Opinion
C/A 8:20-cv-02428-MBS-JDA
08-07-2020
Hildra Jones, Petitioner, v. Warden Bryan K. Dobbs, Respondent.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge.
Hildra Jones (“Petitioner”) is a prisoner in the custody of the Federal Bureau of Prisons and is currently incarcerated in South Carolina at the Williamsburg Federal Correctional Institution. Proceeding pro se, he brings this habeas action under 28 U.S.C. § 2241. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned Magistrate Judge is authorized to review such petitions for relief and submit findings and recommendations to the District Court. For the reasons below, this action is subject to summary dismissal for lack of jurisdiction.
BACKGROUND
Petitioner filed a Petition seeking habeas corpus relief pursuant to § 2241, challenging his federal conviction for being a felon in possession of a firearm in violation of 28 U.S.C. § 922(g)(1). [Doc. 1.] The Court has carefully reviewed the Petition and takes judicial notice of the records in Petitioner's criminal case in the sentencing court, United States v. Jones, No. 1:12-cr-20889 (S.D. Fla. Nov. 30, 2012) (“Jones”). See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining courts “may properly take judicial notice of matters 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 content of court records.'”).
Petitioner's Conviction, Sentence, and Appeal
On November 30, 2012, a grand jury sitting in the United States District Court for the Southern District of Florida issued an Indictment at case number 1:12-cr-20889, charging Petitioner with two counts of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Jones, Doc. 3. After a trial, the jury convicted Petitioner of both counts on May 1, 2013. Jones, Doc. 45. Petitioner was sentenced on September 4, 2013, to a term of imprisonment of 195 months. Jones, Docs. 60; 61.
On May 5, 2015, the United States Court of Appeals for the Eleventh Circuit affirmed in part, vacated in part, and remanded in part Petitioner's conviction and sentence. United States v. Jones, 608 Fed.Appx. 822 (11th Cir. 2015). Specifically, the Eleventh Circuit affirmed Petitioner's conviction but vacated his sentence and remanded the case for resentencing. Id. at 831. On May 19, 2015, the sentencing court issued an amended judgment, again sentencing Petitioner to a term of 195 months' imprisonment. Jones, Docs. 106; 107.
Petitioner then filed a motion to vacate his conviction and sentence in the sentencing court under 28 U.S.C. § 2255 on May 5, 2016. Jones v. United States of America, No. 1:16-cv-21618-MGC (S.D. Fla. May 5, 2016) (“Jones II”), Doc. 1. By Order dated April 29, 2019, the assigned district judge adopted the report and recommendation of the magistrate judge and denied Petitioner's motion to vacate his conviction and sentence. Id., Docs. 33; 36.
Petitioner's Present Action
Petitioner now seeks habeas relief from his conviction and sentence pursuant to 28 U.S.C. § 2241 in this Court, claiming that he was wrongfully convicted for the felon-inpossession charges in light of the Supreme Court's decision in Rehaif v. United States, 139 S.Ct. 2191 (2019). [Doc. 1 at 9.] Petitioner contends that his conviction should be vacated because he did not know that he possessed a firearm, he did not know that he belonged to the relevant category of persons barred from possessing a firearm, and that the Government did not prove either of these two elements as to the felon-in-possession charges in the Indictment. [Id.] For his relief, Petitioner asks that this Court vacate his conviction and sentence. [Id. at 10.]
APPLICABLE LAW
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings pursuant to the procedural provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted 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, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
Furthermore, this Court is charged with screening Petitioner's lawsuit to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4 of Rules Governing Section 2254 Cases in the United States District Courts; see also Rule 1(b) Rules Governing Section 2254 Cases in the U.S. District Courts (2012) (explaining that a district court may apply these rules to a habeas corpus petition not filed pursuant to § 2254). Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, however, the Petition is subject to summary dismissal.
