Opinion
1:22-cv-00176
12-05-2024
JOHN FARELIN HILL, Petitioner, v. FCI MCDOWELL WARDEN, Respondent.
PROPOSED FINDINGS AND RECOMMENDATIONS
CHERYAL A. EIFERT, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Petitioner John Farelin Hill's Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (ECF No. 2). Respondent filed a response to the petition requesting that it be dismissed. (ECF No. 9). This case is assigned to the Honorable David A. Faber, United States District Judge, and was referred to the undersigned United States Magistrate Judge by Standing Order for submission of proposed findings of fact and recommendations for disposition (“PF & R”) pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons that follow, the undersigned respectfully RECOMMENDS that the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 be DENIED; Respondent's request for dismissal be GRANTED; and this action be DISMISSED and removed from the docket of the Court.
I. Factual and Procedural Background
On July 29, 2016, Hill pled guilty in the United States District Court for the Western District of Michigan to one count of being a felon in possession of firearms and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). United States v. Hill, No. 1:16-cr-121 (W.D. Mich., July 29, 2016), ECF No. 14. The underlying felony which made Hill subject to §922(g) was a conviction for second-degree murder, for which he spent twenty years in prison. Id., ECF No. 34 at 19. His guilty plea for the felon-inpossession charge included a waiver of his right to appeal or collaterally attack his conviction, except in the following circumstances: his sentence exceeded the statutory maximum; his sentence was based on an unconstitutional factor (race, religion, national origin, or gender); the District Court incorrectly determined the sentencing guideline range; the sentence was an unreasonable upward departure from the guidelines; his guilty plea was involuntary or unknowing; or his counsel provided ineffective assistance. Id., ECF No. 14 at 7. On December 7, 2016, Hill was sentenced to a 96-month term of imprisonment, followed by three years of supervised release. (Id., ECF No. 28). Hill did not file a direct appeal or a timely motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255.
Hill previously filed a §2241 petition in this District, raising the same issue he raises here; that his conviction should be overturned in accordance with Rehaif v. United States, 139 S.Ct. 2191, 2200 (2019). In Rehaif, the Supreme Court of the United States determined that in a prosecution under 18 U.S.C. §922(g), the government must prove both that the defendant knew he possessed a firearm and that he knew he was a member of a relevant category of persons barred from possessing firearms. Rehaif, 139 S.Ct. at 2200. Ruling on Hill's petition, this Court found that Hill could not challenge his conviction through §2241 because he was challenging the underlying conviction, not the execution of his sentence, and he did not meet the requirements of the savings clause found at 28 U.S.C. §2255(e). Hill v. Warden, No. 1:20-cv-00404, 2021 WL 5238210, at *3 (S.D. W.Va., Jan. 25, 2021), report and recommendation adopted, 2021 WL 4443068, (S.D. W.Va., Sept. 28, 2021). The Court dismissed the §2241 petition and declined to transfer the petition to the convicting court as a §2255 petition. Id.
In his instant petition, Hill repeats the same arguments as in his first petition. He asserts that his conviction should be overturned in accordance with Rehaif and that his petition is proper in a §2241 action because §2255 does not provide an adequate remedy. (ECF Nos. 2, 11). This second petition only differs from the first in that Hill cites a recent case from the United States Court of Appeals for the Sixth Circuit (“Sixth Circuit”), Conley v. United States, for the proposition that the savings clause applies and he can attack his conviction through §2241. (ECF Nos. 2, 11). In his response, Respondent argues that Hill's motion is a §2255 motion in disguise and does not meet the requirements of the savings clause. Respondent asks this Court to either dismiss Hill's petition or construe it as a §2255 petition and transfer the action to the Western District of Michigan. (ECF No. 9 at 4-7).
