action No. 1:17-CR-132, in the Western District of Michigan.
On June 27, 2017, a grand jury charged Petitioner with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), in case number 1:17-CR-132, in the Western District of Michigan. ECF No. 1. Frost entered a guilty plea to the charge. PSR, ECF No. 28 at 99, ¶¶ 3-7. Frost's criminal history included two convictions for delivery/manufacture of narcotics and a conviction for assault with intent to rob while armed. Id. at 100, ¶ 10. Because he had two drug trafficking convictions and a prior felony crime of violence, Frost was an armed career criminal. Id. at 103, ¶ 32. His advisory sentencing guidelines range was 180 months. Id. at 118. The Court departed from the advisory guidelines range and imposed a sentence below the mandatory minimum on the government's motion. ECF No. 49 (citing Statement of Reasons). On January 25, 2018, the district court sentenced Frost to ninety-six months in the BOP. Judgment, ECF No. 40 at 163.
Frost's first felony conviction was a plea to assault with intent to rob while armed; he robbed two people at gunpoint. PSR, ECF No. 28 at 105-06, ¶ 44. His history of gun crimes also included a juvenile adjudication for carrying a concealed weapon and a juvenile armed robbery/gun charge that was dismissed. Id. at 104-05, ¶ 40. In this case, he had a loaded handgun with him in a car in November 2016. Id. at 100, ¶¶ 11-12. Three months later, in January 2017, law enforcement executed a search warrant at a house; Frost was present and a gun was found in his coat pocket. Id. at 101-02, ¶¶ 16, 19.
B. Direct Appeal
Although Petitioner waived his right to appeal in his plea agreement, Petitioner had until February 8, 2018 to file a direct appeal and did not do so.
C. Post-Conviction Motions
Although Petitioner waived his right to file a post-conviction motions, Petitioner had until February 8, 2019, to file a § 2255 Motion to Vacate and failed to do so. The only Motion filed by the Petitioner after his conviction was a pro se Motion for Compassionate Release. ECF No. 47, 1:17CR132, Western District of Michigan.
D. Claims in the Instant § 2241 Petition
Petitioner instituted this action on September 5, 2019, then filed an amended petition on the Court-approved form on October 1, 2019. ECF Nos. 1, 12. In his amended petition, Petitioner claims that he is entitled to relief under the ruling in Rehaif v. United States, 139 S.Ct. 2191 (2019). Petitioner claims that the government failed to prove the necessary element that he knowingly possessed a firearm while knowingly being a person prohibited from possession of a firearm. ECF No. 12 at 5.
On May 14, 2020, Petitioner filed a letter [ECF No. 15] stating that United States v. Gary, 954 F.3d 194 (4th Cir. 2020) was applicable to his case. Thereafter, the Gary case was reversed by Greer v. United States, 141 S.Ct. 2090 (2021).
On June 18, 2020, Petitioner filed a second letter [ECF No. 16] stating that in Steele v. Hudgins, the Fourth Circuit held that the case should be transferred to the district court of conviction and sentencing. Steele v. Huggins, 808 Fed.Appx. 208 (4th Cir. 2020). However, Petitioner's conviction was in January of 2018, and he did not file a direct appeal. Not only did Petitioner waive his right to file a §2255 but the statute of limitations has also passed for Petitioner to file a §2255 Motion in the district of conviction.As to the relief requested from this Court, Petitioner requests that the Court reverse his conviction and sentence and discharge him from custody. ECF No. 12 at 8.
For federal prisoners, the time for filing a direct appeal expires fourteen days after the written judgment of conviction is entered on the criminal docket. See F.R.App.P. 4(b)(1)(A)(i). Therefore, the petitioner's conviction became final on February 8, 2018, the date his time for filing a direct appeal expired. Therefore, Petitioner had until February 8, 2019, to file his habeas corpus under AEDPA.
III. LEGAL STANDARDS
A. Reviews of Petitions for Relief
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and the Court's Local Rules of Prisoner Litigation Procedure, this Court is authorized to review such petitions for relief and submit findings and recommendations to the district court. This Court is charged with screening Petitioner's case to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 Cases in the U.S. District Courts; see also Rule 1(b), Rules Governing Section 2254 Cases in the U.S. District Courts (a district court may apply these rules to a habeas corpus petition not filed pursuant to § 2254).
