Opinion
C/A No.: 6:19-1297-HMH-KFM
06-28-2019
Anthony T. Glover, Petitioner, v. Warden, FCI Ashland, Respondent.
REPORT OF 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. 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.
The petitioner's § 2241 petition was entered on the docket on May 3, 2019 (doc. 1). On May 8 and June 5, 2019, the undersigned issued orders informing the petitioner that his petition was not in proper form for judicial screening (docs. 5; 8). On May 24 and June 24, 2019, the petitioner provided additional documentation to the court and the case is now in proper form.
BACKGROUND
Petitioner's Conviction and Sentence
On January 12, 2015, the petitioner pled guilty in the United States District Court for the District of South Carolina to conspiracy to distribute narcotics and the unlawful transport of firearms. See United States v. Glover, C/A No. 3:14-cr-0240-JFA-4, at docs. 254; 257 (D.S.C.). On April 20, 2015, the Honorable Joseph F. Anderson, Jr., sentenced the petitioner to two concurrent terms of 120 months' imprisonment, followed by eight years of supervised release. Id. at docs. 297; 303. The sentence did not include a career offender or an Armed Career Criminal Act ("ACCA") enhancement, but was based upon the quantity of drugs for which the petitioner was charged. Id. at docs. 297; 303. The petitioner did not file a direct appeal of his conviction or sentence.
The court takes judicial notice of the records in the petitioner's criminal case in this district at case number 3:14-cr-00240-JFA-4, as well as his related actions seeking habeas relief in the sentencing court. See Phillips v. Pitt Cty. 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 Previous § 2255 Motion
The petitioner filed a motion pursuant to 28 U.S.C. § 2255 on April 21, 2016, arguing that pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015) and Welch v. United States, 136 S.Ct. 1257 (2016), his sentence was improperly enhanced and that he should not have received a 2-level guideline enhancement under § 2D1.1(b)(1). Id. at doc. 370. The petitioner's motion was denied on January 19, 2017. Id. at doc. 375. Judge Anderson ruled that the petitioner could not seek relief under Johnson/Welch because he was not sentenced as a career offender or as an armed career criminal; instead, his sentence was based upon the large amount of heroin attributable to him. Id. Judge Anderson also rejected the petitioner's challenge to the 2-level guideline enhancement he received for possession of firearms under § 2D1.1(b)(1). Id.
Petitioner's Present Action
The petitioner now seeks habeas relief pursuant to 28 U.S.C. § 2241, claiming that his sentence is unconstitutional in light of Johnson/Welch, that he received ineffective assistance of counsel, that his indictment was based on an improper wire tap, his two level firearm enhancement was unwarranted, and that his one level "weed enhancement" was improper (docs. 1; 1-2). For his relief, the petitioner seeks a sentence reduction (doc. 1-2 at 9).
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) (per curiam). 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). The petitioner is incarcerated in the Eastern District of Kentucky and names the Warden of FCI Ashland as the respondent (doc. 1-2 at 1). As such, at this stage in the proceedings, the § 2241 petition is appropriately before this court for adjudication. See Hill v. Quintana, — F. App'x —, 2019 WL 1934892 (4th Cir. 2019) (mem) (unpublished) (finding improper sua sponte dismissal on the ground that the petition was filed in the improper venue). 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 sentence via the present § 2241 action (doc. 1).
Unlike a § 2255 motion, which is filed in the trial and sentencing court, a § 2241 petition is typically 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 802, 807 (4th Cir. 2010) (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 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. Although the petitioner does not specifically allege why § 2255 is inadequate or ineffective, he did allege that he was unsuccessful in seeking relief under § 2255 in the sentencing court on the merits. 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).
Recently, the Court of Appeals established a test for evaluating whether a petitioner may meet the savings clause under § 2255 when he contests his sentence:
[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 415, 429 (4th Cir. 2018) (citations omitted). Thus, for the petitioner to be entitled to relief from his sentence under § 2241, he must satisfy this savings clause test, which is a jurisdictional requirement under § 2255. Id. at 426 (explaining that "the savings clause requirements are jurisdictional"). 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 at 807. Accordingly, because the § 2255 savings clause is a jurisdictional requirement, an analysis of whether the petitioner meets the four factor savings clause test created in Wheeler is appropriate for initial review.
Here, the petitioner cannot meet the savings clause test set forth in Wheeler; thus, the undersigned recommends dismissing the petition without prejudice and without requiring the respondent to file an answer or return. The petitioner here attacks the applicability of the ACCA to his sentence based upon Johnson (made retroactive by Welch), asserts ineffective assistance of counsel, improper wire tap, and improper enhancement of his sentence (based upon the "weed enhancement' and the "firearm enhancement") (doc. 1). Liberally construed, the petitioner contends that if he were sentenced post-Johnson/Welch (and under the law based upon his other arguments for relief), he would be serving a reduced sentence (id.).