II. Standard of Review
Title 28 U.S.C. § 2255 is the exclusive remedy for challenging the validity of a federal conviction. See In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997). Although § 2241 provides a general grant of habeas corpus authority, the remedy under § 2241 is not an additional, alternative, or supplemental remedy to that prescribed under § 2255. To the contrary, “[i]t is only when ‘§ 2255 proves inadequate or ineffective to test the legality of detention,' that a federal prisoner may pursue habeas relief under § 2241.” Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citation omitted); In re Jones, 226 F.3d 328, 333 (4th Cir. 2000) (stating that in “a limited number of circumstances,” § 2255 is inadequate to test the legality of the prisoner's detention, and accordingly, the prisoner may file a habeas petition under § 2241). The “savings clause,” found at 28 U.S.C. § 2255(e), occasionally allows a § 2241 petition to take the place of a § 2255 motion, but not “merely ... because an individual is procedurally barred from filing a Section 2255 motion,” In re Vial, 115 F.3d at 1194, nor simply because relief is unavailable due to the gatekeeping provisions of § 2255. Young v. Conley, 128 F.Supp.2d 354, 357 (S.D. W.Va. 2001). Rather, in the context of a challenge to the validity of a conviction, the savings clause creates a narrow opening for a petitioner to file a § 2241 petition when his claim contains all three of the following characteristics: (1) at the time of his conviction, the settled law of the circuit or the Supreme Court established the legality of his conviction; (2) subsequent to his direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which he was convicted is now deemed not to be criminal; and (3) he cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law. In re Jones, 226 F.3d at 333-34. The petitioner bears the burden of establishing that a §2255 motion is inadequate or ineffective by satisfying the In re Jones criteria. See Hayes v. Ziegler, No. 5:11-cv-00261, 2014 WL 670850 (S.D. W.Va., Feb. 20, 2014), aff'd, 573 Fed.Appx. 268 (4th Cir. 2014). The Court lacks jurisdiction to entertain § 2241 petitions that do not meet the savings clause requirements, and therefore dismissal on that basis is without prejudice. Moore v. Young, No. 22-6336, 2022 WL 2951749, at *1 (4th Cir. July 26, 2022).
III. Discussion
Hill's petition should be dismissed for two reasons discussed herein: 1) his petition is a challenge to his conviction which does not satisfy the requirements of the savings clause, §2255(e); and 2) his petition is a successive §2241 petition, giving this court discretion to dismiss it under 28 U.S.C. §2244(a).
A. Savings Clause
Hill's petition cannot satisfy the requirements of the savings clause and, as such, must be dismissed for lack of jurisdiction. When evaluating a habeas petition under the savings clause, the court applies the substantive law of the circuit in which the petitioner was convicted, and the procedural law of the circuit in which the petitioner is incarcerated. Hahn v. Moseley, 931 F.3d 295, 301 (4th Cir. 2019). Hill was convicted in Michigan and is housed in West Virginia; therefore, the substantive law of the Sixth Circuit and the procedural law of the United States Court of Appeals for the Fourth Circuit (“Fourth Circuit”) are applied.
The fact that a prisoner is procedurally barred from bringing a §2255 motion is not sufficient to meet the requirements of the savings clause, Young v. Conley, 128 F.Supp.2d 354, 357 (S.D. W.Va. 2001), as that would defeat the purpose of §2255's gatekeeping provisions. As stated above, a petition collaterally challenging a conviction falls within the savings clause if it satisfies all three requirements laid out by the Fourth Circuit in In re Jones, and the petitioner bears the burden of proving his petition meets those requirements. Hood v. United States, 13 Fed.Appx. 72 (4th Cir. 2001); McGee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979). Respondent does not contest that Hill's petition satisfies the first and third requirements of Jones, but claims that the petition fails the second requirement, because there was not a change in substantive law that made Hill's conduct non-criminal. (ECF No. 9 at 3). The undersigned agrees with Respondent.