B. Pro Se Litigants
Courts must read pro se allegations in a liberal fashion and hold those pro se pleadings “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). Pursuant to 28 U.S.C. § 1915A(b), the Court is required to perform a judicial review of certain suits brought by prisoners and must dismiss a case at any time if the Court determines that the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. A complaint is frivolous if it is without arguable merit either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (superseded by statute). The Supreme Court in Neitzke recognized that:
Section 1915(d) is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11. To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.Id. at 327.
The version of 28 U.S.C. § 1915(d) which was effective when Neitzke was decided provided, “The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” As of April 26, 1996, the statute was revised and 28 U.S.C. § 1915A(b) now provides, “On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-- (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.”
III. ANALYSIS
Petitioner asserts one ground for relief: that his conviction and sentence are invalid based on the holding of Rehaif. ECF No. 12 at 5.
Rehaif v. United States, 139 S.Ct. 2191 (2019).
A. Petitioner's Challenge to his Conviction
Prisoners seeking to challenge the validity of their convictions or their sentences are required to proceed under § 2255 in the district court of conviction. By contrast, a petition for writ of habeas corpus, pursuant to § 2241, is generally intended to address the execution of a sentence, rather than its validity, and is to be filed in the district where the prisoner is incarcerated. Fontanez v. O'Brien, 807 F.3d 84, 85 (4th Cir. 2015). In a § 2241 petition, a prisoner may seek relief from such things as the administration of his parole, computation of good time or jail time credits, prison disciplinary actions, the type of detention, and prison conditions in the facility where incarcerated. Id.; see also Adams v. United States, 372 F.3d 132, 135 (2d Cir. 2004).
While the terms of § 2255 expressly prohibit prisoners from challenging their convictions and sentences through a habeas corpus petition under § 2241, there is nonetheless a “savings clause” in § 2255, which allows a prisoner to challenge the validity of his conviction and/or his sentence under § 2241, if he can demonstrate that § 2255 is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). The law is clearly developed, however, that relief under § 2255 is not inadequate or ineffective merely because relief has become unavailable under § 2255 because of (1) a limitation bar, (2) the prohibition against successive petitions, or (3) a procedural bar due to failure to raise the issue on direct appeal. In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997).
In 1996, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was enacted, establishing a one-year limitation period within which to file any federal habeas corpus motion. 28 U.S.C. § 2255. The limitation period shall run from the last of:
a. The date on which the judgment of conviction becomes final;
b. The date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
c. The date on which the right was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or d. The date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2255(f).
A petitioner bears the burden of demonstrating that the § 2255 remedy is “inadequate or ineffective, ” and the standard is an exacting one. The Fourth Circuit has announced two tests for evaluating whether a petitioner's claim satisfies the § 2255(e) savings clause. Which test is to be applied depends on whether the petitioner is challenging the legality of his conviction or the legality of his sentence. See United States v. Wheeler, 886 F.3d 415, 428 (4th Cir. 2018); In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000). When a petitioner is challenging the legality of his conviction, § 2255 is deemed to be “inadequate or ineffective” only when all three of the following conditions are satisfied:
This is the equivalent of saying that “the § 2255(e) savings clause is satisfied.”
(1) at the time of the conviction, the settled law of this Circuit or of the Supreme Court established the legality of the conviction;
(2) subsequent to the prisoner's direct appeal and first section 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 section 2255 because the new rule is not one of constitutional law.In re Jones, 226 F.3d at 333-34. Because the requirements of the savings clause are jurisdictional, a § 2241 petitioner relying on the § 2255(e) savings clause must meet the Jones test (if challenging the legality of his conviction) for the court to have subject-matter jurisdiction to evaluate the merits of the petitioner's claims. See Wheeler, 886 F.3d at 423-26.
When a petitioner is challenging the legality of his sentence, § 2255 is deemed to be “inadequate or ineffective” only when all four of the following conditions are satisfied:
(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. The Fourth Circuit has specified that a change of substantive law within the Circuit, not solely in the Supreme Court, would be sufficient to satisfy the second prong of the four-part test established in Wheeler. Id. Because the requirements of the savings clause are jurisdictional, a § 2241 petitioner relying on the § 2255(e) savings clause must meet the Jones test (if challenging the legality of his conviction) or the Wheeler test (if challenging the legality of his sentence) for the court to have subject-matter jurisdiction to evaluate the merits of the petitioner's claims. See Wheeler, 886 F.3d at 423-26.
