Opinion
4:16-CR-00073-FL 4:23-CV-00099-FL
05-06-2024
SEDRIC RASHA MARION, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND RECOMMENDATION
BRIAN S. MEYERS, UNITED STATES MAGISTRATE JUDGE
This matter is before the court on petitioner Sedric Rashad Marion's (“petitioner” or “Marion”) motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [D.E. 80] (the “§ 2255 motion”). The matter is also before the court on respondent's motion to dismiss [D.E. 86]. Petitioner responded in opposition to the motion to dismiss [D.E. 89], and responsive briefing is complete. The motions were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1). For the reasons stated below, the undersigned recommends that respondent's motion to dismiss [D.E. 86] be allowed and petitioner's § 2255 motion [D.E. 80] be denied.
I. BACKGROUND
On June 12, 2018, petitioner pleaded guilty, without a written plea agreement, to the sole count in the indictment against him, that is, possession of a firearm and ammunition by felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924. Arraignment Transcript [D.E. 66] at 23 ¶8, 31 ¶12.
Prior to sentencing, the United States Probation Office filed a presentence investigation report (“PSR”) determining petitioner's advisory sentencing guideline range to be 151 to 188 months' imprisonment, based upon a total offense level of 30 and a criminal history category of V. Final PSR [D.E. 55] ¶69; Sentencing Transcript (Tr.) [D.E. 65] at 2-4. However, petitioner was determined to be an armed career criminal as defined in 18 U.S.C. § 924(e), the Armed Career Criminal Act (“ACCA”), and therefore subject to the statutory mandatory minimum sentence of 15 years' imprisonment. PSR [D.E. 55] ¶¶64, 68, 69; Sentencing Transcript (Tr.) [D.E. 65] at 24. Because the statutory minimum sentence of 15 years was greater than the minimum of the applicable guideline range, petitioner's guideline sentencing range was determined to be 180 to 188 months' imprisonment. PSR [D.E. 55] ¶69; Sentencing Transcript (Tr.) [D.E. 65] at 3; see U.S.S.G. §5G1.1(c)(2).
The PSR provided that petitioner qualified as an armed career criminal because “[t]he offense of conviction is a violation of 18 U.S.C. § 922(g), and [petitioner] has at least three prior convictions for a violent felony or serious drug offense, or both, which were committed on different occasions.” Final PSR [D.E. 55] ¶64. Specifically, the PSR noted that petitioner had four predicate felony convictions, each for Breaking and Entering (06CRS52726, 06CRS52732, 06CRS52733, and 06CRS52734), with the offense conduct for all four convictions having occurred between July 15, 2006, and July 16, 2006, when petitioner “broke into multiple residences in Whitakers, North Carolina and stole various items, including firearms and cash, with a total value of over $20,000.” Id. at ¶¶27, 64.
On February 5, 2019, the court sentenced petitioner to 180 months' imprisonment, and five years' supervised release. Judgment [D.E. 59] at 2-3. Petitioner appealed his judgment of conviction. [D.E.61]. On September 18, 2020, the Fourth Circuit affirmed the judgment. [D.E. 69]. The Fourth Circuit concluded that the district court did not err in sentencing petitioner as an armed career criminal in this case. Id. at 2.
On April 7, 2023, petitioner, proceeding pro se, filed a motion to appoint counsel, and noted therein that he believed the United State Supreme Court's ruling in Wooden v. United States, 142 S.Ct. 1063 (2022), potentially entitled him to relief. [D.E. 75] at 1. On May 12, 2023, this court denied petitioner's motion to appoint counsel [D.E. 75], providing that “[t]here is no right to appointed counsel in post-conviction proceedings.” [D.E. 76] at 1 (citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)). However, because petitioner's motion to appoint counsel included a request for relief from his sentence in light of Wooden, 142 S.Ct. 1063, in its May 12, 2023 order, this court notified petitioner that “pursuant to Castro v. United States, 540 U.S. 375 (2003), . . . [the court] intends to recharacterize [petitioner's motion [D.E. 75]] as an attempt to file a motion to vacate, set aside, or correct, his sentence under 28 U.S.C. § 2255.” [D.E. 76] at 1. “In addition, the court provide[d petitioner] with an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has.” Id. at 2. The court further advised that if petitioner “agrees to have the motion recharacterized or does not respond in opposition to the recharacterization, the court shall consider the motion as one under § 2255 and shall consider it filed as of the date the original motion was filed.” Id.