The petitioner does meet the first Wheeler factor, as his sentence was legal at the time of sentencing. However, the petitioner cannot meet the second factor: 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 did not file a direct appeal; thus, important to the Wheeler analysis in the instant action is the timing of the petitioner's prior § 2255 motion. The petitioner filed his first § 2255 motion on April 21, 2016. See United States v. Glover, C/A No. 3:14-cr-0240-JFA-4, at docs. 370; 375 (D.S.C.). In denying the petitioner's § 2255 motion, the court noted that the petitioner was not sentenced as a career offender or pursuant to the ACCA. Id. at doc. 375.
Johnson, as indicated above, was decided on June 26, 2015, and was recognized as retroactive on collateral review in Welch, which was decided on April 18, 2016. See Welch, 135 S.Ct. 1257; Johnson, 135 S.Ct. 2551. As such, the petitioner cannot meet the second prong of Wheeler with respect to Johnson, because he has not shown that subsequent to his first § 2255 motion (April 21, 2016) the substantive law changed and was deemed to apply retroactively on collateral review. The same applies to the petitioner's other grounds for relief: he has not shown a change in the substantive law subsequent to his first § 2255 motion that has been made retroactive on collateral review. Further, the claims in this action are nearly identical to those in the petitioner's first § 2255 motion—that he should be re-sentenced in light of Johnson. Thus, here the "petitioner is trying to take yet another 'bite at the apple.' However, by litigating his § 2255 petition on the merits, the petitioner had his one 'bite at the apple.'" White v. Rivera, C/A No. 3:08-cv-3681-PMD-JRM, 2009 WL 1456712, at *8 (D.S.C. May 21, 2009) (citing In re Goddard, 170 F.3d 435 (4th Cir. 1999) (noting that normally a federal criminal defendant, after a conviction, may pursue a direct appeal and thereafter "take 'one further bite at the apple' in a § 2255 motion")). Accordingly, the petitioner has failed to satisfy the elements of the Wheeler test to invoke the savings clause of § 2255 and challenge his sentence. Accordingly, the petitioner's § 2241 petition should be dismissed because the savings clause contained in § 2255 does not permit him to bring this § 2241 action.
Petitioner's Motion for Relief under the FSA of 2018
On June 12, 2019, during the pendency of this action, the petitioner filed a motion to reduce sentence based upon the First Step Act of 2018, and its extension of the safety valve provision (doc. 11). It appears the petitioner asserts that he is entitled to a re-sentencing because he now qualifies for relief under the safety valve (as extended) (id. at 2). The motion also appears to request that counsel be appointed to represent the petitioner (id. at 2). The undersigned notes that the petitioner's First Step Act claim does not appear to have been presented to the sentencing court, which would be the appropriate venue to raise this claim initially. Accordingly, his motion here is not properly filed before the court, as it has not been presented to the sentencing court for consideration. See 28 U.S.C. § 2255. Thus, the undersigned recommends denying the petitioner's motion without prejudice so that he may first pursue his requested relief in the sentencing court in Case No. 3:14-cr-00240-JFA-4.
To the extent the motion can be read as requesting the appointment of counsel in this action, the motion is denied. There is no right to appointed counsel in habeas cases. Pennsylvania v. Finley, 481 U.S. 551, 555-56 (1987). As stated in 28 U.S.C. § 1915(e)(1), the court may use its discretion to appoint counsel for an indigent in a civil action. Smith v. Blackledge, 451 F.2d 1201, 1203 (4th Cir.1971). However, such appointment "should be allowed only in exceptional cases." Cook v. Bound, 518 F.2d 779, 780 (4th Cir.1975). After a review of the instant matter, this court has determined that no exceptional or unusual circumstances have been presented that would justify the appointment of counsel, nor would the petitioner be denied due process if an attorney were not appointed. Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated on other grounds by Mallard v. United States Dist. Court for S. Dist. of Iowa,490 U.S. 29 (1989).
RECOMMENDATION
Accordingly, it is recommended that the petitioner's § 2241 petition be dismissed without requiring the respondent to file a return. It is further recommended that the petitioner's motion for a sentence reduction pursuant to the First Step Act of 2018 (doc. 11) be denied without prejudice to his ability to re-file it before the sentencing court. 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 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.
s/ Kevin F. McDonald
United States Magistrate Judge June 28, 2019
Greenville, South Carolina
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).