Opinion
C/A No. 0:20-176-RMG-PJG
02-24-2020
Kamil Johnson, Petitioner, v. Warden, W.E. Mackelburg, Respondent.
REPORT AND RECOMMENDATION
The petitioner, Kamil Johnson, a self-represented federal prisoner, filed this petition for 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 Civil Rule 73.02(B)(2)(c) (D.S.C.). Having reviewed the Petition in accordance with applicable law, the court concludes that it should be summarily dismissed.
I. Factual and Procedural Background
Petitioner is an inmate at the Federal Correctional Institution in Estill, South Carolina. Petitioner indicates that in 2002 he was convicted in the United States District Court for the District of Minnesota of murder in aid of racketeering and aiding and abetting murder in aid of racketeering pursuant to 18 U.S.C. § 1959 and sentenced to life imprisonment. (Pet., ECF No. 1 at 2.) Petitioner unsuccessfully challenged his conviction by way of direct appeal and a motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255. United States v. Johnson, Case No. 2-cr-13-PLS-FLN, ECF Nos. 200 & 209. In 2012, the United States Supreme Court held in Miller v. Alabama, 567 U.S. 460 (2012), that sentencing a juvenile to life imprisonment without parole is unconstitutional. Petitioner indicates that in 2015, based on Miller, the sentencing court resentenced him to forty-two years' imprisonment. (Pet., ECF No. 1-1 at 2-4.)
The court may take judicial notice of Petitioner's sentencing court records. Fusaro v. Cogan, 930 F.3d 241 n.1 (4th Cir. 2019); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239-40 (4th Cir. 1989).
Prior to his resentencing, Petitioner sought to argue to the court that because the murder in aid of racketeering statute, 18 U.S.C. § 1959(a)(1), provides only for two punishments—death or life imprisonment—his 2015 sentence is void because it is not a punishment established by Congress. United States v. Johnson, Case No. 2-cr-13-PLS-FLN, ECF No. 307 at 3-5. Petitioner's counsel refused to raise this argument, so Petitioner made the argument in a letter to the court. Id. The sentencing court considered and rejected Petitioner's argument because (1) Petitioner was represented by counsel and could not make pro se motions, (2) Miller did not prohibit life sentences where parole was available, and (3) the Supreme Court remanded Miller for resentencing even though the criminal statute at issue in that case only provided for punishments of death and life imprisonment.
Petitioner also made this argument to the sentencing court in a 2016 motion pursuant to 28 U.S.C. § 2255. Id., ECF No. 313 at 12-17. The sentencing court rejected the argument because it was successive and Petitioner had not obtained authorization to raise it from the United States Court of Appeals for the Eighth Circuit. Id., ECF No. 316. The sentencing court additionally found the argument was frivolous for the three reasons stated at resentencing. Id. at 5.
Petitioner now files this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner again argues that because the murder in aid of racketeering statute, 18 U.S.C. § 1959(a)(1) provides only for two punishments—death or life imprisonment—his 2015 sentence is void because it is not a punishment established by Congress.
II. Discussion
A. Standard of Review
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 Rules Governing § 2254 Cases, 28 U.S.C. § 2254; the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214; 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) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
This court is required to liberally construe pro se pleadings, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for "all civil actions").
B. Analysis
A petitioner cannot challenge his federal conviction and sentence through § 2241 unless he can show under the "savings clause" of § 2255(e) that a § 2255 motion is "inadequate or ineffective to test the legality of his detention." See 28 U.S.C. § 2255(e); see also Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (providing that if a federal prisoner brings a § 2241 petition that does not fall within the scope of the savings clause, the district court must dismiss the unauthorized habeas petition for lack of jurisdiction). The United States Court of Appeals for the Fourth Circuit has held that a petitioner must establish the following criteria to demonstrate that a § 2255 motion is inadequate or ineffective to test the legality of a prisoner's sentence:
(1) [A]t 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 415, 429 (4th Cir. 2018).
Here, Petitioner fails to meet the test in Wheeler because instead of relying on a change in the law that occurred after he was resentenced, Petitioner raises a claim that the sentencing court rejected. See 28 U.S.C. § 2255(e) (stating that a § 2241 petition "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") (emphasis added); see also In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997) ("[T]he remedy afforded by § 2255 is not rendered inadequate or ineffective merely because an individual has been unable to obtain relief under that provision . . . .") (internal citations omitted). Accordingly, Petitioner is unable to meet the second element of the Wheeler test. Therefore, under Fourth Circuit precedent, Petitioner is unable to establish that § 2255 is inadequate or ineffective to test the legality of his detention, and this case should be dismissed because this court lacks jurisdiction over the Petition. See Wheeler, 886 F.3d at 426 (holding that the failure to meet the requirements of the savings clause is a jurisdictional defect that may not be waived).
III. Conclusion
Accordingly, the court recommends that the Petition in the above-captioned case be dismissed without prejudice and without requiring the respondent to file a return. February 24, 2020
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' attention is directed to the important notice on the next page.
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
901 Richland Street
Columbia, South Carolina 29201
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).