Mingo v. Bragg

Full title: KEMUEL CORNELIOUS MINGO, Petitioner, v. M. TRAVIS BRAGG, Warden, FCI…

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

Date published: Nov 20, 2018

CIVIL ACTION NO. 9:18-1333-TMC-BM (D.S.C. Nov. 20, 2018)

Opinion

CIVIL ACTION NO. 9:18-1333-TMC-BM

11-20-2018

KEMUEL CORNELIOUS MINGO, Petitioner, v. M. TRAVIS BRAGG, Warden, FCI Bennettsville, Respondent.

Bristow Marchant United States Magistrate Judge

REPORT AND RECOMMENDATION

This Petition for writ of habeas corpus was filed on May 10, 2018¹, pursuant to 28 U.S.C. § 2241. Petitioner is currently incarcerated at the Federal Correctional Institution ("FCI") in Bennettsville, South Carolina.

1 Filing date pursuant to Houston v. Lack, 487 U.S. 266, 270-276 (1988).

Respondent filed a motion to dismiss pursuant to Rule 12, Fed.R.Civ.P., on August 3, 2018. As the Petitioner is proceeding pro se, a Roseboro order was entered by the Court on August 6, 2018, advising Petitioner of the importance of a dispositive motion and of the need for him to file an adequate response. Petitioner was specifically advised that if he failed to file an adequate response, the Respondent's motion may be granted, thereby ending his case. After receiving an extension of time to file a response, Petitioner filed a memorandum in opposition on September 4, 2018. On October 4, 2018, based upon certain arguments raised in the Petitioner's response, the undersigned entered an order requesting Respondent to file a reply brief. Respondent filed his reply brief on October 18, 2018.

Respondent's motion is now before the Court for disposition.²

2 This case was automatically referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 19.02(B)(2)(c), D.S.C. The Respondent has filed a motion for summary judgment. As this is a dispositive motion, this Report and Recommendation is entered for review by the Court.

Background

The record before the Court shows that Petitioner was found guilty on November 5, 2003, in the United States District Court for the Western District of North Carolina, of possession of a firearm by a convicted felon, possession with intent to distribute a controlled substance, and using and carrying a firearm during and in relation to a drug trafficking crime and possessing a firearm in furtherance of a drug trafficking crime. See United States v. Mingo, 237 Fed. Appx. 860, 862-863 (4^th Cir. 2007). A presentence report was prepared, and Petitioner was determined to be a career offender. See Court Docket No. 1-2, p. 2. On July 25, 2005, Petitioner was sentenced by the United States District Court for the Western District of North Carolina to 120 months imprisonment for possession of a firearm by a convicted felon, 262 months imprisonment, concurrent, for possession with intent to distribute a controlled substance, and 60 months imprisonment, concurrent, for using and carrying a firearm during and in relation to a drug trafficking crime and possessing a firearm in furtherance of a drug trafficking crime. See United States v. Mingo, No: 3:03-CR-14 (W.D.N.C. July 25, 2005)[Docket No. 6 (filed on June 16, 2016) in United States v. Mingo, Civil Case No. 16-9190 (4^th Cir.)].

Petitioner filed a direct appeal, and his convictions and sentence were affirmed by the United States Court of Appeals for the Fourth Circuit in United States v. Mingo, 237 Fed.Appx. 860 (4^th Cir. Aug. 13, 2007). Petitioner then filed a Petition for Writ of Certiorari in the Supreme Court of the United States, which was denied on February 19, 2008. See Mingo v. United States, 552 U.S. 1199 (2008). On February 13, 2009, Petitioner filed a motion for relief pursuant to 28 U.S.C. § 2255, which was denied by the District Court on initial review on February 20, 2009. United States v. Mingo, Case No. 3:03-CR-00014, 2009 WL 426558 (W.D.N.C. Feb. 20, 2009). On September 18, 2009, the Fourth Circuit dismissed Petitioner's appeal of the lower court's denial of his motion to vacate. United States v. Mingo, 332 Fed.Appx. 874 (4^th Cir. 2009). After the en banc Fourth Circuit decided United States v. Simmons, 649 F.3d 237 (4^th Cir. 2011), Petitioner filed a motion in the Fourth Circuit seeking permission to file a successive § 2255 motion, which the Fourth Circuit denied. In re Mingo, No. 11-291 (4^th Cir. Nov. 17, 2011).