Hill has not met the second prong of the savings clause because Rehaif did not decriminalize the act of being a felon in possession of a firearm, as noted by courts in both the Fourth and Sixth Circuits, which have examined this question at different levels of generality. Some of the district courts in these circuits have determined that, because being a felon in possession of a firearm remained a crime after Rehaif, Rehaif did not alter the substantive law, and so a Rehaif challenge could never satisfy the savings clause-meaning, a Rehaif claim could never be brought in a § 2241 petition. See Sandlain v. Warden, FCI McDowell, No. 1:20-00424, 2022 WL 4490188, at *3 (S.D. W.Va., Sept. 27, 2022) (“[Plaintiff] cannot satisfy the second prong of the savings clause test because [] being a felon in possession of a firearm is still a valid criminal offense.”); Hall v. Hudgins, No.: 3:19-CV-134, 2022 WL 313771, at *3 (N.D. W.Va., Feb. 2, 2022) (reasoning that Rehaif was not a substantive change in law because “the same classes of people that were prohibited from possessing a firearm before Rehaif are still prohibited from possessing a firearm after Rehaif.”); Parrish v. Young, No. 5:20-00710, 2021 WL 3504643, at *4 (S.D. W.Va., July 13, 2021) (collecting district court cases within the Fourth Circuit holding that Rehaif was not a change in substantive law); United States v. Smart, No. 5:18-cr-00647, 2021 WL 5040467, at *2 (N.D. Ohio, Oct. 29, 2021) (citing United States v. Jones, No. 3:16-CR-059, 2021 WL 325922, at *5 (S.D. Ohio Feb. 1, 2021)) (“Possession of a firearm by a person convicted of a felony was illegal both before and after Rehaif was decided.”). Under this first approach, Hill's claim is easily dismissed, because Rehaif claims summarily do not meet the second prong of In re Jones and thus cannot be brought in a § 2241 petition.
Other courts in both circuits have entertained the possibility that a Rehaif claim might satisfy the savings clause if the defendant's individual conduct was made noncriminal by Rehaif-in other words, if the defendant could show that he was actually innocent of the crime because he did not know he was a felon at the time he possessed the firearm. Ocampo v. Hemingway, No. 2:19-cv-12818, 2022 WL 4542080, at *7 (E.D. Mich. Sept. 28, 2022) (finding that petitioner could not raise a Rehaif claim through § 2241 only because he did not show that no reasonable juror could have found him guilty, implying that a Rehaif claim can be brought through § 2241 if the petitioner can prove innocence); Church v. Butler, No. 6:22-CV-121-CHB, 2022 WL 3974245, at *2 (E.D. Ky. Aug. 31, 2022) (assuming without deciding that a Rehaif claim could be raised in a § 2241 petition if the petitioner could prove he did not know he was a felon at the time of possession); Harrison v. Streeval, No. 7:21-cv-00267, 2022 WL 879461 at *4 (W.D. Va. Mar. 24, 2022) (explaining that the second prong of the Jones test “requires an assessment of the petitioner's conduct to determine whether he was convicted of conduct that is no longer criminal, effectively asking whether the petitioner still could be convicted of that crime after the change in law”). Still other courts have found that a Rehaif claim does indeed “open[] the doors of the courthouse for consideration of a” § 2241 petition. See, e.g., Moore v. Warden, FCI Edgefield, 557 F.Supp.3d 704, 712 (D.S.C. 2021) (“The specific issue for the savings clause analysis is whether the conduct of which the petitioner was convicted is still a source of criminal liability, not whether it is illegal to violate § 922(g)(1).”) (internal quotations omitted); Carson v. Dobbs, No. 0:21-cv-01467, 2022 WL 939863, at *3 (D.S.C., Mar. 29, 2022) (adopting the Moore analysis and finding the court had jurisdiction to consider a Rehaif claim in a § 2241 petition); Brundidge v. Streeval, No. 7:20-cv-00553, 2022 WL 824843, at *6 (W.D. Va., Mar. 18, 2022) (approving of the Moore analysis, stating, it “precisely tracks the language in Jones.”). In these cases, the Court found that, while it had jurisdiction to consider the merits of the claim, the petitioner promptly ran “into an imposing hurdle: the procedural default doctrine,” which ultimately required the Court to consider the “actual innocence” of the petitioner based upon his history as a felon. Moore, 557 F.Supp.3d at 715. As the Moore Court explained, “this standard is particularly difficult to meet in the context of a Rehaif error.” Id.
