Opinion
2:21-cv-02441-RBH-MGB
10-19-2021
Reginald McKinnon, # 27104-171, Petitioner, v. Warden of FCI Williamsburg, Respondent.
REPORT AND RECOMMENDATION
MARY CORDON BAKER, UNITED STATES MAGISTRATE JUDGE.
Reginald McKinnon, a pro se federal prisoner, brings this petition seeking a writ of habeas corpus under 28 U.S.C. § 2241. In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2) (D.S.C.), the assigned United States Magistrate Judge has reviewed the petition and submits this Report and Recommendation to the United States District Judge. For the reasons discussed below, the undersigned recommends that the petition be summarily dismissed, without prejudice.
BACKGROUND
McKinnon is an inmate at the Federal Correctional Institution, Williamsburg in Salters, South Carolina (“FCI Williamsburg”) serving a criminal sentence based on his involvement in a multi-defendant drug conspiracy case. On October 28, 2014, McKinnon pleaded guilty to conspiracy to possess with intent to distribute 280 grams or more of a mixture and substance containing cocaine base and five kilograms or more of a mixture and substance containing cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. See United States v. McKinnon, 4:14-cr-00259-RBH-8. The presentence investigation report calculated an imprisonment range of 1 262 to 327 months under the Federal Sentencing Guidelines (the “Guidelines”), noting an offense level of 34 and a criminal history category of VI, based in part on McKinnon's status as a career offender as defined by § 4B1.1. (Crim. Dkt. No. 427.) McKinnon entered into a written plea agreement, however, in which he and the Government stipulated to a sentence of only 180 months' imprisonment pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. (Crim. Dkt. Nos. 300, 314.) The Court accepted the stipulated sentence and judgment was entered on February 27, 2015. (Crim. Dkt. Nos. 421, 436.) Although McKinnon did not directly appeal the Court's judgment, he filed the following series of motions seeking sentencing relief.
A federal court may take judicial notice of the contents of its own records, as well as those records of other courts. Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); see also Tisdale v. South Carolina Highway Patrol, No. 0:09-cv-1009-HFF- PJG, 2009 WL 1491409, at *1 n.1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. Aug. 27, 2009) (noting that the court may also take judicial notice of factual information located in postings on government web sites). The undersigned therefore takes judicial notice of the records filed in McKinnon's underlying criminal case and identifies such records as “Crim. Dkt. No. ” herein. Citations to “Dkt. No.” refer only to those records filed in the immediate civil action.
First, McKinnon filed a pro se motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2), claiming that he was entitled to a reduction in his term of imprisonment based on Amendment 782 to the Guidelines. (Crim. Dkt. No. 509.) The Court denied McKinnon's motion on August 6, 2015, explaining:
Amendment 782 affected the offense levels assigned to certain drug quantities and was made retroactive by the United States Sentencing Commission. U.S. Sentencing Guidelines Manual, app. C, amend. 782 (Supp. 2014).
The defendant does not qualify for a reduction because he is a career offender. Additionally, the 2014 edition of the U.S. Sentence Guidelines were applied in this case; therefore, the defendant already received the benefit of Amendment 782. Finally, the defendant was sentenced pursuant to an 11(c)(1)(C) plea agreement, which was not based on the guidelines.(Crim. Dkt. No. 535.) The Fourth Circuit Court of Appeals affirmed the Court's decision on November 20, 2015. (Crim. Dkt. Nos. 555, 578.)
On June 29, 2016, McKinnon filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, arguing that his “sentence exceed[ed] the maximum punishment” in light of the United States Supreme Court's decision in Johnson v. United States, 576 U.S. 591 2 (2015), which held that the residual clause of the Armed Career Criminal Act (“ACCA”) defining “violent felony” was unconstitutionally vague. (Crim. Dkt. Nos. 625, 642.) McKinnon also filed a motion seeking a reduction in sentence pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure on October 19, 2016. (Crim. Dkt. No. 664.)
