Opinion
Civil Action No. 5:22-CV-321
2023-08-15
Dennis J. JOHNSON, Petitioner, v. Warden BROWN, Respondent.
Dennis J. Johnson, Glenville, WV, Pro Se. Christopher James Prezioso, Maximillian F. Nogay, Morgan McKee, United States Attorney's Office, Wheeling, WV, for Respondent.
Dennis J. Johnson, Glenville, WV, Pro Se. Christopher James Prezioso, Maximillian F. Nogay, Morgan McKee, United States Attorney's Office, Wheeling, WV, for Respondent. ORDER DISMISSING PETITION JOHN PRESTON BAILEY, UNITED STATES DISTRICT JUDGE
On December 30, 2022, the pro se petitioner, Dennis J. Johnson ("petitioner"), filed a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. [Doc. 1]. Petitioner is a federal inmate who is housed at FCI Gilmer in Glenville, West Virginia, and is challenging the legality of his conviction and sentence from the United States District Court for the Middle District of Florida. On May 3, 2023, respondent filed a Motion to Dismiss. [Doc.27]. Petitioner filed a memorandum in response. [Doc.33]. Respondent then sought leave to file an amended memorandum in support of their petition in light of the Supreme Court's recent decision in Jones v. Hendrix , 599 U.S. 465, 143 S. Ct. 1857, 216 L.Ed.2d 471 (2023), which the Court granted. Respondent filed an amended memorandum [Doc. 36], and petitioner filed a motion to amend his response, along with an amended response. [Docs. 43, 43-1]. For the reasons that follow, the Motion to Dismiss will be granted and the petition will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The information in this section is taken from the petitioner's criminal docket available on PACER. See United States v . Johnson et al, 8:11-CR-00012-JDW-AEP-1 (M.D. FI. 2011). Philips v. Pitt Cnty. Mem. Hosp., 572 F. 3d 176, 180 (4th Cir. 2009) (courts "may properly take judicial notice 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 contents of court records.' ").
A. Conviction and Sentence
On January 12, 2011, an Indictment was filed in the United States District Court for the Middle District of Florida charging petitioner with: Count One, conspiracy to possess with intent to distribute five kilograms or more of a mixture or substance containing cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(A)(ii); Count Two, possession of a firearm in furtherance of a drug trafficking offense in violation of 21 U.S.C. §§ 924(c)(1)(A) and 18 U.S.C. § 2; and Count Three, being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Petitioner entered a plea of guilty, pursuant to a plea agreement, to Counts One and Two; Count Three was dismissed on a motion of the United States. On July 18, 2011, petitioner was sentenced to a total term of 248 months imprisonment. Petitioner's current projected release date, via good conduct time, is October 15, 2028.
B. Direct Appeal
Petitioner did not timely file an appeal. On November 17, 2011, the district court denied a letter which it construed as a Motion for Leave to File Belated Appeal.
C. § 2255
On June 4, 2012, petitioner filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. Petitioner argued, first, that he received ineffective assistance of counsel because he entered his plea agreement based on erroneous advice about the length of his sentence; second, that he received ineffective assistance of counsel because counsel erroneously advised him his sentences would be concurrent; third, that he received ineffective assistance of counsel because of defense counsel's failure to timely file a notice of appeal; and, fourth, that the Government breached the terms of the plea agreement by not providing defendant the opportunity to earn additional levels to bring his sentence down to 60 or 72 months. On February 25, 2014, the motion was denied.
D. Petitioner's Claims
In the instant petition, petitioner raises two grounds challenging the legality of his conviction and sentence. First, that the offense for which he was convicted is no longer a crime following United States v. Davis , 588 U.S. 445, 139 S.Ct. 2319, 204 L.Ed.2d 757 (2019). Second, that in light of Davis , his sentencing as a career offender is unconstitutional.
E. Motion to Dismiss
On May 3, 2023, respondent filed a Motion to Dismiss. [Doc. 27]. In its memorandum in support, respondent argued that petitioner was unable to bring his claims under § 2241 because he could not demonstrate that § 2255 was inadequate or ineffective by meeting the tests set forth in either In re Jones , 226 F.3d 328, 333-34 (4th Cir. 2000) or United States v. Wheeler , 886 F.3d 415, 428 (4th Cir. 2018). However, on June 22, 2023, the Supreme Court issued Jones v. Hendrix , 599 U.S. 465, 143 S. Ct. 1857, 216 L.Ed.2d 471 (2023), which abrogated In re Jones . Thus, on July 3, 2023, respondent sought, and this Court granted, leave to file an amended memorandum incorporating Jones v. Hendrix. Therein, respondent argues that this Court must dismiss the instant petition for lack of jurisdiction because § 2241 cannot be used to collaterally attack a conviction or sentence based on an intervening change in statutory interpretation, such as the one argued by petitioner. In his amended response [Doc. 43-1], petitioner argues that respondent procedurally defaulted on any arguments based on Jones v. Hendrix. Further, he argues that claims based on actual innocence are not barred based on In re Jones.