While it does not impact the instant analysis, for completeness, the undersigned notes that petitioner's pro se motion [D.E. 75] is dated April 3, 2024. [D.E. 78] at 1.
On June 5, 2023, petitioner made an additional filing [D.E. 77], advising the court that he agreed to have his motion recharacterized as a § 2255 motion and providing additional facts. Petitioner's motion [D.E. 75] was then recharacterized as a § 2255 motion, and refiled in the docket at [D.E. 78], with a filing date of April 7, 2023. On June 14, 2023, the court filed an order, noting that plaintiff's § 2255 motion “does not substantially follow the form appended to the Rules Governing § 2255 Proceedings and is therefore not in compliance with Rule 2(c) of the Rules Governing § 2255 Proceedings and Local Civil Rule 81.2 of this court.” [D.E. 79] at 1. The court directed petitioner to correct and return the § 2255 form provided by the Clerk of Court in accordance with the court's order, no later than June 28, 2023. Id.
On June 30, 2023, petitioner, proceeding pro se, filed the instant § 2255 motion [D.E. 80], asserting two claims, alleging that: (1) in light of the Supreme Court's ruling in Wooden, 142 S.Ct. 1063, petitioner has only two predicate offenses under the ACCA, and is therefore “‘actually innocent' of his Armed Career Criminal enhancement” and should be resentenced without being subject to the 15-year statutory mandatory minimum sentence under the ACCA ([D.E. 80] at 4-5); and (2) in light of the Supreme Court's ruling in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022), petitioner is “actually innocent of his conviction for Felon In Possession of a Firearm” and requests, therefore, that his conviction and sentence be vacated or that he be permitted to withdraw his guilty plea ([D.E. 80] at 6-7).
Petitioner certified that he placed his motion into the prison mail system on June 25, 2023. See United States v. Johnson, No. 4:10CR16-3, 2017 WL 11569471, at *1 (E.D. Va. Nov. 21, 2017) (“To determine whether a prisoner has filed his motion prior to the expiration of the statute of limitation, the court applies the prison mailbox rule[, which provides that] the court [will accept] a § 2255 motion as effectively filed on the date the prisoner certifies he placed it in the prison's internal mailing system. Houston v. Lack, 487 U.S. 266, 270-72 (1988). However, because the undersigned construes petitioner's motion to be filed on the date of his original filing, April 7, 2023, the prison mailbox rule does not have any impact on the instant analysis.
On September 19, 2023, respondent filed the instant motion to dismiss, arguing that petitioner's § 2255 claims should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. [D.E. 86]. Petitioner responded in opposition on October 16, 2023. [D.E. 89].
II. STANDARD OF REVIEW
A petitioner seeking relief pursuant to 28 U.S.C. § 2255 must show that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the Court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” 28 U.S.C. § 2255(b). “The Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure, to the extent that they are not inconsistent with any statutory provisions, or the [§ 2255 Rules], may be applied to” § 2255 proceedings. Rules Governing Section 2255 Proceedings, Rule 12.
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the § 2255 petition but “does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). The petition states a claim if it contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In evaluating the petition, “[the] court accepts all well pled facts as true and construes these facts in the light most favorable to the [petitioner],” but does not consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). In reviewing a motion to dismiss a § 2255 petition, the court may consider the “files and records of the case” without converting the motion into one for summary judgment. 28 U.S.C. § 2255(b); Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining court may “properly take judicial notice of matters of public record” when deciding Rule 12(b)(6) motion).
