Opinion
C/A No. 6:20-cv-02423-BHH-KFM
09-02-2020
Christopher Lee Miller, Petitioner, v. Warden Phelps, Respondent.
REPORT OF MAGISTRATE JUDGE
The petitioner, proceeding pro se and in forma pauperis, brings this action pursuant to 28 U.S.C. § 2241 for habeas relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court.
The petitioner's § 2241 petition was entered on the docket on June 25, 2020 (doc. 1). By order issued on July 21, 2020, the petitioner was informed that his case was not in proper form for judicial screening (doc. 8). The petitioner complied with the Court's Order, bringing his case into proper form. Nevertheless, for the reasons set forth below, it is recommended that the petitioner's § 2241 petition be dismissed without prejudice and without requiring the respondent to file an answer or return.
BACKGROUND
Petitioner's Conviction and Sentence
On October 23, 2018, the petitioner pled guilty in the United States District Court for the District of South Carolina to Count 1 of an Indictment charging him with possession of a firearm by a convicted felon. See United States v. Miller, C/A No. 7:18-cr-00478-BHH-1, at docs. 30; 31 (D.S.C.). On May 19, 2019, the Honorable Bruce Howe Hendricks, United States District Judge, sentenced the petitioner to a term of 70 months' imprisonment followed by three years of supervised release. Id. at docs. 37; 38. The petitioner did not appeal; however, on April 9, 2020, he filed a motion in his criminal case seeking the appointment of counsel to address the effect of Rehaif v. United States, 139 S.Ct. 2191 (2019) on his conviction and sentence. Id. at doc. 48. The petitioner's motion was granted and the federal public defender has been appointed to represent him before the sentencing court. Id. at docs. 49; 50. At this time, his appointed counsel has not filed any motions.
The court takes judicial notice of the records in the petitioner's criminal case at case number 7:18-cr-00478-BHH-1. See Phillips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (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 Present Action
Here, the petitioner seeks habeas relief pursuant to 28 U.S.C. § 2241, claiming that his conviction is unconstitutional in light of Rehaif (doc. 1 at 6-7). For relief, the petitioner requests that this court reverse his Section 922(g) conviction and sentence (id. at 8).
STANDARD OF REVIEW
The undersigned has reviewed the 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 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214; and other habeas corpus statutes. As a pro se litigant, the petitioner's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The mandated liberal construction means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. However, 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, 391 (4th Cir. 1990).
DISCUSSION
The petitioner filed this action pursuant to 28 U.S.C. § 2241 (doc. 1). Because the petitioner is incarcerated in the District of South Carolina and he names the warden of FCI Edgefield as the respondent, his § 2241 petition is properly filed in this Court. Liberally construing the petitioner's allegations, the petitioner seeks to utilize the § 2255 savings clause test in order to attack the validity of his federal conviction and sentence in light of Rehaif via the present § 2241 action (doc. 1). As set forth in more detail below, because of pending matters in the petitioner's criminal case, as well as the petitioner's failure to meet the savings clause test, the undersigned recommends dismissing the petition without prejudice and without requiring the respondent to file an answer or return.
Pending Matters in the Petitioner's Criminal Case
As an initial matter, as noted above, in April 2020, an order was entered in the petitioner's criminal case appointing the Federal Public Defender to analyze the application of Rehaif to the petitioner's case and file the appropriate motions. See United States v. Miller, C/A No. 7:18-cr-00478-BHH-1, at docs. 49; 50. Efficient judicial administration generally requires the federal courts to avoid duplicative action. See Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). Generally, a case pending in federal court "may be dismissed for reasons of wise judicial administration whenever it is duplicative of a parallel action already pending in another federal court." Nexsen Pruet, LLC v. Westport Ins. Corp., C/A No. 3:10-cv-00895-JFA, 2010 WL 3169378, at *2 (D.S.C. Aug. 5, 2010) (internal quotation marks omitted) (quoting Motley Rice, LLC v. Baldwin & Baldwin, LLP, 518 F. Supp. 2d 688, 697 (D.S.C. 2007)). Suits are considered parallel if "substantially the same parties litigate substantially the same issues in different forums." New Beckley Mining Corp. v. Int'l Union, United Mine Workers of Am., 946 F.2d 1072, 1073 (4th Cir. 1991) (citing LaDuke v. Burlington N. R.R., 879 F.2d 1556, 1559 (7th Cir. 1989)). In the petitioner's criminal case, no motions are currently pending; however, the Federal Public Defender has been appointed for the express purpose of addressing any challenges the petitioner may have based upon Rehaif. As such, judicial efficiency supports dismissal of the instant action in light of the Federal Public Defender's appointment on the petitioner's behalf in the petitioner's criminal case.
