Opinion
C/A 5:22-3677-JD-KDW
07-12-2023
Phillip Randolph Johnson, Jr., Petitioner, v. R.S. Dunbar, Warden, Respondent.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
Phillip Randolph Johnson, Jr. (“Petitioner”) filed this Petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's Motion to Dismiss. ECF No. 18. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. ECF No. 22. Petitioner filed a Response to Respondent's Motion to Dismiss on February 27, 2023, and Respondent filed a Reply to Response on March 9, 2023. ECF Nos. 29, 33.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the court grant Respondent's Motion to Dismiss.
I. Factual and Procedural Background
On October 3, 2019, Petitioner entered a guilty plea to conspiracy to possess with intent to distribute methamphetamine, possession with intent to distribute cocaine, possession with intent to distribute methamphetamine, possession with intent to distribute methamphetamine and cocaine, felon in possession of a firearm, and possession of a firearm in furtherance of drug trafficking. See United States v. Johnson, C/A No.: 3:19-cr-00093-DJH-HBB-1 (W.D. Ky. Jan. 14, 2020), ECF Nos. 23, 46. On January 14, 2020, Petitioner was sentenced to 180-months imprisonment. Id., ECF No. 32. Petitioner filed an appeal on January 24, 2020, challenging his judgment and sentence, and on October 1, 2020, the Sixth Circuit Court of Appeals (“Sixth Circuit”) affirmed the judgment. Id., 46. On January 19, 2021, Petitioner filed a motion to vacate judgment under 28 U.S.C. § 2255, which he amended on January 29, 2021. Id., ECF No. 55, 56. On October 27, 2021, the court issued an order dismissing Petitioner's motion and amended motion to vacate his judgment. Id., ECF Nos. 80, 81.
Petitioner filed the instant habeas petition arguing his conviction for felon in possession of a firearm is unconstitutional and his sentence as a career offender is invalid. ECF No. 1-1 at 1418.
II. Discussion
A. Standard on Motion to Dismiss
Dismissal is appropriate under Fed.R.Civ.P. 12(b)(1) where the court lacks subject-matter jurisdiction. A motion to dismiss under Rule 12(b)(1) examines whether a complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Indeed, the presence of a few conclusory legal terms does not insulate a complaint from dismissal when the facts alleged in the complaint cannot support the legal conclusion. Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Merriweather v. Reynolds, 586 F.Supp.2d 548, 554 (D.S.C. 2008). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
Petitioner filed this § 2241 petition seeking to challenge his conviction for felon in possession of a firearm and his sentence as a career offender. ECF Nos. 1, 1-1. Petitioner alleges his felon in possession of a firearm conviction is unconstitutional under the holding in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S.Ct. 2111 (2022). ECF No. 1-1 at 7-13. Petitioner also argues his sentence as a career offender is no longer valid as his conviction for third degree assault no longer qualifies as a crime of violence under the holding in Borden v. United States, 141 S.Ct. 1817 (2021). Id. at 13-18. Respondent moves to dismiss Petitioner's § 2241 petition arguing the court lacks subject matter jurisdiction because Petitioner failed to meet the § 2255 saving clause tests under In re Jones, 226 F.3d 328, 333 (4th Cir. 2000) and United States v. Wheeler, 886 F.3d 415, 423 (4th Cir. 2018). ECF No. 18-1 at 5-10.
Defendants convicted in federal court must ordinarily 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)). In contrast, a motion filed under § 2241 is typically used to challenge the way a sentence is executed. See In re Vial, 115 F.3d at 1194 n.5. A petitioner cannot challenge his federal conviction and sentence under § 2241 unless he can satisfy the § 2255 savings clause as follows:
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).
The Fourth Circuit has held that a § 2255 motion is inadequate or ineffective to test the legality of a Petitioner's detention when:
(1) at the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law.In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000), abrogated by, Jones v. Hendrix, 599 U.S.___, 2023 WL 4110233 (June 22, 2023).
The Fourth Circuit also recognized that a Petitioner may contest the legality of a sentence by showing § 2255 is inadequate and ineffective because:
(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.U.S. v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018) abrogated by, Jones v. Hendrix, 599 U.S.___, 2023 WL 4110233 (June 22, 2023).
The Supreme Court recently issued an opinion in Jones v. Hendrix, 599 U.S.___, 2023 WL 4110233 (June 22, 2023) that addressed when a § 2255 remedy was inadequate or ineffective to test the legality of a prisoner's detention such that a petitioner may bring a §2241 habeas petition. In Jones v. Hendrix, the Court found that “§ 2255(e)'s saving clause does not permit a prisoner asserting an intervening change in statutory interpretation to circumvent AEDPA's restrictions on second or successive § 2255 motions by filing a § 2241 petition.” Id., at *5. The Court noted that § 2255(h) limited second or successive § 2255 motions to those that contain newly discovered evidence, or a new rule of constitutional law made retroactive to cases on collateral review. Id., at *7. Addressing petitions that raised challenges that fall outside of § 2255(h), the Court held “[t]he 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.” Jones v. Hendrix, 2023 WL 4110233, at *9.
The undersigned finds the decision in Jones v. Hendrix abrogated the holdings in In re Jones and Wheeler. See Hall v. Hudgins, No. 22-6208, 2023 WL 4363658, at *1 (4th Cir. July 6, 2023) (explaining that in light of the Supreme Court's recent decision in Jones v. Hendrix, petitioner cannot pursue his claims in a § 2241 petition). Because Petitioner seeks to utilize these savings clause tests to bring a § 2241 petition challenging his possession of a firearm by a felon conviction and his sentencing as a career offender, the undersigned finds the court no longer has subject matter jurisdiction to consider these claims. The undersigned recommends Respondent's Motion to Dismiss be granted.
To the extent the court determines the Wheeler savings clause test is still applicable to Petitioner's claim that his career offender sentence is invalid, the undersigned recommends the court grant Respondent's motion to dismiss this claim. Petitioner has failed to show that § 2255 is inadequate to test the legality of his sentence, and therefore the court lacks jurisdiction to consider his claim. Although Petitioner relies on Borden to support his claim that the sentencing court erred when it used his state law conviction for third degree assault to sentence him as a career offender, Petitioner has failed to cite to any case law in Borden or any other Sixth Circuit or United States Supreme Court case to show Borden applies retroactively to cases on collateral review.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends that the court grant Respondent's Motion to Dismiss for lack of subject matter jurisdiction, ECF No. 18, deny the Petition for writ of habeas corpus, and dismiss the Petition without prejudice.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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 2317
Florence, South Carolina 29503
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).