III. ANALYSIS
As discussed above, petitioner contends that the district court erred in designating him as an armed career criminal for two reasons: (1) under Wooden, 142 S.Ct. 1063, he should only have two predicate offenses for purposes of the ACCA and therefore “stands actually innocent of his Armed Career Criminal [Act] enhancement” ([D.E. 80] at 4); and (2) that under Bruen, 597 U.S. 1, he is actually innocent of his conviction for felon in possession of a firearm ([D.E. 80] at 6).
Respondent argues that petitioner's motion should be denied because: (1) petitioner's claims are untimely ([D.E. 87] at 4-6); (2) petitioner has procedurally defaulted his claims (id. at 6-7); and (3) petitioner cannot establish cause and prejudice or actual innocence to overcome his procedural default (id. at 7-19). The undersigned will address each of respondent's arguments, as applied to petitioner's two contentions, below.
A. Timeliness of petitioner's motion
Incarcerated individuals may attack the validity of their federal sentences by filing motions pursuant to 28 U.S.C. § 2255 within the one-year limitations period. The one-year limitations period runs the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2255(f).
Here, the applicable provisions for determining the starting date for the limitations period are §§ 2255(f)(1) and (3).
As noted above, petitioner filed his motion [D.E. 78] requesting relief from his sentence in light of the United State Supreme Court's ruling in Wooden, 142 S.Ct. 1063, on April 7, 2023. This court advised petitioner that if he “agree[d] to have the motion recharacterized or does not respond in opposition to the recharacterization, the court shall consider the motion as one under § 2255 and shall consider it filed as of the date the original motion was filed.” [D.E. 76] at 2. In its order, the court also provided petitioner “with an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has.” Id. at 2. As petitioner agreed to have his motion recharacterized as a § 2255 motion ([D.E. 77]), the undersigned construes April 7, 2023, as the motion filing date for purposes of § 2255(f). Cf. United States v. Bennett, No. 3:10CR84, 2013 WL 310345, at *1 (W.D. N.C. Jan. 25, 2013) (“In order to find that an otherwise untimely claim asserted through amendment relates back, the amended claims must arise from the ‘same core facts,' and not be dependent upon events which are separate in time and type from the events upon which the original claims depended.”) (quoting Mayle v. Felix, 545 U.S. 644, 125 S.Ct. 2562, 2570, (2005).
Because petitioner did not timely seek certiorari in the Supreme Court, petitioner's judgment became final on December 17, 2020 - that is, 90 days after the Fourth Circuit affirmed petitioner's conviction and judgment on September 18, 2020. See [D.E. 69]; Clay v. United States, 537 U.S. 522, 532 (2003) (§ 2255's one-year limitation period starts to run when the time for seeking review expires). Accordingly, petitioner's motion was untimely under § 2255(f)(1).
Petitioner bases his request for relief on two Supreme Court cases, Wooden and Bruen ([D.E. 80] at 4, 6). Wooden, 142 S.Ct. 1063, was decided on March 7, 2022, which is more than one year before petitioner filed his original motion requesting relief on April 7, 2023 [D.E. 78]. Bruen, 142 S.Ct. 2111, was decided on June 23, 2022, which is less than a year before petitioner filed his original motion on April 7, 2023.
Petitioner did not mention Bruen until his final corrected motion [D.E. 80]. Petitioner certified that he placed this corrected motion [D.E. 80] into the prison mail on June 25, 2023, which is more than one year after Bruen was decided on June 23, 2022. However, as discussed herein, the undersigned construes the “opportunity [afforded to petitioner]. . . to amend [his motion] so that it contains all the § 2255 claims he believes he has” (id. at 2.) and the fact that “the court shall consider [petitioner's recharacterized] motion as one under § 2255 and shall consider it filed as of the date the original motion was filed” (id.) as allowing petitioner's Bruen claim to relate back to the original filing date. However, the undersigned notes that even with this permissive interpretation of petitioner's filing date for his Bruen claim, it is still untimely for the reasons discussed herein.
Accordingly, any claims based on Wooden, 142 S.Ct. 1063 are facially untimely under § 2255(f)(3). The claims are not saved that by petitioner adding a Bruen claim with a later decision date to his motion. See Pittman v. United States, No. 310CR1542TAVHBG, 2016 WL 3129198, at *4 (E.D. Tenn. June 2, 2016) (“[A] renewed statute of limitation triggered by the satisfaction of 2255(f)(3) only applies to claims that successfully meet the requirements of that sub-category; it does not serve as a loophole to assert additional claims that would not have otherwise been heard by the Court.”).