The Court denied McKinnon's Rule 35(b) motion on November 1, 2016, and his § 2255 motion on July 18, 2017. (Crim. Dkt. Nos. 673, 702.) The Court determined that Johnson was “irrelevant” to McKinnon's case because:
[h]e was not sentenced as an armed career criminal under the ACCA (much less under its residual clause), nor under any other provision containing language similar to the residual clause invalidated by Johnson. Instead, Petitioner was sentenced pursuant to the 180-month stipulated sentence in the Rule 11(c)(1)(C) plea agreement based on violations of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846.(Crim. Dkt. No. 702.)
On July 5, 2018, McKinnon filed another motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 782 to the Guidelines. (Crim. Dkt. No. 720.) The Court denied McKinnon's motion on July 25, 2018, for the same reasons discussed above. (Crim. Dkt. No. 731.) McKinnon then filed a second motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, this time alleging ineffective assistance of counsel and actual innocence, among other things. (Crim. Dkt. No. 773.) The Court denied McKinnon's motion as successive, explaining that because his first § 2255 motion was denied on the merits, he must first obtain written permission from the Fourth Circuit Court of Appeals before filing a second or successive motion. (Crim. Dkt. No. 780.)
On December 20, 2019, McKinnon filed a motion seeking a reduction in sentence under 18 U.S.C. § 3582(c)(1)(A) as amended by the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018), arguing that some of his previous convictions no longer qualified as predicate offenses, 3 such that he would not be considered a career offender if resentenced under the more current Guidelines. (Crim. Dkt. No. 783.) Shortly thereafter, McKinnon filed a motion to “reopen” the Court's judgment on his second § 2255 motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, and a motion for compassionate release pursuant to § 3582(c)(1)(A) and the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), Pub. L. 116-136, 134 Stat. 281 (2020). (Crim. Dkt. Nos. 793, 801.)
On April 30, 2020, the Court dismissed McKinnon's first § 3592(c)(1)(A) motion on the grounds that he had failed to set forth sufficient extraordinary and compelling circumstances to warrant a reduction in his sentence. (Crim. Dkt. No. 810.) The Court emphasized that McKinnon's presentence investigation report indicated several past convictions “that continue[d] to qualify him as a career offender under the Sentencing Guidelines.” (Id.) The Court also denied McKinnon's request to reopen his most recent § 2255 action, once again noting that it lacked jurisdiction over successive motions. (Crim. Dkt. No. 811.) Although McKinnon appealed these decisions, he ultimately moved for voluntary dismissal, which the Fourth Circuit granted. (Crim. Dkt. Nos. 815, 827, 828, 902.)
On May 29, 2020, the Court denied McKinnon's second § 3592(c)(1)(A) motion, explaining that he had failed to exhaust his administrative remedies in seeking compassionate release. (Crim. Dkt. No. 825.) McKinnon refiled his motion on December 21, 2020, and the Court ultimately denied his request on March 12, 2021. (Crim. Dkt. Nos. 869, 899.) In considering the relevant factors under 18 U.S.C. § 3553(a), the Court determined that “the 180-month sentence, to which the parties agreed, and the Court accepted, was and remains the appropriate sentence, ” and that nothing in the record suggested “immediate, compassionate release [was] warranted.” (Crim. Dkt. No. 899.) McKinnon filed an appeal, and the Fourth Circuit affirmed the Court's decision on 4 July 23, 2021. (Crim. Dkt. Nos. 903, 914.) McKinnon has since filed yet another motion for compassionate release, which is currently pending before the Court. (Crim. Dkt. No. 918.)
It is against this procedural background that McKinnon now attempts to reduce his sentence pursuant to 28 U.S.C. § 2241. More specifically, McKinnon argues that, in accordance with recent Fourth Circuit case law, conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 is no longer considered a “controlled substance offense” for purposes of applying the “career offender” enhancement under the Guidelines. (Dkt. No. 1 at 7.) Consequently, McKinnon contends that he does not qualify as a career offender and is “actual[ly] innocent of the necessary controlled substance instant offense” that triggered his designation as such. (Id.) McKinnon asks that the Court “vacate his sentence” and “remand him back to the district court for resentencing without the career offender enhancement.” (Id. at 8.)