II. LEGAL STANDARDS
A. Motion to Dismiss - Subject Matter Jurisdiction
A party may move to dismiss an action for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The burden of proving subject matter jurisdiction on a Rule 12(b)(1) motion to dismiss is on the party asserting federal jurisdiction. A trial court may consider evidence by affidavit, deposition, or live testimony without converting the proceeding to one for summary judgment. Adams v. Bain , 697 F.2d 1213, 1219 (4th Cir. 1982); Mims v. Kemp , 516 F.2d 21 (4th Cir. 1975). Because the court's very power to hear the case is at issue in a Rule 12(b)(1) motion, the trial court is free to weigh the evidence to determine the existence of its jurisdiction. No presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. See Materson v . Stokes, 166 F.R.D. 368, 371 (E.D. Va. 1996). Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action. See Fed. R. Civ. P. 12(h)(3).
B. Pro Se Litigants
As a pro se litigant, the petitioner's pleadings are accorded liberal construction and held to "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner , 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). However, even under this less stringent standard, the petition in this case is subject to summary dismissal. The requirements of liberal construction do not mean that the Court can ignore a clear failure to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990). As discussed more fully below, the petitioner is not entitled to relief under 28 U.S.C. § 2241, and this matter is due to be dismissed.
III. ANALYSIS
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).
Second or successive motions under § 2255 are only permitted when based on "newly discovered evidence," § 2255(h)(1) or "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court," § 2255(h)(2). 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 "saving 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). Until recently, several courts, including the Fourth Circuit, had held that § 2255 was "inadequate or ineffective" when a prisoner sought relief based on a new interpretation of a criminal statute subsequent to petitioner's trial, appeal, and first § 2255 motion. However, after the petition and Motion to Dismiss were filed in this case, the Supreme Court held that "Section 2255(e)'s saving clause does not authorize that end-run around [Antiterrorism and Effective Death Penalty Act of 1996]." Jones v. Hendrix , 599 U.S. 465, 143 S. Ct. 1857, 1860, 216 L.Ed.2d 471 (2023). Instead, the saving clause is limited to "unusual circumstances in which it is impossible or impracticable for the prisoner to seek relief from the sentencing court." Id. at 1866. Absent these unusual circumstances, a petitioner is not permitted to proceed with challenges to his conviction or sentence under § 2241. See Id . at 1869 ("The inability of a prisoner with a statutory claim to satisfy those conditions does not mean that he can bring his claim in a habeas petition under the saving clause. It means that he cannot bring it at all. Congress has chosen finality over error correction in his case.") (emphasis added); see also Hall v . Hudgins , No. 22-6208, 2023 WL 4363658, at *1 (4th Cir. July 6, 2023) (unpublished) (per curiam) (following Jones , a petitioner cannot use § 2241 to bring a successive collateral attack on the validity of his sentence).
See In re Jones , 226 F.3d 328, 333-34 (4th Cir. 2000) to challenge conviction; and United States v. Wheeler , 886 F.3d 415, 428 (4th Cir. 2018) to challenge sentence.
Petitioner has not shown that it is impossible or impracticable to present his claims to his sentencing court. Accordingly, petitioner cannot present his claims in a § 2241 petition, and this Court is without jurisdiction to entertain his claims. Insofar as petitioner argues that respondent has procedurally defaulted arguments based on Jones v. Hendrix , 599 U.S. 465, 143 S. Ct. 1857, 216 L.Ed.2d 471 (2023) by filing its motion before that case was decided, such claim is clearly without merit. Further, even if respondent could somehow waive such an argument, it would not allow this Court to exercise jurisdiction over a petition which petitioner must present to his sentencing court. 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, 118 S.Ct. 1003, 1012-16, 140 L.Ed.2d 210 (1998); Reinbold v. Evers , 187 F.3d 348, 359 n.10 (4th Cir. 1999).
IV. CONCLUSION
For the foregoing reasons, the Motion to Dismiss [Doc. 27] is hereby GRANTED, and the Petition is hereby DENIED and DISMISSED WITHOUT PREJUDICE. Further, petitioner's motion to amend his response [Doc. 43] is hereby GRANTED, and the pending Motion to Expedite Proceedings [Doc. 25] is hereby DENIED AS MOOT.
It is so ORDERED.