While petitioner's claim under Bruen was filed less than a year after that case was decided, multiple courts across the nation have found that Bruen does not support a renewed statute of limitations under 2255(f)(3). United States v. Faulkner, No. 3:17-CR-00011, 2023 WL 8655267, at *4 (W.D. Va. Dec. 14, 2023) (refusing to find that Faulkner's Bruen claim was timely filed under § 2255(f)(3), because “the Court does not find that Bruen has any impact on Faulkner's felon in possession conviction under 18 U.S.C. § 922(g)(1)”); Simmons v. United States, No. 8:17-CR-537-CEH-AAS, 2024 WL 837244, at *3 (M.D. Fla. Feb. 28, 2024) (“If Simmons believes his motion is timely under section 2255(f)(3) because Bruen is retroactive, he is mistaken. In Bruen, the Supreme Court merely affirmed the right under the Second Amendment for a law-abiding citizen to publicly carry a firearm without showing a specialized need.”) (citations omitted); Battles v. United States, No. 4:23-CV-00063-HEA, 2023 WL 346002, at *1 (E.D. Mo. Jan. 20, 2023) (finding that Bruen “did not announce a new rule retroactively available on collateral review[, but was rather] a statutory interpretation case, not a substantive constitutional challenge under the Due Process Clause.”); but see United States v. Wilson, No. 2:21-CR-00268-01, 2023 WL 7095722, at *2 (W.D. La. Oct. 26, 2023), certificate of appealability granted, No. 2:21-CR-00268-01, 2024 WL 758540 (W.D. La. Feb. 22, 2024) (noting that “[t]he government agrees that the Bruen case is cognizable under § 2255 and is to be retroactively applied on collateral review[, because] Bruen's rule is substantive when applied to statutes because it held that the state lacked power to punish a law-abiding citizen for carrying a firearm in public for ordinary self-defense.”).
Petitioner has also not shown that he is entitled to equitable tolling. To be eligible for equitable tolling, a petitioner must demonstrate that: “1) he has been pursuing his rights diligently; and 2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (citations omitted). The Fourth Circuit has specifically required a showing of: “(1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time.” Rouse v. Lee, 339 F.3d 238, 251 (4th Cir. 2003) (citations omitted). Here, petitioner has not alleged any extraordinary circumstances that prevented him from filing a timely § 2255 claim.
The undersigned does not make a recommendation herein regarding whether Bruen is retroactively applicable on collateral review, because, as discussed below, Bruen does not apply to petitioner's situation under § 922(g)(1).
B. Procedural default
Respondent argues that even if petitioner had timely filed his claims, petitioner has procedurally defaulted his claims by failing to challenge the constitutional validity of his conviction or judgment on direct review. [D.E. 87] at 6. The Supreme Court has “strictly limited the circumstances under which a guilty plea may be attacked on collateral review.” Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 1610, 140 L.Ed.2d 828 (1998). “[E]ven the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review.” Id.
In the instant case, petitioner did not contest, either at sentencing or on direct appeal, (i) that his four burglaries were committed on occasions different from one another, or (ii) that § 922(g)(1) was unconstitutional, facially or as applied to petitioner. See Brief for Appellant [D.E. 17] at 7-8, United States v. Marion, No. 19-4106 (4th Cir. 2019) (petitioner arguing on direct appeal that the district court erred in holding that the offense of North Carolina breaking and entering was a violent felony under the ACCA); see also [D.E. 69] at 2 (“On appeal, [petitioner] contends that the district court erred in holding that the offense of North Carolina breaking and entering is a violent felony under the [ACCA]”). Accordingly, the undersigned finds that petitioner's claims were procedurally defaulted.
