Opinion
C/A No. 9:19-281-RMG-BM
04-09-2019
Karim Abdullah Hasan, Petitioner, v. Warden W. Vereen, Respondent.
REPORT AND RECOMMENDATION
The pro se Petitioner, Karim Abdullah Hasan, an inmate at FCI-Edgefield, brings this application for writ of habeas corpus (Petition) pursuant to 28 U.S.C. § 2241. Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in this case 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); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
See Rule 1(b) of Rules Governing Section 2254 Cases in the United States District Courts [the district court may apply any or all of these rules to a habeas corpus petition not filed pursuant to 28 U.S.C. § 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 for the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89 (2007); Hughes v. Rowe, 449 U.S. 5, 9 (1980); Fine v. City of New York, 529 F.2d 70, 74 (2d Cir. 1975). However, even when considered under this less stringent standard, for the reasons set forth hereinbelow the petition submitted in the instant case is subject to summary dismissal. The requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). Such is the case here.
Discussion
After pleading guilty in 2015 in the Eastern District of Tennessee to Conspiracy to Distribute or Possession with Intent to Distribute 28 Grams or More of Cocaine Base in violation of 21 U.S.C. §§ 846 & 841(b)(1)(B), Petitioner was sentenced to 192 months imprisonment to run concurrently with sentences imposed in Sullivan County, Tennessee Criminal Court Number 560782 and Washington County, Tennessee Criminal Court Case Number 35854. The records from the Eastern District of Tennessee do not show that Petitioner filed a direct appeal or that he filed a motion to vacate pursuant to 28 U.S.C. § 2255. See United States v. Hasan, No. 2:14-cr-00082-JRG-MCLC-4.
Although Petitioner asserts in his "Conclusion" that "[s]ubsequent to Petitioner's direct appeal and first § 2255 motion" the substantive law changed to permit a challenge to his sentence, Petition, ECF No. 1 at 13, he does not provide any dates of such or any evidence that he filed an appeal or a § 2255 motion.
A federal court may take judicial notice of the contents of its own records. See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1979). The Court may also take judicial notice of factual information located in postings on government web sites. See Tisdale v. South Carolina Highway Patrol, C/A No. 0:09-1009-HFF-PJG, 2009 WL 1491409, *1 n. 1 (D.S.C. May 27, 2009), aff'd 347 F. App'x 965 (4th Cir. Aug. 27, 2009); In re Katrina Canal Breaches Consolidated Litigation, No. 05-4182, 2008 WL 4185869, at * 2 (E.D.La. Sept. 8, 2008)[noting that courts may take judicial notice of governmental websites including other courts' records]; Williams v. Long, 585 F.Supp.2d 679, 687-88 (D.Md. 2008)[noting that some courts have found postings on government web sites as inherently authentic or self-authenticating].
Petitioner asserts that he improperly received an enhanced sentence based on three prior South Carolina sentences for convictions under S.C. Code Ann. § 44-53-445(A) for distribution of a controlled substance in close proximity of a school. He claims that he is "actually innocent" of being a career offender under United States Sentencing Guideline § 4B1.1(b). Petitioner argues that he has demonstrated that he is entitled to relief under United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018) because the savings clause authorizes this court to grant him relief on his alleged erroneously imposed sentence.
This action is subject to summary dismissal because generally "it is well established that defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255," not through a petition filed pursuant to § 2241. Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citing In re Vial, 115 F.3d 1192,1194 (4th Cir. 1997)). However, a federal prisoner may file a § 2241 petition challenging his conviction if § 2255 is "inadequate or ineffective to test the legality of [his] detention." In re Jones, 226 F.3d 328, 333 (4th Cir. 2000) (internal quotation marks omitted); see 28 U.S.C. § 2255(e). Here, Petitioner challenges his sentence, and in Wheeler the Fourth Circuit held that § 2255 is inadequate or 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 at 429)(citing In re Jones, 226 F.3d at 333-34).