DISCUSSION
Savings Clause Test
Ordinarily, “defendants convicted in federal court are obliged to 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)). However, § 2255 includes a savings clause, which permits a district court to consider a § 2241 petition challenging the validity of a prisoner's conviction or sentence when § 2255 is “inadequate or ineffective to test the legality of . . . detention.” 28 U.S.C. § 2255(e); In re: Jones, 226 F.3d 328, 333 (4th Cir. 2000). Accordingly, Petitioner can challenge his federal sentence under § 2241 only if he can satisfy the requirements of the § 2255 savings clause, which states:
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). Nevertheless, “the remedy afforded by § 2255 is not rendered inadequate or ineffective merely because an individual has been unable to obtain relief under that provision, or because an individual is procedurally barred from filing a § 2255 motion.” In re Vial, 115 F.3d at 1194 n.5 (citation omitted).
The savings clause test is a jurisdictional requirement that must be met before the Court can entertain a petition filed pursuant to § 2241. United States v. Wheeler, 886 F.3d 426, 429 (4th Cir. 2018). Accordingly, the Court may raise subject matter jurisdiction sua sponte, and if a petitioner cannot meet the savings clause requirements, then the § 2241 petition “must be dismissed for lack of jurisdiction.” Rice, 617 F.3d at 807; see also Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (explaining that a district court has an independent duty to ensure that jurisdiction is proper and to dismiss a case whenever it appears that subject matter jurisdiction is lacking).
The Fourth Circuit has established a test for evaluating whether a petitioner meets the savings clause under § 2255 when he contests his conviction. See In re Jones, 226 F.3d at 333-34. Specifically, a petitioner can show that § 2255 is inadequate or ineffective to challenge a conviction 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.Id. at 333-34. Notably, however, the savings clause is not satisfied merely because a petitioner's prior § 2255 motion was unsuccessful or because a petitioner is unable to meet the requirements to file a successive § 2255 motion. Chisholm v. Pettiford, No. 6:06-cv-2032-PMD-WMC, 2006 WL 2707320, at *2 (D.S.C. Sept. 18, 2006).
Further, “[i]n evaluating substantive claims under the savings clause, ” a district court must “look to the substantive law of the circuit where a defendant was convicted.” Hahn v. Moseley, 931 F.3d 295, 301 (4th Cir. 2019). The applicable “procedural law, ” however, is that of the district court's home circuit. Id. Therefore, while the Court must apply the In re Jones procedural standard to Petitioner's claims in this case, it must do so using Eleventh Circuit substantive law because Petitioner was convicted in the United States District Court for the Southern District of Florida, which sits in the Eleventh Judicial Circuit of the United States. See 28 U.S.C. § 41. As explained below, Petitioner's § 2241 action should be dismissed because he has not established the elements of the savings clause test of In re Jones.
Analysis
As noted, Petitioner was convicted of two counts of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Section 922(g)(1) prohibits any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year (a “convicted felon”) from possessing any firearm or ammunition. 18 U.S.C. § 922(g)(1).
On June 21, 2019, the Supreme Court decided Rehaif, holding “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 belonged to the relevant category of persons barred from possessing a firearm.” 139 S.Ct. at 2200. Thus, “[t]o convict someone under § 922(g)(1), the government must prove four elements: (1) the defendant was a felon; (2) the defendant knew he was a felon; (3) the defendant knowingly possessed a firearm or ammunition; and (4) the firearm or ammunition was in or affecting interstate commerce.” Moss v. Dobbs, No. 8:19-cv-02280, 2019 WL 7284989, at *5 (D.S.C. Sept. 23, 2019) (internal quotation marks omitted), Report and Recommendation adopted by 2019 WL 5616884 (D.S.C. Oct. 31, 2019). Petitioner contends that his 922(g) conviction should be vacated in light of Rehaif because he did not know that he belonged to the relevant category of persons barred from possessing a firearm and the Government failed to meet its burden of proving that element of the crime charged. [Doc. 1 at 9.]