“Where a [petitioner] has procedurally defaulted a claim by failing to raise [a claim] on direct review, the claim may be raised in habeas only if the [petitioner] can first demonstrate either [(1)] ‘cause' and actual ‘prejudice,' . . ., or [(2)] that he is ‘actually innocent.'” Bousley, 118 S.Ct. at 1611 (citations omitted). For the reasons discussed below, the undersigned finds that petitioner has not demonstrated cause and prejudice or actual innocence, and therefore has not overcome his procedural default.
1. Cause and prejudice
“[C]ause for a procedural default must turn on something external to the defense, such as the novelty of the claim or a denial of effective assistance of counsel.” United States v. Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999). Petitioner's motion [D.E. 80] does not allege ineffective assistance of counsel, and, accordingly, the undersigned will not consider it further.
Cause for a procedural default may exist where “a claim . . . ‘is so novel that its legal basis is not reasonably available to counsel.'” Bousley, 118 S.Ct. at 1611 (quoting Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984). However, other claimants have previously argued, as petitioner does here, that multiple predicate offenses, closely related in time should only count as one predicate offense for purposes of the ACCA. See United States v. Cardenas, 217 F.3d 491, 492 (7th Cir. 2000) (defendant unsuccessfully arguing that two sales of crack cocaine to the same people, separated by forty-five minutes and a half a block were the same predicate offense for purposes of the ACCA). Similarly, other defendants had argued, prior to Bruen, that Section 922(g)(1) is unconstitutional in violation of the Second Amendment, on its face and as applied to them. See, e.g., United States v. Loveland, No. 1:11 CR 13, 2011 WL 4857980, at *4 (W.D. N.C. Sept. 7, 2011), report and recommendation adopted, No. 1:11CR13, 2011 WL 4857943 (W.D. N.C. Oct. 13, 2011). Accordingly, petitioner's claims are not “novel.” Bousley, 118 S.Ct. at 1611 (citations omitted).
The fact that earlier attempts to argue these legal theories failed does not rescue petitioner from procedural default, because “alleged futility cannot serve as ‘cause' for procedural default in the context of collateral review.” Whiteside v. United States, 775 F.3d 180, 185 (4th Cir. 2014) (en banc) (citing Bousley, S.Ct. at 1604); see also Rose v. United States, 2021 WL 2042092, at *5 (W.D. N.C. May 21, 2021) (finding that because the petitioner's § 922(g) mens rea challenge based on the Supreme Court's holding in Rehaif v. United States, 139 S.Ct. 2191 (2019) was only futile, but not unavailable prior to the holding in that case, he could not establish the cause necessary to overcome procedural default). Accordingly, petitioner has failed to establish cause for failing to raise either of his two arguments on direct review.
Even if petitioner could have demonstrated cause, he would need to also demonstrate actual prejudice. “To show actual prejudice, [petitioner] must demonstrate that the error worked to his ‘actual and substantial disadvantage,' not merely that the error created a ‘possibility of prejudice.'” Satcher v. Pruett, 126 F.3d 561, 572 (4th Cir. 1997) (quoting Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648 (1986)). “In this case, actual prejudice depends on whether [petitioner] would have succeeded had he raised [the Wooden or Bruen claims.]” Id. Petitioner has not alleged any actual prejudice from the alleged errors based on Wooden and Bruen, except that he is actually innocent. Accordingly, the actual prejudice inquiry is derivative of the actual innocence inquiry discussed below.
2. Actual innocence
“To establish actual innocence, petitioner must demonstrate that, ‘in light of all the evidence,' ‘it is more likely than not that no reasonable juror would have convicted him.'” Bousley, 118 S.Ct. at 1611 (quoting Schlup v. Delo, 513 U.S. 298, 327-328, 115 S.Ct. 851, 867868, 130 L.Ed.2d 808 (1995)). “‘[A]ctual innocence' means factual innocence, not mere legal insufficiency.” Id. (citations omitted).
a. Actual innocence under Wooden
Under the ACCA, a defendant faces a mandatory minimum 15-year term of imprisonment if he “has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1) (emphasis added). In Wooden, the defendant sequentially burglarized ten units in a one-building storage facility. 142 S.Ct. at 1067. Georgia prosecutors charged Wooden with ten counts of burglary in a single indictment, to which Wooden pleaded guilty. Id. at 1068.