The Petitioner cannot meet the Savings Clause Test
As affirmed in Wheeler, the § 2255 savings clause test is jurisdictional. United States v. Wheeler, 886 F.3d 415, 426 (4th Cir. 2018). The court may sua sponte raise subject matter jurisdiction, and the Court of Appeals has held that if a petitioner cannot meet the savings clause requirements, then the § 2241 petition "must be dismissed for lack of jurisdiction." Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010). Because the § 2255 savings clause is a jurisdictional requirement, an analysis of whether the petitioner meets the savings clause test is appropriate for initial review under § 1915.
Unlike a § 2255 motion, which is filed in the trial and sentencing court, a § 2241 petition is filed in the district where the petitioner is incarcerated. See 28 U.S.C. § 2241(a); In re: Jones, 226 F.3d 328, 332 (4th Cir. 2000). "Generally, a § 2241 petition 'attacks the execution of a sentence rather than its validity,' whereas a § 2255 motion 'attacks the legality of detention.'" Rice v. Lamanna, 451 F. Supp. 2d 755, 758 (D.S.C. 2006) (quoting Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)); see United States v. Miller, 871 F.2d 488, 489-90 (4th Cir. 1989) (distinguishing between attacks to the "computation and execution of the sentence rather than the sentence itself"). Thus, "defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255." Rice v. Rivera, 617 F.3d at 807 (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 the prisoner's conviction or sentence when § 2255 is "inadequate or ineffective to test the legality of . . . detention." 20 U.S.C. § 2255(e); Jones, 226 F.3d at 333. Accordingly, the petitioner cannot challenge his federal conviction and sentence under § 2241, unless 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). In other words, as applied here, the petitioner's § 2241 action is barred unless he can demonstrate that the relief available to him under § 2255 is inadequate or ineffective. Here, the petitioner has not sought relief under § 2255 in the sentencing court. 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." See In re Vial, 115 F.3d at 1194 n.5 (citations omitted).
To trigger the "savings clause" of § 2255(e) and proceed under § 2241, the petitioner must meet the savings clause test as contemplated in United States v. Wheeler, 886 F.3d 415 (challenges to sentences) or In re Jones, 226 F.3d 328 (challenges to convictions).
In In re Jones, the Court of Appeals held that in order to meet the savings clause under § 2255 when contesting the underlying validity of a federal criminal conviction, and seek relief under § 2241, a petitioner must show that
(1) at the time of the 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 gate-keeping provisions of § 2255 because the new rule is not one of constitutional law.In re Jones, 226 F.3d 333-34. As an initial matter, as affirmed by the Fourth Circuit, the petitioner cannot meet the savings clause test because he has not filed a motion pursuant to § 2255. See Steele v. Huggins, 808 F. App'x 208, 208-09 (4th Cir. 2020) (unpublished) (citing Rice, 617 F.3d at 807). Additionally, the petitioner's allegations do not satisfy the second In re Jones requirement because there are no allegations that the conduct for which the petitioner was convicted is no longer criminal due to a change in the law. Here, the crime to which the petitioner pled guilty, being a felon in possession of a firearm, remains a criminal offense. Nonetheless, the petitioner argues, as noted, that his conviction is no longer valid based upon Rehaif (doc. 1). In Rehaif, the Supreme Court held that the Government must prove both that a defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm. Rehaif, 139 S.Ct. at 2200. The requirement set forth in Rehaif, however, was in the context of a jury trial. Id. at 2195. In the instant case, the petitioner pled guilty to being a felon in possession of a firearm—thus admitting all the facts essential to sustain his conviction under § 922(g). See United States v. Broce, 488 U.S. 563, 569 (1989) (noting that a "plea of guilty and the ensuing conviction comprehend all the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence"); United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993) (noting that a "knowing, voluntary, and intelligent plea to an offense conclusively establishes the elements of the offense and the material facts necessary to support the conviction and waives non-jurisdictional defects, including those to an indictment). Nonetheless, the petitioner asserts that he is due relief because of a structural error in his guilty plea, appearing to be relying upon United States v. Gary, 954 F.3d 194 (4th Cir. 2020) (doc. 1 at 6-7). The petitioner's reliance on this case is misplaced. Gary was a direct appeal in which the Fourth Circuit vacated and remanded a defendant's conviction. Gary, 954 F.3d at 194. Here, the petitioner seeks collateral, not direct, review of his conviction. As such, Gary does not provide a basis for relief for the petitioner. Accordingly, the petitioner cannot challenge the validity of his § 922(g) conviction under § 2241.