On April 18, 2012, Petitioner filed another § 2255 motion to vacate, seeking to have the sentencing court vacate Petitioner's sentence under Simmons. See Mingo v. United States, No. 3:03, CR-00014, Civil Case No. 3:12-cv-00235, 2013 WL 2370721 at * 1 (W.D.N.C. May 30, 2013). On May 20, 2013, Petitioner filed a supplement to the motion to vacate, seeking alternative relief under 28 U.S.C. § 2241, and under the writs of coram nobis and audita querela. Mingo v. United States, Civil Case No. 3:12-cv-00235 (W.D.N.C.), at Dkt. #5 [Court Docket No. 1-2, pp. 8-16]. On May 30, 2013, the District Court for the Western District of North Carolina dismissed the motion to vacate. Mingo v. United States, Civil Case No. 3:12-cv-00235, 2013 WL 2370721 (W.D.N.C. May 30, 2013). On January 11, 2018, the Fourth Circuit denied Petitioner's certificate of appealability to the extent that he sought to appeal the lower court's order denying relief under §2255, and dismissed that portion of the appeal. With respect to the remaining grounds for relief, the Fourth Circuit affirmed the lower court's holding. See United States v. Mingo, 708 Fed.Appx. 140 (4^th Cir. 2018).

In his instant petition, Petitioner again seeks to be resentenced without the application of the career-offender enhancement pursuant to Simmons, because he contends that several of his prior drug convictions do not qualify as predicate offenses under the Guidelines because the maximum punishment that he could have received for those offenses was less than a year in prison. In Simmons, the Fourth Circuit changed the method for determining whether prior convictions under North Carolina law are considered felonies under federal sentencing laws. United States v. Simmons, 649 F.3d at 244. Simmons was rendered retroactive by Miller v. United States, 735 F.3d 141 (4th Cir. 2013). Therefore, Petitioner argues that, in light of Simmons, none of his prior state drug convictions qualify as "felony drug offenses" to increase his statutory maximum term of imprisonment under 21 U.S.C. § 841.

Discussion

Respondent seeks dismissal of the Petition. When considering a motion to dismiss pursuant to Rule 12(b), the Court is required to accept the allegations in the pleading as true, and draw all reasonable factual inferences in favor of the Petitioner. The motion can be granted only if Petitioner has failed to set forth sufficient factual matters to state a plausible claim for relief "on its face". Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Here, after careful review and consideration of the arguments presented pursuant to this standard, the undersigned finds and concludes for the reasons set forth hereinbelow that the Respondent's motion should be granted, and that this case should be dismissed.

"[I]t is well established that defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255," not through a petition filed pursuant to § 2241. Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citing In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) ). A federal prisoner may file a § 2241 petition only if § 2255 is "inadequate or ineffective to test the legality of [his] detention." In re Jones, 226 F.3d 328, 333 (4th Cir. 2000) (internal quotation marks omitted); see 28 U.S.C. § 2255(e). Recently, in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), the Fourth Circuit held that § 2255 is inadequate or 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.

Wheeler, 886 F.3d at 429 (citing In re Jones, 226 F.3d at 333-34). Petitioner fails to meet the above test as he cannot establish that, subsequent to his first § 2255 motion, "due to this retroactive change [in determining whether prior convictions under North Carolina law are considered felonies under federal sentencing laws], the sentence now presents an error sufficiently grave to be deemed a fundamental defect," as required by the fourth prong. Wheeler, 886 F.3d at 429.

Specifically, Petitioner was sentenced under 21 U.S.C. § 841(a)(1), (b)(1)(C), which states in the relevant portion that,

. . . such person shall be sentenced to a term of imprisonment of not more than 20 years . . . If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 30 years . . . .

See 21 U.S.C. § 841(a)(1),(b)(1)(C).³ While Petitioner contends that none of his prior state court convictions qualify as predicate offenses under this statute, Respondent correctly points out that two of his prior North Carolina drug offenses qualify as "felony drug offenses" so as to increase his statutory maximum of imprisonment under 21 U.S.C. §§ 841 & 851 and "controlled substances offenses" to support his career offender status. Therefore, as Petitioner was sentenced under the advisory guidelines and none of his prior state court convictions have been vacated, Respondent argues that Petitioner cannot proceed under § 2241 based upon the Fourth Circuit's holding in Foote. See United States v. Foote, 784 F.3d 931 (4^th Cir. 2015)[challenge to career offender designation based on Simmons was not cognizable in § 2255 motion, where none of Petitioner's state convictions had been vacated, he had been sentenced under Advisory Guidelines, and his sentence fell within the permissible statutory range].