Ocampo and Church both involved defendants housed within the Sixth Circuit, so the Sixth Circuit was applying its own procedural law on the savings clause. However, the Sixth Circuit's “actual innocence” test for the savings clause as applied to those cases is effectively the same as the second prong of In re Jones: “He can make [a showing of actual innocence] where, after his conviction became final, the Supreme Court re-interprets the substantive terms of the criminal statute under which he was convicted in a manner that establishes his conduct did not violate the statute.” Church, 2022 WL 3974245, at *2 (citing Wooten v. Cauley, 677 F.3d 303, 307-08 (6th Cir. 2012)).
It is unnecessary for this Court to decide if a Rehaif claim can ever be brought through a § 2241 petition, however, because even under the case-specific analysis used in Ocampo and Moore, Hill cannot successfully avail himself of the savings clause. He has not met his burden of proving that his conduct was made non-criminal because he was not aware of his felon status at the time he possessed the firearm. Hill does not claim that he did not know he was a felon at the time he possessed the firearm, (see ECF Nos. 2, 11). Moreover, although Hill's plea agreement does not explicitly establish that Hill knew at the time of the offense that he was a felon, United States v. Hill, No. 1:16-cr-121 (W.D. Mich., July 29, 2016), ECF No. 14 at 7, Hill had previously spent twenty years in prison for a second-degree murder conviction. Given the length of his prior sentence and the nature of the crime, it is fair to infer that Hill knew he had been convicted of a felony (a crime punishable by a sentence exceeding one year). See Greer v. United States, 141 S.Ct. 2090, 2097 (2021) (“Felony status is simply not the kind of thing that one forgets. [] A jury will usually find that a defendant knew he was a felon based on the fact that he was a felon.”) (internal citation omitted) (emphasis in original); Brown v. Owens, 2:20-cv-2082-SHM-tmp, 2022 WL 13973572, at *4 (W.D. Tenn., Oct. 21, 2022) (finding that, absent any contrary evidence, the petitioner's two prior felony convictions, for which he spent eight years in prison, implied his knowledge of those convictions); Robinson v. United States, No. 3:19-cv-00514, 2022 WL 4487975, at *10 (M.D. Tenn., Sept. 27, 2022) (stating there was good reason to believe petitioner was aware of his felony status at the time of possession, where his previous conviction was for criminal homicide); United States v. Harper, No. 18-cr-20524, 2020 WL 5412178, at *2 (E.D. Mich., Sept. 9, 2020) (“[G]iven that Harper spent over six years in prison for one of his convictions [] it is not plausible that he was unaware that he was [a felon], nor is it plausible that he would have changed his plea.”). Hill has not claimed-much less shown-that his conduct was made non-criminal by Rehaif. Therefore, even taking the most petitioner-friendly approach to Rehaif and the savings clause, Hill's petition cannot meet the second prong of In re Jones.
Hill cites Hoffman v. Breckon in support of his argument that his petition satisfies the second In re Jones requirement. (ECF No. 11 at 3). In its unpublished per curiam opinion in Hoffman, the Fourth Circuit reviewed a District Court's dismissal of a similar § 2241 Rehaif claim. Like Hill, Hoffman contended that his § 922(g) conviction was made invalid by Rehaif and that he satisfied all three prongs of the savings clause to bring his challenge via § 2241. Hoffman, No. 20-6322, 2022 WL 1125387 (4th Cir. April 15, 2022). The District Court held that Hoffman could not satisfy the second savings clause requirement. Id. Hill incorrectly states that the Fourth Circuit reversed the District Court's holding. (ECF No. 11 at 3). To the contrary, the Fourth Circuit vacated and remanded the case, stating that the record was insufficient to determine whether Hoffman could meet the second requirement of the savings clause and finding that the District Court needed to reconsider its decision in light of Third Circuit law, the evidence that was introduced at Hoffman's trial, and Greer v. United States, which was decided after the District Court dismissed the petition. Hoffman, 2022 WL 1125387, at *2. While Hoffman arguably supports the position that Rehaif claims are not entirely barred from review under § 2241, it simply does not bolster Hill's claim in any other way, as the Fourth Circuit did not find that Hoffman satisfied the second prong of the savings clause under In re Jones.