Petitioner has set forth no plausible allegation that the savings clause permits him to bring his claims under § 2241. First, a prisoner in federal custody should first proceed with a § 2255 motion before attempting to satisfy the "savings clause," and there is no indication that Petitioner ever filed a § 2255 action with the sentencing court to permit it to review his claims for relief prior to filing this Petition. See Hernandez v. Drew, 371 F. App'x 991, 993 (11th Cir. Apr. 7, 2010)[noting that a prisoner may not circumvent the requirements for filing a § 2255 motion merely by filing a § 2241 petition.]; Dinkins v. Thomas, No. 8:15-490-RMG, 2015 WL 1877434, at *4 (D.S.C. April 23, 2015); Hackett v. Atkinson, No. 9:13-1274-JFA-BM, 2013 WL 3972393, at *3 (D.S.C. July 31, 2013). Further, Petitioner cannot meet the second prong of the Wheeler test set out above because he cannot establish that, subsequent to his first § 2255 motion (if he could show that he in fact did file a § 2255 motion), the "settled substantive law [that established the legality of his sentence] changed and was deemed to apply retroactively on collateral review," as required by the second prong. Wheeler, 886 F.3d at 429. Petitioner, citing to the Fourth Circuit's recent unpublished opinion in United States v. Rhodes, 736 F. App'x 375 (June 7, 2018). appears to argue that his sentence should be reduced because the sentence was allegedly improperly enhanced based on his prior South Carolina drug convictions in contravention of Mathis v. United States, 136 S.Ct. 2243 (2016). In Mathis the Supreme Court applied the "categorical approach" in determining that Iowa's burglary statute could not serve as a predicate violent felony to enhance Mathis's sentence under the Armed Career Criminal Act (ACCA). See Mathis, 136 S.Ct. at 2257 [invalidating a sentence under the ACCA where the predicate state crime's elements were broader than those of the listed generic offense.].
It is well-settled in this circuit that the possibility that a § 2255 motion filed by a petitioner in the sentencing court might be rejected on the merits or found untimely or successive does not render the § 2255 remedy inadequate or ineffective. See In re Jones, 226 F.3d at 333 ["It is beyond question that § 2255 is not inadequate or ineffective merely because an individual is unable to obtain relief under that provision."]; In Re Vial, 115 F.3d at 1194 n. 5.
Rhodes involved a direct appeal in which the Fourth Circuit affirmed Rhodes' conviction, but vacated his sentence and remanded for resentencing without a career-offender enhancement that was based on a South Carolina conviction pursuant to S.C. Code Ann. § 44-53-445(A)(2003). In Rhodes the Fourth Circuit assumed for purposes of the appeal that S.C. Code Ann. § 44-53-445(A) is divisible. See Rhodes, 736 F. App'x at 379.
However, Petitioner cannot show that § 2255 is inadequate or ineffective to test the legality of his sentence because district courts in this Circuit and elsewhere have held that Mathis does not represent a substantive change in the law. See, e.g., Stewart v. United States, No. CR ELH-13-262, 2017 WL 2361089, at *5 (D. Md. May 31, 2017) [recognizing that Mathis did not announce a new substantive rule applicable to cases on collateral review]; Dimott v. United States, Nos. 2:06-cr-26-GZS, 2:16-cv-347-GZS, 2016 WL 6068114, at *3 (D. Maine Oct. 14, 2016)["The Supreme Court made clear that it was not breaking new ground in Mathis ...."]; Blackwell v. United States, No. 4:10-cr-00012, 2016 WL 5849384, at *5 (W.D. Va. Oct. 6, 2016)["By the Court's own admission, Mathis does not set a new rule."]. As recently noted by the Fourth Circuit, "Mathis merely clarified when a court must apply the categorical approach, rather than the modified categorical approach, in determining the nature of a prior conviction, and did not effect a change in the law." Davis v. Andrews, 727 F. App'x 782, 783 (4th Cir. Jun. 25, 2018)[affirming district court's order dismissing § 2241 petition challenging career offender designation based on Mathis because Mathis did not effect a change in the law](citing Muhammad v. Wilson, 715 F. App'x 251, 252 (4th Cir. 2017)).
Therefore, Petitioner cannot show that he meets the Wheeler test. As a result, this Court lacks jurisdiction in this matter. Petitioner's potential remedy may be to instead file a § 2255 petition in the District Court for the Eastern District of Tennessee, in which he was sentenced.
RECOMMENDATION
Accordingly, it is recommended that the Petition in this action be dismissed without prejudice and without requiring Respondent to file a return.
Petitioner's attention is directed to the important notice on the next page.
/s/_________
Bristow Marchant
United States Magistrate Judge April 9, 2019
Charleston, 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
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).