STANDARD OF REVIEW
Under the established local procedure in this judicial district, a careful review has been made of McKinnon's pro se petition pursuant to the Rules Governing Section 2254 Cases in the United States District Courts; the Anti-Terrorism and Effective Death Penalty Act of 1996; 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); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); and Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
See Rule 1(b), Rules Governing § 2254 Cases (allowing district courts to apply any or all of these rules to § 2241 petitions).
The narrow question before the Court is whether it “plainly appears” that McKinnon is not entitled to any relief. Rule 4, Rules Governing § 2254 Cases. If so, his petition must be dismissed; if not, the warden must respond. Id. Because McKinnon is a pro se litigant, his petition is accorded 5 liberal construction. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007); Gordon, 574 F.2d at 1151. Even under this less stringent standard, however, the Court cannot 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, 390-91 (4th Cir. 1990). Such is the case here.
DISCUSSION
It is well-established that a federal prisoner may only seek collateral review of his sentence through 28 U.S.C. § 2255. Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010). Once the prisoner has filed an unsuccessful § 2255 motion, as McKinnon has here, he may not pursue additional collateral review except under narrow circumstances. One such avenue is through the § 2255 savings clause, which allows the prisoner to file a § 2241 petition for a writ of habeas corpus if it “appears that the remedy by [a § 2255] motion is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). However, “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 1192, 1194 n.5 (4th Cir. 1997).
The Fourth Circuit Court of Appeals held in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), that a petitioner must satisfy the following criteria in order to demonstrate that a § 2255 motion is inadequate or ineffective to test the legality of his sentence:
(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.6 886 F.3d at 429. Because the savings clause requirements are jurisdictional, the court cannot entertain a petition that does not satisfy each of the aforementioned elements. See id. at 426 (explaining that the savings clause requirements are jurisdictional and may not be waived); see also Rice, 617 F.3d at 807. In evaluating said elements, the court must “look to the substantive law of the circuit where a defendant was convicted.” Hahn v. Mosley, 931 F.3d 295, 301 (4th Cir. 2019). McKinnon was convicted in the United States District Court for the District of South Carolina, so the undersigned considers the substantive law of the Fourth Circuit Court of Appeals in assessing his claims.
McKinnon's petition appears to be based primarily on the Fourth Circuit's holding in United States v. Norman, 935 F.3d 232 (4th Cir. 2019), which established that a conviction under 21 U.S.C. § 846 does not categorically qualify as a controlled substance offense for purposes of applying the career offender enhancement under the Guidelines. See id. at 237-38 (explaining that because “§ 846 criminalizes a broader range of conduct than that covered by generic conspiracy, ” a conviction under the statute does not qualify as a controlled substance offense under the Guidelines). As noted above, McKinnon argues that in light of this holding, he is “actual[ly] innocent” of the requisite controlled substance offense and no longer subject to the career offender enhancement under §4B1.1 of the Guidelines. McKinnon's argument fails for several reasons. 7
McKinnon appears to cite United States v. Whitley, 737 Fed.Appx. 147 (4th Cir. 2018) (unpublished per curiam) and United States v. McCollum, 885 F.3d 300 (4th Cir. 2018) in support of the same contention. (Dkt. No. 1 at 7.)