As emphasized by the Court in Moore, the fact that Hill had not previously raised the Rehaif issue on direct appeal would make his claim procedurally defaulted. See Wallace v. United States, 43 F.4th 595, 602 (6th Cir. 2022). Therefore, even if Hill's petition met the requirements of the savings clause to be considered through § 2241, it would still need to overcome the hurdle of procedural default. See Moore, 557 F.Supp.3d at 712 (finding that, although the petitioner's Rehaif claim satisfied the savings clause, it was barred by procedural default). To overcome a procedural default, a petitioner must either show actual innocence or demonstrate cause and prejudice: that there was a sufficient excuse for failing to assert the claim earlier and that the petitioner will be harmed if the claim is not brought now. Wallace, 43 F.4th at 602 . Hill has not shown cause, as he has offered no excuse for not raising his Rehaif claim earlier; although Rehaif was not decided for several years after Hill's conviction, Hill could have challenged his conviction using the same arguments that Rehaif himself made on appeal. See Hatcher v. United States, No. 2:19-CV-00037-JRG-CRW, 2022 WL 394692 (E.D. Tenn., Feb. 8, 2022) (stating that a petitioner's failure to raise a Rehaif claim is not excused by the fact that Rehaif had not been decided at the time, since any defendant can raise the arguments that the Court adopted in Rehaif). Likewise, he has made no showing of actual innocence. Without an excuse for the procedural default and in the absence of actual innocence, Hill's Rehaif claim is procedurally defaulted.
Momentarily setting aside the issues with the savings clause and the procedural default, Hill's Rehaif claim ultimately has no merit. If Hill had raised his claim through a timely § 2255 petition, this Court would review his petition under plain error, Wallace, 43 F.4th at 603, and he would need to prove there was a “a reasonable probability that but for the alleged failure to inform him of the knowledge of status element, he would not have entered the plea.” United States v. Hobbs, 953 F.3d 853, 857 (6th Cir. 2020) (internal brackets omitted). Hill has offered no evidence that he would not have pled guilty if he knew the full extent of the government's burden. Because knowledge can be inferred from status, Greer v. United States, 141 S.Ct. 2090, 2097 (2021), the government rarely has any difficulty proving that a defendant had knowledge, and typically a defendant who proceeds to trial will stipulate their felon status to avoid introducing prejudicial details of their previous crimes to the jury. Wallace, 43 F.4th at 603. A defendant would have nothing to gain from going to trial just to contest his knowledge of status where he has no evidence to suggest he lacked knowledge; he would be convicted at trial and lose the benefit of a plea deal. Hobbs, 953 F.3d at 858 (6th Cir. 2020). In Hill's case, the government would have had no difficulty proving that he knew he was a felon. Hill had spent two decades in prison for second-degree murder. Absent some compelling evidence of amnesia, any reasonable juror would readily assume that Hill knew he was a felon. Proceeding to trial would have almost guaranteed a longer prison sentence, so it would have been in Hill's best interest to plead guilty. There is no reasonable probability that Hill would have forgone the plea had he been aware of the government's burden to prove knowledge of status, meaning there was no plain error, and Hill would not be entitled to relief-even if he could overcome the savings clause and the procedural default, which he has not done.