3 Section 851 pertains to proceedings to establish prior convictions. See 28 U.S.C. § 851.

Moreover, Petitioner still has at least two (2) predicate controlled substance offenses to support his career offender status. Although Petitioner had numerous other state court charges, two of those charges have a sentencing range over 12 months: 01CRS41375 (Offense Date: 9/20/01) and 01CRS54961 (Offense Date: 12/13/01). See Court Docket No. 23, p. 8. Both are PWISD Cocaine (G.S. 90-95A), Class H, and have a Statutory Agg. Range 11-14 months. See Court Docket No. 23, p. 8. Petitioner's argument centers on his plea agreement, which limited his exposure on these two charges to no greater than 12 months. Petitioner asserts that he did not face more than one-year imprisonment on any of his prior North Carolina offenses because the various plea agreements in state court limited his various sentences to no more than one year.⁴ See Petitioner's Response in Opposition to Motion to Dismiss, pp. 4-5. However, the Fourth Circuit addressed this same argument in United States v. Valdovinos, 760 F.3d 322, 330 (4^th Cir. 2014)[holding that the crime category along with the criminal history controls whether a crime is punishable by more than one year, and not the plea bargain]. The Fourth Circuit in Valdovinos rejected the same argument that Petitioner attempts to advance here. Therefore, since Petitioner's convictions carried a penalty of a sentence of up to 14 months for two of his state drug offenses (01CRS41375 and 01CRS4961), those convictions qualify as felony drug offenses.⁵ See N.C.Gen.Stat. § 15A-1340.17(c) & (d); see also Thompson v. United States, No. 12-715, 2015 WL 5541326, at * 3 (M.D.N.C. Sept. 18, 2015)[Class H felony with a criminal history of IV results in a maximum of 14 months].⁶ Accordingly, under Fourth Circuit precedent, Petitioner is unable to satisfy § 2255's savings clause so as to seek relief under § 2241.⁷

4 The Respondent submitted the sentencing grid in effect in North Carolina state courts from December 1, 1995 through December 1, 2009. See Court Docket No. 23-1. They also include a chart outlining all of Petitioner's prior offenses and note that Petitioner also attached in a previous proceeding all of the underlying state documents evidencing in his prior state drug convictions. Id. (citing to Mingo v. United States, No. 12-235, Docket No. 5-1, pp. 5-6 (W.D.N.C.)). It appears uncontested that at least two of these convictions have a statutory range exceeding 12 months except for Petitioner's contention that his plea agreement limited the potential sentence he faced on those convictions.

5 Respondent also points out that Petitioner even previously conceded that his 2002 drug offense conviction 01CRS54961, subjected him to a possible sentence of over 12 months. See Mingo v. United States, Civil Case No. 12-235 (W.D.N.C.), at Docket No. 5, p. 3 [Court Docket No. 1-2, p. 9].

6 Although Petitioner did not raise this issue, the Respondent also notes if Petitioner had attempted to argue that his two prior 2002 convictions should count as only one conviction for career offender purposes in light of United States v. Davis, 720 F.3d 215 (4^th Cir. 2013), this argument fails because Davis does not apply retroactively on collateral review. See Reid v. United States, No. 17-88, 2018 WL 4976800 at * 2 n. 5 (E.D.N.C. Oct. 15, 2018); Dawson v. United States, No. 08-298, 2014 WL 3018222, at * 2 (E.D.N.C. 2014).

7 For the first time, in his response, Petitioner also states that he is challenging his concurrent sentence of 10-years imprisonment on his § 922(g)(1) conviction. See Petitioner's Response in Opposition to Motion to Dismiss, p. 2. However, Petitioner has offered no cogent argument or caselaw to show why his concurrent sentence of 10-years imprisonment on his § 922(g) conviction was improper. Petitioner also even fails to offer any explanation as to how he meets the requirements of § 2255(e) or United States v. Wheeler, 886 F.3d at 423 [holding that if Petitioner cannot satisfy the Savings Clause requirements of § 2255(e), his § 2241 Petition must be dismissed for lack of jurisdiction]. Additionally, Petitioner fails to explain why he did not raise any attack on this sentence in his direct appeal or in his earlier § 2255 motions. Based upon the record before the Court and Petitioner's lack of any supporting facts or law, the undersigned concludes that he fails to meet his burden of demonstrating that § 2255 is inadequate or ineffective with regard to this general assertion of this issue. In re Jones, 226 F.3d at 333-334. Therefore, even if this claim had otherwise been properly presented in the Petition, Petitioner has not shown that the Court has jurisdiction over this issue and it should be dismissed.

Conclusion

Based on the foregoing, it is recommended that the Respondent's motion for summary judgment be granted, and that this Petition be dismissed, without prejudice, for lack of jurisdiction.⁸ Wheeler, 886 F.3d at 423 ["savings clause is a jurisdictional provision"].

8 Petitioner may, of course, seek permission from the United States Court of Appeals for the Fourth Circuit to file a successive section 2255 petition to pursue these claims.

The parties are referred to the Notice Page attached hereto.

/s/_________

Bristow Marchant

United States Magistrate Judge November 20, 2018
Charleston, 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 Court Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. In 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 (4^th Cir. 2005).

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). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three (3) days for filing by mail. Fed. R. Civ. P. 6(a) & (e). Filing by mail pursuant to Fed. R. Civ. P. 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk

United States District Court

Post Office Box 835

Charleston, South Carolina 29401

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); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).