Petitioner also appears to contend that his sentence should be vacated. However, to the extent Petitioner intends to separately challenge his sentence, he cannot meet the savings clause test applicable to a sentencing challenge. Specifically, the Fourth Circuit has articulated a four-part test for determining whether § 2255 is “inadequate or ineffective” to raise challenges to sentencing errors:
(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.Wheeler, 886 F.3d at 429. However, to date, Rehaif has not been held to be retroactively applicable on collateral review. See In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019) (noting Rehaif has not been applied retroactively on collateral review). Therefore, Petitioner cannot meet the second prong of Wheeler because he has not shown that, subsequent to his first § 2255 motion, there was a change in the substantive law of the sentencing court that was deemed to apply retroactively on collateral review. Accordingly, Petitioner has failed to satisfy the elements of the Wheeler test to invoke the savings clause of § 2255 to challenge his sentence, and Petitioner's § 2241 challenge to his sentence should be dismissed.
However, Petitioner cannot satisfy the second element of the In re Jones savings clause test “because the crime for which [he] was convicted remains a criminal offense.” Steele v. Hudgins, No. 5:19-cv-244, 2019 WL 5799976, at *1 (N.D. W.Va. Nov. 7, 2019); see also Hoffman v. Breckon, No. 7:18-cv-00265, 2020 WL 929589, at *9 (W.D. Va. Feb. 26, 2020) (“Rehaif did not change substantive law because the conduct for which the petitioner was convicted is still illegal.”) (collecting cases). Here, Rehaif does not apply because Petitioner stipulated at trial as to his status as a felon. As the Eleventh Circuit noted in Petitioner's appeal, “[t]he parties stipulated that Jones had been convicted of a felony offense prior to August 30, 2012, and that his right to possess a firearm had not been restored.” Jones, 608 Fed.Appx. at 824. Specifically, at trial, the following stipulation was read to the jury:
The United States of America, Hildra Jones, the Defendant, and his Counsel hereby stipulate and agree to the following: The Defendant was convicted of a crime punishable by imprisonment for a term exceeding one year; that is, a felony offense, prior to August 30th of 2012.
The Defendant has never applied for or received restoration of his Federal firearms privileges. Accordingly, he was not and is not legally allowed to possess a firearm or ammunition.Jones II, Doc. 26-6 at 80.
This stipulation satisfied the government's burden of proof, and Petitioner is not entitled to relief under Rehaif. This is so because Rehaif addressed the government's burden of proof in prosecuting cases and “does not apply if the government met its burden of proof, ” Hughes v. Mackelburg, No. 8:19-cv-03390-HMH-JDA, 2020 WL 1429351, at *2 (D.S.C. Mar. 24, 2020) (citing In re Palacios, 931 F.3d at 1315; In re Wright, 942 F.3d at 1064-65), and a stipulation as to the requisite elements of a § 922(g) charge, even after Rehaif, is binding and satisfies the government's burden of proof, United States v. Benamor, 937 F.3d 1182, 1188 (9th Cir. 2019) (“Defendant stipulated at trial that, on the date when he was arrested in this case for possession of the shotgun, he had been convicted of a crime punishable by imprisonment for a term exceeding one year. That factual stipulation was binding, and it relieved the government of the burden to prove Defendant's status as a felon.”); Moss, 2019 WL 7284989, at *4 (Defendant “stipulated that [he] was a felon who was prohibited from possessing a firearm, that the gun traveled in interstate commerce, and that the weapon was a firearm under the statute.”). Therefore, given Petitioner's stipulation, he cannot show that the crime of which he was convicted is no longer deemed to be criminal. See Allen v. Dobbs, No. 1:20-cv-321-HMH-SVH, 2020 WL 907513, at *3-4 (D.S.C. Jan. 31, 2020) (discussing Eleventh Circuit cases evaluating whether Rehaif changed the substantive law such that the conduct of which the prisoner was convicted was deemed not to be criminal), Report and Recommendation adopted by 2020 WL 901407 (D.S.C. Feb. 25, 2020); see also Prince v. Warden of Bennettsville Fed. Corr. Inst., No. 8:20-cv-00823-JMC-JDA, 2020 WL 3318294, at *3 (D.S.C. Mar. 23, 2020) (explaining that Rehaif does not apply where a defendant made a knowing and voluntary guilty plea to violating § 922(g), thus admitting all the elements of that offense, including the knowledge of his status as a convicted felon), Report and Recommendation adopted by 2020 WL 3316088 (D.S.C. June 18, 2020). Because Petitioner cannot show that the conduct for which he was convicted is no longer criminal, he cannot satisfy the second element of the savings clause test and this Court lacks jurisdiction over his Petition. See Rice, 617 F.3d at 807; Asar v. Travis, No. 6:20-cv-394-BHH, 2020 WL 3843638, at *2 (D.S.C. July 8, 2020) (“[B]eing a felon in possession of a weapon remains a valid criminal offense, and Petitioner pleaded guilty to the offense, thus admitting the facts essential to a conviction under § 922(g), unlike in Rehaif.”).
