Opinion
C. A. 6:20-cv-03218-SAL-KFM
12-03-2020
Basil Moore, Petitioner, v. Nanette Barnes, Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
The petitioner, proceeding pro se, 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 September 8, 2020 (doc. 1). By orders dated October 5, 2020, and November 4, 2020, the undersigned informed the petitioner that his case was not in proper form (docs. 5; 9). The petitioner submitted the filing fee on November 10, 2020 (doc. 12); as such, this case is now in proper form for review. However, 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 April 4, 2012, the petitioner pled guilty to two counts of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g), 924(e). See United States v. Moore, C/A No. 7:11-cr-00048-HL-CHW, at docs. 39; 40 (M.D. Ga.). He was sentenced on July 16, 2012, to 216 months imprisonment (120 months on count one to be followed by a consecutive 96 month sentence on count two) to be followed by three years' supervised release, and a special assessment of $200.00. Id. at docs. 51; 52. The petitioner appealed, but his appeal was dismissed based upon the appeal waiver in the petitioner's plea agreement. Id. at docs. 54; 65; see United States v. Moore, C/A No. 12-13948-DD (11th Cir.).
The court takes judicial notice of the records in the petitioner's criminal case in the Middle District of Georgia at case number 7:11-cr-00048-HL-CHW. 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.'”).
The petitioner was originally sentenced to two consecutive 120 month sentences; however, at some point the judgment was amended. See United States v. Moore, C/A 7:11-cr-00048-HL-CHW, at docs. 52; 60.
Petitioner's § 2255 Motions
The petitioner filed a motion on June 28, 2016, which was construed as his first § 2255 motion, arguing that his conviction and sentence were no longer valid based upon Johnson v. United States, 135 S.Ct. 2551 (2015). United States v. Moore, C/A No. 7:11-cr-00048-HL-CHW, at doc. 75. Counsel was appointed to represent the petitioner and his motion was voluntarily dismissed on March 30, 2017. Id. at docs. 77; 81; 82; 83.
The petitioner later filed a motion entitled “claim for relief” on October 21, 2019, which was recharacterized as a second or successive § 2255 motion. Id. at docs. 84; 85. The motion sought relief based upon Rehaif v. United States, 139 S.Ct. 2191 (2019). Id. at docs. 84; 85. A report and recommendation was entered on December 31, 2019, recommending that the petitioner's motion be dismissed as untimely and because his Rehaif claim was procedurally barred. Id. at doc. 88. The report and recommendation was adopted by the Honorable Hugh Lawson, Senior United States District Judge, on February 7, 2020. Id. at doc. 91.
On April 28, 2020, the petitioner filed a motion seeking to file a second or successive § 2255 motion, based upon Rehaif. Id. at doc. 93. A report and recommendation was filed on April 30, 2020, recommending that the motion be dismissed. Id. at doc. 94. The report and recommendation was adopted by Judge Lawson on October 8, 2020. Id. at doc. 100.
During this same time, the petitioner sought permission from the Eleventh Circuit Court of Appeals to file a second or successive § 2255 motion based upon Rehaif. In re Basil Moore, C/A No. 20-13545-F (11th Cir.). The petitioner's request was denied on October 1, 2020. United States v. Moore, C/A No. 7:11-cr-00048-HL-CHW, at doc. 98; In re Basil Moore, C/A No. 20-13545-F (11th Cir. Oct. 1, 2020).
Petitioner's Present Action
The petitioner now seeks habeas relief pursuant to 28 U.S.C. § 2241, claiming that his conviction and sentence are unconstitutional because he is actually innocent of the offense based upon Rehaif (doc. 1 at 6-7). For relief, the petitioner seeks reversal of his conviction and sentenced and an order that he be im mediately released (id. at 7).
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 Bennettsville 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 the petitioner cannot meet the savings clause test, the undersigned recommends dismissing the petition without prejudice and without requiring the respondent to file an answer or return.