Petitioner raises a single claim as to his conviction and sentence. He asserts that his conviction and sentence are invalid because of the Supreme Court's holding of Rehaif, 139 S.Ct. 2191 (2019), which required the Government to prove both (1) that defendant knowingly possessed a firearm and (2) that the defendant knew he was prohibited from possessing a firearm. Because Petitioner's right to file a direct appeal and a § 2255 Motion have expired, he may seek leave to file a successive § 2255 under § 2255(h)(2) or he can file a § 2241 relying on the § 2255(e) savings clause.
Because Petitioner's argument does not rely on newly discovered evidence or a new rule of constitutional law, relief under 28 U.S.C. § 2255(h) is inappropriate. Therefore, in order for Petitioner to obtain relief under § 2241, he must rely on the § 2255(e) savings clause. Because Petitioner is challenging his conviction and sentence in a § 2241, he must meet all three prongs of the Jones test to challenge his conviction for this Court to have jurisdiction to hear his challenge on the merits.
In this case, even if Petitioner meets the first and third prongs of the Jones test, he cannot meet the second prong. Subsequent to Petitioner's direct appeal and time to submit his first § 2255 motion, the substantive law related to the conduct of which Petitioner was convicted (felon in possession of a firearm) has not changed. The conduct is still criminal. The Supreme Court in Greer v. United States, 141 S.Ct. 2090 (2021) (vacating and remanding United States v. Gary, 954 F.3d 194 (4th Cir. 2020)), held that the government's failure to prove the element of knowingly being a person in a prohibited class is not a structural error. The Court explained that it “has repeatedly made clear [that] the ‘general rule' is that ‘a constitutional error does not automatically require reversal of a conviction, ” and that “[o]nly in a ‘very limited class of cases' has the Court concluded that an error is structural, and ‘thus subject to automatic reversal' on appeal.” Id. at 2099 (internal citations omitted).
Further, the Court noted that its “precedents make clear, the omission of a single element from jury instructions is not structural. . . . And it follows that a Rehaif error in a plea colloquy is likewise not structural. The omission of that mens rea element from a plea colloquy-like the omission of that mens rea element from jury instructions-does not affect the entire framework within which the proceeding occurs.” Id. at 2100.
The crime Petitioner was convicted of committing-being a prohibited person in possession of a firearm, in violation of 18 U.S.C. § 922(g)-is still a violation of law. Therefore, Petitioner cannot satisfy the second prong of Jones. Accordingly, because Petitioner cannot satisfy the savings clause of § 2255(e) under Jones, his challenge to his conviction may not be considered under § 2241, and this Court is without jurisdiction to consider that challenge.
Further, even if Petitioner could meet all three prongs of the Jones test, his claims do not merit relief. In Rehaif, the Supreme Court held that the “the word knowingly applies both to the defendant's conduct and to the defendant's status. To convict the defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.” Id. at 2194. Petitioner argues that Rehaif renders his conviction invalid because the Government did not prove that he knowingly possessed a firearm and knowingly was prohibited from doing so. ECF No. 12-1 at 1.
However, the Greer Court found that Gary, who was convicted of being a felon in possession of a firearm based upon his plea to that offense, “admitted that he was a felon when he pled guilty.” Id. at 2098. Further, the Court noted that before his felon in possession offense, Gary “had been convicted of multiple felonies. Those prior convictions are substantial evidence that [he] knew [he was a] felon” and that he never disputed the fact of his prior convictions. Id. at 2097-98. Likewise in this case, Petitioner pled guilty to violating 18 U.S.C. §§ 922(g)(1) and 924(e). During his plea colloquy, Petitioner testified that he was in possession of a loaded Smith & Wesson .40 caliber revolver and that it was manufactured in Massachusetts. ECF No. 27 at 23. He further testified that he understood that he had the following felony convictions: In 1998 he was convicted of assault with intent to rob while armed and carrying a concealed weapon, in 2012 he was convicted of possession with intent to deliver narcotics, and again in 2012, he was convicted of possession with intent to deliver. ECF No. 27 at 7, 23. Although Petitioner did not state explicitedly at the plea hearing that he knew he was a not allowed to possess gun, he did admit that he knew he was convicted of three felonies. The Court further inquired of the Petitioner, “Any questions about what you have been charged with and what the penalties for that could be?” Id. at 13:12-14. Petitioner responded, “No, ma'am.” Id. As the Court stated in Greer, there was substantial evidence presented at the plea in this case that Petitioner knew he was a felon as he did not dispute his prior convictions.