During a subsequent proceeding for felon in possession of a firearm under 18 U.S.C. § 922(g), the district court found that each of Wooden's burglaries was “committed on occasions different from one another.” Id. (citing § 924(e)(1)). The Supreme Court disagreed with this finding and provided new guidelines for what constitutes “occasions different from one another” under the ACCA. The Supreme Court explained that:
a range of circumstances may be relevant to identifying episodes of criminal activity. Timing of course matters, though not in the split-second, elements-based way the Government proposes. Offenses committed close in time, in an uninterrupted course of conduct, will often count as part of one occasion; not so offenses separated by substantial gaps in time or significant intervening events. Proximity of location is also important; the further away crimes take place, the less likely they are components of the same criminal event. And the character and relationship of the offenses may make a difference: The more similar or intertwined the conduct giving rise to the offenses-the more, for example, they share a common scheme or purpose-the more apt they are to compose one occasion.Wooden, 142 S.Ct. at 1071.
The Supreme Court emphasizes that “[i]n many cases, a single factor-especially of time or place-can decisively differentiate occasions,” and that “[c]ourts, for instance, have nearly always treated offenses as occurring on separate occasions if a person committed them a day or more apart, or at a ‘significant distance.'” Id.
As noted above, petitioner's sentence included an ACCA enhancement under 18 U.S.C. § § 924(e)(1), because the court found that “the defendant has at least three prior convictions for a violent felony or serious drug offense, or both, which were committed on different occasions.” Final PSR [D.E. 55] ¶64. The Final PSR provides the following factual details about petitioner's four ACCA predicate felony convictions, 06CRS52726, 06CRS52732, 06CRS52733, and 06CRS52734: “[b]etween July 15, 2006, and July 16, 2006, [petitioner] broke into multiple residences in Whitakers, North Carolina, and stole various items, including firearms and cash, with a total value of over $20,000.” Id. at ¶¶27, 64. Petitioner contends that three of the four burglaries “occurred on the same day during a robbery [‘spree']” and were charged in a single indictment. [D.E. 80] at 4.
It is impossible for four burglaries committed over two days to each be committed “a day or more apart” from each other, although the burglaries of individual residences are necessarily separated by more than “split-second[s].” Cf. Wooden, 142 S.Ct. at 1071. “[Significant distance” is not defined for purposes of Wooden. 142 S.Ct. at 1071. Petitioner represents that the locations of the burglarized residences “were not far apart from each other,” ([D.E. 89] at 6) and the court notes that all the burglarized residences were located in the same town of Whitakers, North Carolina (Final PSR [D.E. 55] ¶27). However, separate residences are by definition more geographically dispersed than the ten units in a one-building storage facility addressed in Wooden. 142 S.Ct. at 1067. Petitioner represents that he was “driving around looking for places to burglarize,” which indicates, even crediting petitioner's representations, that the residences were driving distance from one another and not immediately adjacent to one another. [D.E. 89] at 6. Similarly, the intervening events between burglaries of separate residences, which were reached by automobile, are necessarily more numerous and diverse than those during an uninterrupted course of conduct burglarizing multiple units in one storage facility. For example, petitioner needed to evaluate the suitability each target residence for burglary, decide to commit a burglary of the respective residence, exit his vehicle at each residence, break into each residence, steal items at each residence, transport the stolen items from the residence to his car, and finally decide whether to commit a further burglary or return with his stolen goods back to a safe location.
Petitioner further contends that the burglaries shared a “common scheme or purpose” in that they were committed “in one continued crime spree while he was drunk and high on drugs.” [D.E. 89] at 6. While the nature and circumstances of the burglaries appear to be “similar” based upon the limited information in the record before the court, the individual burglaries were not “intertwined.” Wooden, 142 S.Ct. at 1071. As discussed above, the multiple intervening events involved in between each burglary indicate that “driving around looking for places to burglarize” does not involve the same causal inertia as burglarizing successive units in one storage facility, Wooden, 142 S.Ct. at 1067, or robbing successive patrons in one restaurant robbery. See United States v. Petty, 828 F.2d 2, 3 (8th Cir. 1987).