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 was unsuccessful in seeking relief under § 2255 in the sentencing court. Nevertheless, “the remedy afforded by § 2255 is not rendered inadequate or ineffective merely because an individual has been unable to obtain relief under that provision, or because an individual is procedurally barred from filing a § 2255 motion.” 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. Here, the petitioner's allegations do not satisfy the In re Jones requirements 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. The crime to which the petitioner pled guilty - being a felon in possession of a weapon - remains a criminal offense; thus, he cannot meet the Jones savings clause test. 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. Here, the petitioner entered a guilty plea, 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).
Nonetheless, the petitioner asserts that he is due relief based upon United States v. Lockhart, 947 F.3d 187 (4th Cir. 2020), and United States v. Gary, 954 F.3d 194 (4th Cir. 2020), wherein the Court of Appeals ruled that in the context of a guilty plea a Rehaif error is a structural error (docs. 1 at 6; 1-1 at 9). However, first, Lockhart and Gary were both direct appeals. Lockhart, 947 F.3d at 187; Gary, 954 F.3d at 194. Here, the petitioner seeks collateral, not direct, review of his conviction; as such, neither Lockhart nor Gary provide a basis for relief for the petitioner. Additionally, the petitioner's reliance on these cases is misplaced because Lockhart and Gary involve the application of Fourth Circuit substantive law, not the substantive law of the petitioner's sentencing court, within the Eleventh Circuit. See Van Hoorelbeke v. United States, C/A No. 0:08-cv-03869-CMC-PJG, 2010 WL 146289, at *4 (D.S.C. Jan. 8, 2010) (internal citation omitted) (recognizing that decisions regarding the substantive law of the Fourth Circuit were inapplicable to the petitioner because he was sentenced in the Ninth (and not the Fourth) circuit). Additionally, the Eleventh Circuit has specifically rejected arguments that a Rehaif defect is jurisdictional in nature; thus, the petitioner's guilty plea is considered a waiver of any potential Rehaif error because it is considered a non-jurisdictional defect. See United States v. Scott, 828 Fed.Appx. 568, 571 (11th Cir. 2020) (noting that “a guilty plea waives all non-jurisdictional defects” and Rehaif errors are non-jurisdictional defects which are waived by a guilty plea) (citing United States v. Bates, 960 F.3d 1278, 1295-96 (11th Cir. 2020); United States v. Moore, 954 F.3d 1322, 1336-37 (11th Cir. 2020)). Accordingly, the petitioner cannot challenge the validity of his § 922(g) conviction under § 2241.
The petitioner cannot save his petition by arguing that he is “actually innocent” of the offense (docs. 1 at 6-7; 1-1 at 5-8). 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 “supported] 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 signed plea agreement forecloses his argument that he is actually innocent based upon Rehaif, because he admitted to his status as a convicted felon, stipulating to a factual basis including that he “is a convicted felon. He was convicted of the felony offense of Armed Robbery in the Superior Court of Thomas County on April 22, 1998, in case number 98-CR-85.” Id. at doc. 39 p. 12. 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 § 2241 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 he is actually innocent due to 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.
The petitioner filed a direct appeal that was dismissed on March 4, 2013. See United States v. Moore, C/A No. 12-13948-DD (11th Cir.). The petitioner then filed his first § 2255 motion on June 28, 2016. See United States v. Moore, C/A No. 7:11-cr-00048-HL-CHW, at doc. 75. Rehaifwas decided by the Supreme Court on June 21, 2019. Rehaif, 139 S.Ct. 2191. As such, Rehaif was decided after the petitioner's first § 2255 motion. However, to date, Rehaif has not been held to be retroactive on collateral review - as recognized in the Eleventh Circuit Court of Appeals (the sentencing circuit). See In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019). Therefore, the petitioner cannot meet the second prong of Wheeler, because he has not shown that subsequent to his direct appeal (2013) and first § 2255 motion (2016), there was a change in the substantive law of the sentencing court that was deemed to apply retroactively on collateral review. Accordingly, 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. As such, the petitioner's § 2241 petition should be dismissed because the savings clause contained in § 2255 does not permit him to bring this § 2241 action.
Of note, to date the Fourth Circuit has also not recognized Rehaif as retroactive on collateral review.
RECOMMENDATION
Accordingly, it is recommended that the petitioner's § 2241 petition be dismissed without requiring the respondent to file a return. The petitioner's attention 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.
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:
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).