Opinion
CIV-21-168-PRW
03-24-2021
MICHAEL A. HARRIS, Petitioner, v. WARDEN GRANT, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.
Michael A. Harris, a pro se federal prisoner currently housed at the “FCI El Reno, ” filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 with a supporting brief challenging his “‘ILLEGAL' conviction and sentence.” Doc. 1, Ex. 1, at 1. United States District Judge Patrick R. Wyrick has referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Because Petitioner's claims do not fall within 28 U.S.C. § 2255(e)'s Savings Clause, the undersigned recommends the Court dismiss the petition for lack of jurisdiction.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
I. Procedural background.
In 2017, Petitioner pleaded guilty pursuant to a plea agreement in the United States District Court for the Western District of Missouri to Conspiracy to Commit a Hobbs Act Robbery, in violation of 18 U.S.C. § 1951(a) (Count 1), and Aiding and Abetting Brandishing a Firearm in Furtherance of a Crime of Violence (the crime of violence being Aiding and Abetting a Hobbs Act Robbery committed on October 15, 2017) (Count 3), in violation of 18 U.S.C. § 924(c)(1)(A)(ii). See United States v. Harris, No. 4:17-CR-00348-DGK, Docs. 14, 32 (W.D. Mo. Nov. 14, 2017) (Harris I); see also Harris v. United States, 2019 WL 11609776, at *1 (W.D. Mo. Oct. 1, 2019) (Harris II). That court sentenced Petitioner to 150 months on Count 1 and a consecutive sentence of 84 months on Count 3. Harris II, 2019 WL 11609776, at *1. Petitioner did not appeal. Id.
Petitioner filed a 28 U.S.C. § 2255 motion in the sentencing court to “vacate, set aside, or correct his sentence.” See Id. Petitioner claimed that the Supreme Court's decision in United States v. Davis, 588 U.S. __, 139 S.Ct. 2319 (2019), “invalidated his convictions for conspiracy to commit Hobbs Act robbery and using a firearm during a crime of violence.” Id. at *2. He argued “that his conviction on Count One is invalid based on Davis, and that because Count One is invalid then Count Three for using a firearm during a crime of violence must also be vacated.” Id. The court rejected Petitioner's allegations and denied his § 2255 motion. Id. Petitioner appealed and the Eighth Circuit denied him a certificate of appealability and dismissed his appeal. See Harris v. United States, 2020 WL 8024742 (8th Cir. 2020). Petitioner then moved for a Writ of Certiorari which the Supreme Court denied. See Harris v. United States, 2021 WL 78444 (2021).
In Davis, the Supreme Court held that the residual clause of the crime of violence definition in 28 U.S.C. § 924(c)(3)(B) is void for vagueness. See id., 139 S.Ct. at 2336.
II. Petitioner's claim.
In his § 2241 petition, Petitioner raises the same claim he raised in his § 2255 petition before the sentencing court:
Petitioner is being held on a sentence that has been declared unconstitutional by the Supreme Court in U.S. v. Davis No. 18-431 S.Ct. June 24, 2019.
. . . .
The petitioner pled guilty to conspiracy to commit Hobbs Act Robbery, in violation of Title 18 USC § 1951(a). That statute has been declared unconstitutionally vague since his plea of guilty.Doc. 1, at 6. When prompted on the § 2241 form petition to explain why his § 2255 remedy was inadequate or ineffective to challenge his conviction or sentence he stated that his “‘Actual/Legal' innocence” claim “should be remedied by filing of a 28 U.S.C. § 2241 petition.” Id. at 4. Petitioner asks this Court to “vacate his sentence of 234 months.” Id. at 7.
III. Analysis.
A § 2255 motion serves as “the primary vehicle to attack the validity of a federal conviction or sentence.” Guerrero v. English, 743 Fed.Appx. 207, 209 (10th Cir. 2018) (citing Prost v. Anderson, 636 F.3d 578, 581 (10th Cir. 2011)). A federal prisoner “generally is entitled to only one adequate and effective opportunity to test the legality of his detention, in his initial § 2255 motion.” Prost, 636 F.3d at 586 (emphasis omitted). Once the initial § 2255 challenge fails, the prisoner cannot file a “second or successive” § 2255 motion unless a panel of the appropriate court of appeals certifies that the motion contains:
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.28 U.S.C. § 2255(h); Hale v. Fox, 829 F.3d 1162, 1165 (10th Cir. 2016). A federal prisoner must file a § 2255 motion in the district court that imposed his conviction and sentence. Hale, 829 F.3d at 1165 (citing Sines v. Wilner, 609 F.3d 1070, 1073 (10th Cir. 2010)).
A § 2241 petition differs from a § 2255 petition in that the former is “generally reserved for complaints about the nature of a prisoner's confinement, not the fact of his confinement.” Prost, 636 F.3d at 581; Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (“A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity and must be filed in the district where the prisoner is confined.”). Unlike § 2255, “[§] 2241 does not limit the number of applications a prisoner may bring, ” and the application must be filed in the district where the prisoner is incarcerated. Kirkland v. English, 757 Fed.Appx. 640, 642 (10th Cir. 2018) (citation omitted).