However, because petitioner's Wooden claim is untimely and the undersigned has recommended that it be dismissed on that basis, as discussed above, the undersigned does not make a finding herein regarding whether petitioner committed the individual burglaries on “occasions different from one another.” See 18 U.S.C. § 924(e)(1).
In his reply brief, petitioner contends that under McQuiggin v. Perkins, 569 U.S. 383, 401, 133 S.Ct. 1924, 1936, 185 L.Ed.2d 1019 (2013), actual innocence can overcome the AEDPA statute of limitations requirements under the miscarriage of justice exception. However, the court in McQuiggin clearly stated that “[t]he gateway [of actual innocence] should open only when a petition presents ‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'” Id. at 1928. The McQuiggin court further noted that “tenable actual-innocence gateway pleas are rare [and]: ‘[a] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id. (quoting Schlup, 115 S.Ct. 851). “Given that McQuiggin's focus is on innocence of the underlying offense, its rationale ‘does not extend to cases in which a movant asserts actual innocence of his sentence, rather than of his crime of conviction.'” Sanders v. United States, No. 5:12-CR-0158, 2015 WL 13735391, at *4 (E.D. N.C. Sept. 2, 2015), report and recommendation adopted, No. 5:12-CR-158-FL-1, 2015 WL 8160989 (E.D. N.C. Dec. 7, 2015) (quoting United States v. Jones, 758 F.3d 579, 586 (4th Cir. 2014) cert. denied, 135 S.Ct. 1467, 191 L.Ed.2d 413 (2015)). Similarly, the out of circuit case petitioner cites in support of his position, Souter v. Jones, involves equitable tolling for actual innocence of the underlying crime, i.e., second-degree murder, not innocence of that defendant's sentence. 395 F.3d 577, 599-600 (6th Cir. 2005). There is no claim that petitioner is innocent of the underlying crimes, of burglary, under Wooden. Accordingly, the cases cited by petitioner do not cure the fact that his Wooden claim is untimely. To the extent that petitioner cites these cases based on his assertion that he is actually innocent of 922(g)(1) under Bruen, the undersigned finds that he is not innocent of this offense for the reasons discussed in this Memorandum and Recommendation.
b. Actual innocence under Bruen
Petitioner alleges that under Bruen, he has “a Second Amendment Right to bear arms for self-defense purposes outside his Residence.” [D.E. 80] at 6. The Second Amendment to the Constitution provides that a “well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. Amend. II. However, the majority of the Supreme Court provided in D.C. v. Heller, albeit in dicta, that “[l]ike most rights, the Second Amendment right is not unlimited.” 554 U.S. 570, 626, 128 S.Ct. 2783, 2816, 171 L.Ed.2d 637 (2008). The majority in Heller elaborated on this principle by noting that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” Id. at 2816-17; see also McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (“We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as [the] prohibition[ ] on the possession of firearms by felons.”) (citations omitted).
The court in Bruen held that to justify a firearm regulation, “the government may not simply posit that the regulation promotes an important interest[, but must] demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation.” Bruen, 142 S.Ct. at 2126. The majority in Bruen, does not expressly apply its holding to 922(g). However, two concurring Justices in Bruen explicitly recognized that “the Second Amendment allows a ‘variety' of gun regulations,” including “prohibitions on the possession of firearms by felons.” Id. at 2162 (Kavanaugh, J. and Roberts, J., concurring).
Petitioner cites United States v. Quiroz, 629 F.Supp.3d 511, 2022 WL 4352482 (W.D. TX. Sept. 19, 2022), Range v. Att'y Gen. United States of Am, 69 F.4th 96, 98 (3d Cir. 2023) (en banc), and Atkinson v. Garland, 70 F.4th 1018, 1022 (7th Cir. 2023), in support of the principle that 18 U.S.C. 922 (g)(1) is unconstitutional under Bruen. [D.E. 80] at 6.