Hill also cites Conley v. United States, No. 20-3887, 2022 U.S. App. LEXIS 3909 (6th Cir. Feb. 11, 2022) as supporting his petition. (ECF No. 2 at 4). Conley confirmed that Rehaif announced a new substantive rule that applied retroactively to initial § 2255 motions filed within the Sixth Circuit. According to Hill, Conley allows his petition to be reviewed on the merits by this Court. 2022 U.S. App. LEXIS 3909 at *3. For Hill to be correct, his petition must still satisfy all of the requirements of the Fourth Circuit's savings clause test, which it does not. As such, this Court is without subject matter jurisdiction to consider Hill's Rehaif claim, and Conley is irrelevant. However, taking a peek at the merits of the claim, the undersigned further notes that in Conley, the Sixth Circuit determined that Conley had procedurally defaulted his Rehaif claim, but remanded the case to the District Court to determine if Conley could show prejudice to excuse the default. United States v. Conley, No. 5:10CR490, 2022 WL 1555404, at *2 (N.D. Ohio May 17, 2022). On remand, the District Court held that “[p]rejudice is lacking where the record clearly establishes the requisite knowledge of the prior felony conviction.” Id. (citing Conley, 2022 U.S. App. LEXIS 3909). As Conley previously had been sentenced to 18-months' imprisonment for cocaine trafficking, the District Court found that Conley knew at the time he possessed the firearm that he had been previously sentenced to a term of imprisonment exceeding one year. Accordingly, he had the requisite knowledge of his felony status and was not entitled to relief. Id. Thus, as stated before, a merits-based review of Hill's petition is unlikely to yield relief.
Lastly, the Respondent also notes that Hill cannot meet the second prong of In re Jones, because he did not file a direct appeal and § 2255 motion. The undersigned again agrees with Respondent. To satisfy all of the requirements of In re Jones, the change in substantive law must occur after the direct appeal and first § 2255 motion were filed. 226 F.3d 328, 334 (4th Cir. 2000). Because Hill did not file a direct appeal or a § 2255 motion, his current § 2241 petition simply cannot satisfy the second savings clause requirement. See Carter v. Warden, No. 8:20-cv-03269, 2020 WL 13065006, at *5 (D.S.C., Oct. 29, 2020), report and recommendation adopted, 2022 WL 342939 (D.S.C., Feb. 04, 2022) (dismissing petitioner's § 2241 petition because he had not previously filed an appeal or § 2255 motion).
For the reasons stated, the undersigned FINDS that Hill's petition has not met the requirements of the savings clause and his challenge to his conviction cannot be brought through § 2241. Given that Hill's claims are not properly brought under § 2241, his petition “must either be dismissed or construed as a section 2255 motion.” Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000). The Fourth Circuit has declined to impose “a blanket policy of mandatory transfer of unauthorized successive petitions to th[e] court for consideration as [pre-filing authorization] motions;” instead, leaving district courts the discretion to determine whether the transfer of a § 2255 motion is “in the interest of justice.” Jones v. Braxton, 392 F.3d 683, 691 (4th Cir. 2004). Here, Hill cannot meet the gatekeeping provisions of § 2255 because he cannot demonstrate a new rule of constitutional law and a § 2255 motion would be untimely. Therefore, the undersigned FINDS that the interest of justice would not be served by construing the petition as a motion under § 2255 and transferring it to the Sentencing Court or the Sixth Circuit. Instead, this action should be dismissed for failure to state a claim under § 2241.