As Petitioner makes clear, he is challenging the validity of his convictions and sentence-not the execution of his sentence. Thus, his attack is only appropriate in a § 2255 challenge before the sentencing court, not this Court. See 28 U.S.C. § 2255(a) (permitting an inmate serving a sentence after conviction of a federal crime to “move the court which imposed the sentence to vacate, set aside or correct the sentence”).
In rare instances, a federal prisoner may file a § 2241 application to challenge his conviction under § 2255(e)'s Savings Clause. See Hale, 829 F.3d at 1165. In those rare instances, the “prisoner may proceed under § 2241 . . . when ‘§ 2255 fail[s] as an adequate or effective remedy to challenge a conviction or the sentence imposed.'” Lewis v. English, 736 Fed.Appx. 749, 751-52 (10th Cir. 2018) (quoting Sines, 609 F.3d at 1073). The prisoner “bears the burden of showing he satisfies § 2255(e).” Hale, 829 F.3d at 1170. If the prisoner fails to show he satisfies the § 2255(e) Savings Clause test, the district court “lacks statutory jurisdiction to hear his [§ 2241] habeas claims.” Abernathy v. Wandes, 713 F.3d 538, 557 (10th Cir. 2013).
Section 2255(e)'s Savings Clause test considers “whether a petitioner's argument challenging the legality of his detention could have been tested in an initial § 2255 motion.” Prost, 636 F.3d at 584; see also Kirkland, 757 Fed.Appx. at 642; Lewis, 736 Fed.Appx. at 752. “[I]t is the infirmity of the § 2255 remedy itself, not the failure to use it or to prevail under it, that is determinative, ” so “there must be something about the initial § 2255 procedure that itself is inadequate or ineffective for testing a challenge to detention.” Prost, 636 F.3d at 589 (emphasis added). If the petitioner could have raised in an initial § 2255 motion the same type of argument that he is raising under § 2255(e)'s Savings Clause, then “[t]he § 2255 remedial vehicle was fully available and amply sufficient to test the argument . . . . And that is all the savings clause requires.” Id.
Petitioner does not explain why the Savings Clause applies here. He states only that his challenge “should be remedied by filing of a 28 U.S.C. § 2241 petition.” Doc. 1, at 4. But Petitioner has already tested his Davis argument in a § 2255 motion which the sentencing court denied:
Here, Movant's conviction for conspiracy to commit Hobbs Act robbery in Count One falls under 18 U.S.C. § 1951. But, as explained above, Davis struck only the
residual clause provision of 18 U.S.C. § 924(c)(3)(B) and did not alter, amend or excise any portion of § 1951. Thus, the invalidation of the residual clause of § 924(c)(3)(B) does not impact this conviction.
Further, as correctly argued by Respondent, since Davis invalidated only the residual clause of § 924(c)(3)(B) and left intact the elements clause of § 924(c)(3)(A), the Eighth Circuit case law finding Hobbs Act robbery is a crime of violence under the elements clause remains binding precedent. See United States v. Jones, 919 F.3d 1064, 1072 (8th Cir. 2019); see also Diaz v. United States, 863 F.3d 781, 783 (8th Cir. 2017); United States v. House, 825 F.3d 381, 387 (8th Cir. 2016) (“Hobbs Act robbery has ‘as an element the use, attempted use, or threatened use of physical force against the person of another'”). Since the charge in Count Three utilized the crime charged in Count Two, which alleged Movant aided and abetted a specific Hobbs Act robbery, as the predicate crime of violence, his conviction on Count Three stands. Davis has no impact on the conviction in Count Three, because Count Two remains a crime of violence post-Davis. Thus, Movant's claim for relief is denied.Harris II, 2019 WL 11609776, at *2.
In this Circuit and in the Eighth Circuit, a Hobbs Act robbery is considered a crime of violence under the elements clause of 18 U.S.C. § 924(c)(3)(A). See, e.g., United States v. Kayarath, 822 Fed.Appx. 786, 789 (10th Cir. 2020) (“[W]e held in Melgar-Cabrera that Hobbs Act robbery categorically “is a crime of violence under the elements clause of § 924(c)(3).” (citing United States v. Melgar-Cabrera, 892 F.3d 1053, 1060 n.4 (10th Cir. 2018))); Diaz v. United States, 863 F.3d 781, 783 (8th Cir. 2017) (“Like other circuits, we have expressly held that Hobbs Act robbery has as an element the use, attempted use, or threatened use of physical force against the person of another, the operative term in § 924(c)(3)(A).” (internal quotation marks omitted)).
Petitioner's failure to obtain relief under § 2255 does not establish that the remedy so provided was either inadequate or ineffective. Prost, 636 F.3d at 585. And because Petitioner could have and did raise his Davis claim in his initial § 2255 petition, he cannot resort to the Savings Clause and § 2241 to raise it again. See Id. (“[T]he savings clause is satisfied so long as the petitioner had an opportunity to bring and test his claim.”).
Having considered the petition and the nature of the claims Petitioner presents, the undersigned recommends the Court dismiss this matter for lack of jurisdiction. Petitioner fails to show he satisfies § 2255(e)'s Savings Clause test, and so he may not proceed under § 2241.
IV. Recommendation.
The undersigned recommends the Court dismiss Petitioner's § 2241 petition. The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before April 14, 2021, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Petitioner that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned in the captioned matter.