In fact, even in a case in which the petitioner was convicted after a jury trial with no stipulation, this Court has held that the petitioner could not show that the conduct for which he was convicted was no longer criminal. See Midkiff v. Warden, FCI-Edgefield, No. 8:19-cv-2656-TMC, 2020 WL 3651591, at *5 (D.S.C. July 6, 2020) (“Midkiff has failed to show that, following Rehaif, the conduct of which he was convicted is no longer criminal under § 922(g). Thus, Midkiff was unable to satisfy second prong of Jones and has not established that § 2255 is inadequate and ineffective to test the legality of his convictions.”).
The undersigned notes that the Fourth Circuit recently applied plain error review to find that a district court's failure to inform a defendant, prior to his guilty plea, of the element that he knew he belonged to the relevant class of persons barred from possessing a firearm, as required by § 922(g) and Rehaif, was a structural error. United States v. Gary, 954 F.3d 194, 200 (4th Cir. 2020). However, Gary is distinguishable from this case because, here, Petitioner stipulated at trial to the knowledge-of-his-status element. See, e.g., United States v. Norman, No. 7:17-cr-527-HMH, 2020 WL 4043648, at *8 (D.S.C. July 17, 2020) (distinguishing Gary on a number of grounds, including the fact that the defendant “stipulated to the existence of his prior felonies” at a bench trial). Additionally, Gary is inapplicable here, as the Court must apply the substantive law of the Eleventh Circuit, rather than the Fourth Circuit. See, Capalbo v. Antonelli, No. 1:19-cv-1946-TMC, 2020 WL 3496641, at *4 (D.S.C. June 29, 2020) (finding the petitioner's arguments based on Gary without merit because the court was obligated to apply the substantive law of the sentencing court, which was the Eleventh Circuit in that case). The Eleventh Circuit Court of Appeals has held that, where “the facts in the record, taken together, indicate that [a defendant] knew of his status as a felon at the time of his possession of the firearm, he cannot show a reasonable probability that he would not have pled guilty if the knowledge requirement in Rehaif had to be proven. Therefore, [a defendant] cannot satisfy the requirement to show that the plain error affected his substantial rights.” United States v. Pascal, No. 19-11933, 2020 WL 2843467, at *3 (11th Cir. June 1, 2020); see also United States v. Moore, 954 F.3d 1322, 1338 (11th Cir. 2020) (“Appellants cannot establish that they were unaware of their felon status when they possessed firearms due to the nature of their prior felonies. Thus, these errors did not affect Appellants' substantial rights.”).
CONCLUSION AND RECOMMENDATION
For the reasons explained above, this Court lacks jurisdiction to consider the Petition filed in this case. Accordingly, it is recommended that the § 2241 Petition be dismissed without requiring the Respondent to file an answer or return.
IT IS SO RECOMMENDED.
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
300 East Washington Street, Room 239 Greenville, South Carolina 29601
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).