References to ECF No. 27 and 28, are to the case in the Western District of Michigan, 1:17CR132. ECF No. 27 is the plea transcript and ECF No. 28 is the PSR.
Further, the Sixth Circuit, where Petitioner was convicted, has repeatedly upheld challenges to convictions on Rehaif grounds. United States v. Bowens, 938 F.3d 790, 797 (6th Cir. 2019); United States v. Wilson, No. 1:17-CR-60, 2019 WL 6606340, at *6 (W.D. Mich. Dec. 5, 2019); Cooper v. United States, No. 19-3645, 2019 WL 7494402, at *1 (6th Cir. Dec. 12, 2019).
Accordingly, even if this Court were to consider the merits of Petitioner's challenge to his conviction, his claim fails.
B. Petitioner's Challenge to his Sentence
Petitioner's request for relief as to his sentence under § 2241 is unavailable. Even if Petitioner meets the other prongs of Wheeler, Petitioner cannot meet the second prong, which requires a showing that 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. The Court notes that Petitioner cannot satisfy the second Wheeler prong because the case he relies on, Rehaif, has not been ruled to apply retroactively to cases on collateral review. Furthermore, since the Supreme Court's decision in Rehaif, several courts within the Fourth Circuit have held that Rehaif did not change substantive law because the conduct for which the petitioner was convicted is still illegal. See Hill v. Warden, FCI McDowell, 2021 WL 4443068 (S.D. W.Va. Sept. 28, 2021); Davis v. Streeval, 2021 WL 4432514 (W.D. Va. Sept. 27, 2021); Seller v. Dobbs, 2021 WL 4059733 (D.S.C. Sept. 7, 2021); Goldwire v. Warden, 2021 WL 4026072 (D.S.C. Sept. 3, 2021); Albritton v. Warden, 2021 WL 3432845 (E.D. VA. August 4, 2021); see also Williams v. United States, 2019 WL 6499577 (W.D. N.C. Dec. 3, 2019) (holding that Rehaif “did not announce a new rule of Constitutional law but rather clarified the requirements of 18 U.S.C. § 922(g)”). Accordingly, Petitioner cannot meet the second prong of the Wheeler test.
Additionally, Defendant did not file a direct appeal or a § 2255 petition.
Because Petitioner cannot satisfy the savings clause of § 2255(e) under Wheeler, his claim may not be considered under § 2241, and this Court is without jurisdiction to consider his petition challenging his sentence. When subject-matter jurisdiction does not exist, “the only function remaining to the court is that of announcing the fact and dismissing the cause.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-103 (1998); Reinbold v. Evers, 187 F.3d 348, 359 n.10 (4th Cir. 1999).
V. RECOMMENDATION
For the foregoing reasons, the undersigned recommends that the amended petition [ECF No. 12] be DENIED and DISMISSED WITHOUT PREJUDICE FOR LACK OF JURISDICTION.
The Petitioner shall have fourteen (14) days from the date of filing this Report and Recommendation within which to file with the Clerk of this Court, specific written objections, identifying the portions of the Report and Recommendation to which objection is made, and the basis of such objection. A copy of such objections should also be submitted to the Honorable Gina M. Groh, Chief United States District Judge. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitation, consistent with LR PL P 12.
Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. 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).
This Report and Recommendation completes the referral from the district court. The Clerk is directed to terminate the Magistrate Judge's association with this case.
The Clerk of the Court is further DIRECTED to mail a copy of this Report and Recommendation to the pro se petitioner by certified mail, return receipt requested, to his last known address as reflected on the docket sheet, and to all counsel of record by electronic means.