Liberally construed, the petitioner asserts that he is "actually innocent" based upon Rehaif; however, an actual innocence claim does not save the petition. 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); see also United States v. Pettiford, 612 F.3d 270, 282 (4th Cir. 2010) (noting that to succeed on actual innocence grounds a petitioner must show that he "did not commit the crime of which he was convicted; this standard is not satisfied by a showing that a petitioner is legally, but not factually, innocent"). By making the argument of "actual innocence," the petitioner seeks to obtain review of his claims by showing that his case falls into the "narrow class of cases implicating a fundamental miscarriage of justice." Cornell v. Nix, 119 F.3d 1329, 1333 (8th Cir. 1997). In the present matter, the petitioner's actual innocence claim is facially inadequate because he has not "support[ed] his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995). Instead, the petitioner argues that, post Rehaif, his conviction is no longer valid (doc.1 at 6-7). However, review of the petitioner's presentence investigation report, which was adopted without change (or objection by the petitioner) in the sentencing court, notes that the petitioner has two prior convictions for being a felon in possession of a weapon in the South Carolina state court, thus foreclosing his argument that he is actually innocent based upon Rehaif. See United States v. Miller, C/A No. 7:18-cr-00478-BHH-1, at doc. 35 pp. 6, 10; doc. 39. As such, the petitioner has not satisfied the requirements for a valid innocence claim relating to his § 922(g) conviction. Accordingly, the petitioner cannot use "actual innocence" to bypass the gatekeeping requirements of § 2255 and use the present § 2241 petition to seek § 2255 relief via that statute's savings clause.
Secondly, to the extent the petitioner's request for re-sentencing could be liberally construed as a challenge to the sentence he received for his § 922(g) conviction, the petition does not meet the Wheeler test, which sets forth when a petitioner may meet the savings clause under § 2255 to contest his sentence. The Court of Appeals noted that:
[Section] 2255 is inadequate and ineffective to test the legality of a sentence when: (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.United States v. Wheeler, 886 F.3d at 429 (citations omitted).
The petitioner, in the present matter, argues that his sentence is unconstitutional and should be vacated and set aside because of Rehaif (doc. 1). The petitioner, however, cannot meet the second Wheeler factor: that "subsequent to [his] direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review." Wheeler, 886 F.3d at 429.
As noted above, the petitioner has not yet filed a motion pursuant to § 2255. Moreover, even if the petitioner had filed a motion pursuant to § 2255 prior to Rehaif, he cannot utilize Wheeler to attack his sentence because Rehaif has not been held to be retroactive on collateral review. See In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019) (recognizing that Rehaif has not been recognized as retroactive on collateral review). Therefore, the petitioner cannot meet the second prong of Wheeler, because he has not shown that there was a change in the substantive law of the sentencing court that was deemed to apply retroactively on collateral review. As such, the petitioner has failed to satisfy the elements of the Court of Appeal's Wheeler test to invoke the savings clause of § 2255 and challenge his sentence. Accordingly, the petitioner's § 2241 petition should be dismissed because the savings clause contained in § 2255 does not permit him to bring this § 2241 action.
RECOMMENDATION
Accordingly, it is recommended that the petitioner's § 2241 petition be dismissed without requiring the respondent to file a return. The attention of the parties is directed to the important notice on the next page.
The petitioner cannot cure the deficiencies noted herein relative to the § 2255 savings clause, however, dismissal without prejudice is recommended because the Court of Appeals has held that dismissals for lack of subject-matter jurisdiction must be without prejudice. S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013).
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge September 2, 2020
Greenville, South Carolina
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).