As an initial matter, Quiroz is inapposite because it involved illegal receipt of a firearm by a person under indictment under 18 U.S.C. § 922(n), not felon in possession of a firearm under 18 U.S.C. § 922(g), as petitioner was here. See Quiroz, 629 F.Supp.3d at 513. Additionally, even if petitioner had only been under a felony indictment, this court has considered and rejected the position asserted in Quiroz. United States v. Alston, No. 5:23-CR-021-FL-1, 2023 WL 7003235, at *3 (E.D. N.C. Oct. 24, 2023) (noting Quiroz, but finding the defendant's argument that § 922(n) is unconstitutional under the Second Amendment to be without merit).
This court has similarly declined to follow the approaches announced in Range, 69 F.4th 96, and Atkinson, 70 F.4th 1018. United States v. Pendenque-Alcindor, No. 5:21-CR-215-FL-1, 2023 WL 7002059, at *2 (E.D. N.C. Oct. 24, 2023) (declining to follow Range and Atkinson, which required a “Bruen [text-and-history] test”, i.e., a determination whether 922(g)(1) was consistent with the Nation's historical tradition of firearms regulation when deciding whether 922(g)(1) is constitutional as applied to a particular defendant)).
Specifically, this court noted the circuit split on whether “the Bruen [text-and-history] test should be applied to those with felony or felony-equivalent convictions.” Pendenque-Alcindor, 2023 WL 7002059, at *2 (citing Vincent v. Garland, No. 21-4121, 2023 WL 5988299, at *3-4 (10th Cir. Sept. 15, 2023) (concluding “that Bruen did not indisputably and pellucidly abrogate” the circuit precedent holding § 922(g) constitutional); United States v. Racliff, No. 22-10409, 2023 WL 5972049 (5th Cir. Sept. 14, 2023) (“[T]here is no binding precedent explicitly holding that § 922(g)(1) is unconstitutional and . . . it is not clear that Bruen dictates such a result[.]); United States v. Sitladeen, 64 F.4th 978, 984 (8th Cir. 2023) (finding its doctrine that the Second Amendment does not cover any conduct by those unlawfully present in the country “undisturbed by Bruen”); Atkinson v. Garland, 70 F.4th 1018, 1022 (7th Cir. 2023) (holding that courts “must undertake the text-and-history inquiry the [Supreme] Court so plainly announced and expounded upon at great length” when deciding whether § 922(g)(1) is constitutional as applied to a particular defendant).
While the Fourth Circuit has not ruled on this issue, this court has been guided by Fourth Circuit case law, which “held § 922(g) to be ‘presumptively lawful' when applied to those with felony convictions.” Pendenque-Alcindor, 2023 WL 7002059, at *2 (quoting United States v. Moore, 666 F.3d 313, 320 (4th Cir. 2012)). In sum, “[w]here Bruen did not explicitly overrule the presumptive validity of § 922(g)(1) in Moore and Heller, and where two concurring justices explicitly approved felon in possession laws, Moore continues to be binding on this court.” Id.
However, even if this court applied a Bruen “text-and-history” test with respect to § 922(g)(1), it would “stand[] with the vast majority of district courts, circuit courts and scholars that have likewise found that the ‘longstanding' prohibitions on the right of felons to bear arms and ammunition renders 18 U.S.C. § 922(g)(1) constitutional.” United States v. Coleman, No. 3:22CR87 (DJN), 2023 WL 6690935, at *16 (E.D. Va. Oct. 12, 2023) (citing over 170 district court opinions that have rejected a challenge to the constitutionality of Section 922(g)(1) in light of Bruen).
Accordingly, even if petitioner's Bruen claim was timely, this court has rejected Bruen claims as applied to § 922(g)(1), for the reasons discussed above, and his claim of actual innocence must fail.
IV. CONCLUSION
For the reasons stated above, IT IS RECOMMENDED that respondent's motion to dismiss [D.E. 86] be allowed and petitioner's § 2255 motion [D.E. 80] be denied.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until May 21, 2024, to file written objections to this Memorandum and Recommendation. The presiding district judge must conduct her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).