Although McKinnon was sentenced pursuant to a Rule 11(c)(1)(C) plea agreement-rather than the Guidelines-the undersigned notes that “a defendant's Guidelines range is generally the starting point and a basis for his ultimate sentence.” See United States v. Taylor, 741 Fed.Appx. 161, 162-63 (4th Cir. 2018) (referencing Hughes v. United States, 138 S.Ct. 1765, 1776 (2018)). Thus, a defendant sentenced pursuant to a Rule 11(c)(1)(C) agreement, like McKinnon, may still be entitled to a sentence reduction based on subsequent, retroactive changes to the Guidelines to the extent the court considered the Guidelines in reaching said agreement. See, e.g., Hughes, 138 S.Ct. at 1777 (finding that Rule 11(c)(1)(C) plea agreement did not preclude district court from reducing defendant's sentence based on retroactive Guidelines revisions, as “there is no reason a defendant's eligibility for relief should turn on the form of his plea agreement”); United States v. Aguas, No. 1:09-cr-0288-JKB, 2020 WL 5369702, at *1 (D. Md. Sept. 8, 2020) (same); but cf. Jenifer v. United States, No. 1:14-cr-0411-RDB, 2020 WL 6826550, at *1 (D. Md. Nov. 20, 2020) (concluding that defendant was not entitled to a reduction in sentence where the district court relied on the Second, it is well-settled that an improper career offender designation does not amount to a fundamental defect as required under the fourth prong of Wheeler. Indeed, in United States v. Foote, 784 F.3d 931 (4th Cir. 2015), the Fourth Circuit held that “sentencing a defendant pursuant to advisory Guidelines based on a career offender status that is later invalidated does not meet [the] remarkably high bar” for habeas relief. 784 F.3d at 936. Accordingly, even if McKinnon was improperly designated as a career offender under the Guidelines, such an error does not amount to applicable statutory sentencing scheme, rather than that prescribed by the Guidelines, in approving Rule 11(c)(1)(C) agreement). Because McKinnon's plea agreement makes several references to his Guidelines range (see Crim. Dkt. No. 300), the undersigned assumes in an abundance of caution and for purposes of this Report and Recommendation only that the Court at least considered the Guidelines in approving the agreed-upon 180-month sentence.
At the outset, McKinnon is not “actually innocent” as he contends. Cognizable claims of actual innocence are rare and must be based on “factual innocence not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). Notably, “actual innocence applies in the context of habitual offender provisions only where the challenge to eligibility stems from factual innocence of the predicate crimes, and not from the legal classification of the predicate crimes.” United States v. Pettiford, 612 F.3d 270, 284 (4th Cir. 2010). In the present matter, McKinnon does not contend that he is actually innocent of the conduct to which he pleaded guilty under 21 U.S.C. § 846; instead, he simply suggests that the Court erroneously enhanced his sentence for the offense based on an alleged improper career offender designation. (See Dkt. No. 1 at 7.) Thus, McKinnon's claims plainly fall short of actual innocence. See Knight v. Warden, FCI Beckley, No. 5:20-cv-00329, 2021 WL 3361698, at *12 (S.D. W.Va. Apr. 29, 2021), adopted, 2021 WL 3355508 (S.D. W.Va. Aug. 2, 2021) (rejecting petitioner's actual innocence claim where he argued “only that he was erroneously classified as a career offender” with respect to his conviction under § 846); see also Pettiford, 612 F.3d at 282 (explaining that to succeed on actual innocence grounds a petitioner must show that he “did not commit the crime of which he was convicted”). 8 a fundamental defect under Wheeler. See Harris v. United States, No. 2:10-cr-01198-MBS, 2021 WL 2402312, at *7 (D.S.C. June 11, 2021) (considering petitioner's § 846 offense in light of Norman and holding that “a subsequently-nullified career offender designation [does] not constitute a fundamental defect such that the nullified designation could serve as a basis for vacating the sentence”); see also Collins v. Entzel, No. 2:18-cv-00095, 2019 WL 3850541, at *5 (N.D. W.Va. Aug. 15, 2019), appeal dismissed, No. 19-7230, 2019 WL 8058098 (4th Cir. Oct. 29, 2019). Because a petitioner must satisfy all four requirements under Wheeler to confer jurisdiction on the § 2241 court, McKinnon cannot invoke the savings clause to challenge his sentence here. See Wheeler, 886 F.3d at 426 (explaining that the savings clause requirements are jurisdictional and may not be waived).
CONCLUSION
The undersigned therefore finds that the Court lacks jurisdiction over this matter and RECOMMENDS that the Court DISMISS the petition without prejudice and without requiring the warden to respond.
IT IS SO RECOMMENDED.
The parties' attention is directed to the Important Notice on the next page. 9
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 835
Charleston, South Carolina 29402
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).