Opinion
C. A. 1:21-942-TMC-SVH
04-12-2021
Rushaun Necko Parker, Petitioner, v. N. Barnes, Warden, Respondent.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
Rushaun Necko Parker (“Petitioner”), proceeding pro se, is an inmate incarcerated at the Federal Correctional Institution Bennettsville in the custody of the Bureau of Prisons. He filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. 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 judge. For the reasons that follow, the undersigned recommends the district judge dismiss the petition without requiring the respondent to file an answer.
I. Factual and Procedural Background
On December 10, 2010, Petitioner, with counsel, pleaded not guilty to all counts of a seven-count indictment. See USA v. Parker, Crim. No. 7-10-11-1H (“Parker I”) at ECF No. 47. On March 2, 2011, the jury returned a verdict of guilty on all seven counts of the indictment. Petitioner was initially sentenced on June 15, 2011, and was resentenced on May 8, 2012, to 384 months after his sentence was vacated in part on direct appeal Parker I at ECF No. 104. On June 12, 2015, Petitioner filed a pro se motion to vacate judgment under 28 U.S.C. § 2255 that the district court denied on September 7, 2018. Id., ECF Nos. 123, 155.
The court takes judicial notice of Petitioner's prior cases. See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“The most frequent use of judicial notice of ascertainable facts is in noticing the content of court records.”) (citation omitted).
On September 9, 2019, Petitioner filed a motion for reduction of sentence pursuant to Section 404 of the First Step Act, which the district court denied on January 29, 2020. Id., ECF Nos. 164, 170. On February 12, 2020, Petitioner appealed the denial, which the Fourth Circuit affirmed on August 27, 2020. Id., ECF Nos. 171, 175. In January 2021, Petitioner filed three additional motions for reduction in sentence in the Eastern District of North Carolina that were denied, which Petitioner has appealed. Id., ECF Nos. 186-195.
On March 31, 2021, Petitioner filed the instant petition, again seeking sentence reduction pursuant to Section 404 of the First Step Act. [ECF No. 1 at 2].
II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of this petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, and other habeas corpus statutes. Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
B. Analysis
In his § 2241 petition, Petitioner alleges he is entitled to a reduced sentence based on the First Step Act. Such relief, however, is more properly raised in a motion filed pursuant to 18 U.S.C. § 3582(c)(1)(B) with the sentencing court. See First Step Act, § 404(b), 132 Stat. at 5222 (authorizing only the district court “that imposed a sentence for a covered offense” to impose a reduced sentence under this section); see also United States v. Wirsing, 943 F.3d 175, 185 (4th Cir. 2019) (confirming that § 3582(c)(1)(B) is the proper vehicle to seek relief under the First Step Act). Petitioner was not sentenced in this court; thus, to the extent he is requesting relief under the First Step Act, this court does not have the authority to grant it. See, e.g., Patton v. Saad, No. 1:17-cv-00186, 2020 WL 1330351, at *2 (N.D. W.Va. Mar. 23, 2020) (finding that district court had no authority to grant a § 2241 motion seeking reduced sentence under the First Step Act because such relief is awarded at the sentencing court's discretion in the underlying criminal case and petitioner was sentenced by a different court).
Although a district court may, in its discretion, transfer a wrongly-filed petition to the appropriate court, the undersigned finds that any such transfer would be a waste of judicial resources in the instant case. Williams v. Warden of Fed. Corr. Inst. Tallahassee, Fla., No. 1:15-cv-01086-RBH, 2015 WL 2345272, at *3 (D.S.C. May 14, 2015). Notwithstanding that 28 U.S.C. § 2241 is not the proper vehicle for the relief Petitioner seeks, the First Step Act expressly states:
No court shall entertain a motion made under this section to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 . . . or if a previous motion made under this section to reduce the sentence was, after the date of enactment of this Act, denied after a complete review of the motion on the merits.
First Step Act, § 404(c), 132 Stat. at 5222. Petitioner has previously sought a reduction in his sentence and has received a complete review on the merits.
III. Conclusion and Recommendation
Accordingly, the undersigned recommends the court dismiss the petition in the above-captioned case without prejudice and without requiring the respondent to file a return.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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 901 Richland Street Columbia, South Carolina 29201
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).