B. Successive §2241 Petition
Respondent explicitly makes note in his brief that Hill brought a previous § 2241 petition raising the same ground as he does here. (ECF No. 9 at 2, footnote 1). Title 28 U.S.C. § 2244(a) provides that no district court “shall be required” to entertain a petition for a writ of habeas corpus if another court has already dismissed a petition on the merits. While the United States Court of Appeals for the Third Circuit treats § 2244(a) as allowing courts to dismiss successive § 2241 petitions at their discretion, Harden v. Warden Canaan USP, 998 F.3d 70, 74 (3rd Cir. 2021) (“We hold that § 2244(a) does not bar jurisdiction over successive §2241 petitions.”), courts in this circuit, the Fourth Circuit, have interpreted § 2244(a) to mean that successive § 2241 petitions destroy subject matter jurisdiction. Edwards v. Hutchinson, No. 9:21-01113-DCC-MHC, 2021 WL 5361836, at *3, (D.S.C. Aug. 24, 2021) (collecting cases); McLean v. United States, 3:20-cv-439-MOC, 2020 WL 5095585 (W.D. N.C. Aug. 28, 2020) (holding that petitioner cannot use § 2241 to raise the same challenges to his conviction already denied in a prior § 2241 petition); Quiller v. Wilson, No. 1:12cv426, 2012 WL 6725612, at *4 (E.D. Va. Dec. 21, 2012) (“It has become well established that § 2244(a), as amended by the AEDPA, bars second or successive § 2241 applications that seek to relitigate issues that were adjudicated in a prior § 2241 proceeding.”); Gill v. Wilson, No. 1:12cv401, 2013 WL 2240112, at *1, (E.D. Va. May 21, 2013). Although most successive § 2241 petitions are properly challenging the execution of the petitioner's sentence, courts within the Fourth Circuit have dismissed successive § 2241 petitions even where the petitions were challenging the underlying conviction through the savings clause, as Hill attempts here. See Cain v. Streeval, No. 7:21cv00338, 2022 WL 2986779 (W.D. Va., July 28, 2022); Harding v. United States, No. 5:18-cv-03248-JMC-KDW, 2018 WL 7823059 (D.S.C., Dec. 17, 2018); McLean v. Warden, FCI Estill, No. 9:13-3022-MGL-BM, 2014 WL 4954882 (D.S.C., Sept. 30, 2014). In several unpublished opinions, the Fourth Circuit has upheld district court orders dismissing successive § 2241 petitions as barred by § 2244(a). Edwards v. Perdue, No. 5:14CV136, 2015 WL 2354702 (N.D. W.Va. Apr. 30, 2015), affd, 613 Fed.Appx. 276 (4th Cir. 2015); McLean v. Warden, FCI Estill, No. 9:13-3022-MGL-BM, 2014 WL 4954882 (D.S.C. Sept. 30, 2014), affd sub nom., 599 Fed.Appx. 78 (4th Cir. 2015). Additionally, the United States Courts of Appeals for the Second, Seventh, and Ninth Circuits have held or noted in published opinions that § 2244(a) bars successive § 2241 petitions directed to the same issue. Edwards, 2015 WL 2354702, at *2, (N.D. W.Va., May 15, 2015) (citing cases from each court of appeals). Because Hill has already filed one § 2241 petition seeking relief based on Rehaif, and Conley did not change the savings clause analysis, the undersigned FINDS that his petition should be dismissed as successive.
IV. Proposal and Recommendations
For the aforementioned reasons, the undersigned respectfully PROPOSES that the District Court confirm and accept the foregoing findings and RECOMMENDS that Hill's Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, (ECF No. 2), be DENIED; Respondent's request for dismissal, (ECF No. 9), be GRANTED; and this action be DISMISSED, with prejudice, and removed from the docket of the Court.
The parties are notified that this “Proposed Findings and Recommendations” is hereby FILED, and a copy will be submitted to the Honorable David Faber, United States District Judge. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Rules 6(d) and 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen days (filing of objections) and three days (if received by mail) from the date of filing this “Proposed Findings and Recommendations” within which to file with the Clerk of this Court, specific written objections, identifying the portions of the “Proposed Findings and Recommendations” to which objection is made and the basis of such objection. Extension of this time period may be granted by the presiding District Judge for good cause shown.
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. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); 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). Copies of such objections shall be provided to the opposing party, Judge Faber, and Magistrate Judge Eifert.
The Clerk is instructed to provide a copy of this “Proposed Findings and Recommendations” to Petitioner and counsel of record.
FILED: November 29, 2022