Opinion
C/A No. 8:19-cv-0371-MGL-JDA
02-20-2019
Keon Leslie Phillips, Petitioner, v. Warden Antonelli, Respondent.
REPORT AND RECOMMENDATION
Keon Leslie Phillips ("Petitioner") is a prisoner in the custody of the Federal Bureau of Prisons and is currently incarcerated in South Carolina at the Williamsburg Federal Correctional Institution. [Doc. 1 at 1.] Petitioner brings this habeas action under 28 U.S.C. § 2241 and is proceeding pro se. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned Magistrate Judge is authorized to review such petitions for relief and submit findings and recommendations to the District Court. For the reasons below, the Petition is subject to summary dismissal.
BACKGROUND
Petitioner's Conviction and Sentence
On December 15, 2006, Petitioner pled guilty in the United States District Court for the Middle District of Georgia to Count 1 of an Indictment, charging him with conspiracy to posses with intent to distribute in excess of five grams of cocaine base in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(B)(iii). [Doc. 1 at 1]; United States v. Phillips, No. 1:06-cr-00030-WLS-TQL-1 (M.D. Ga. Dec. 15, 2006), Docs. 71-73. On March 29, 2007, the Honorable W. Louis Sands sentenced Petitioner to a term of 327 months' imprisonment as to Count 1, which included a sentencing enhancement pursuant to 21 U.S.C. § 851. United States v. Phillips, No. 1:06-cr-00030-WLS-TQL-1 (M.D. Ga. March 29, 2007), Docs. 90; 92. Petitioner did not file a direct appeal.
The Court dismissed Counts 4-5 and 8-9 of the Indictment, charging Petitioner with additional crimes to which he had pleaded not guilty, pursuant to the plea agreement. United States v. Phillips, No. 1:06-cr-00030-WLS-TQL-1 (M.D. Ga. Apr. 5, 2007), Docs. 92; 72 at 8.
The Court takes judicial notice of the records in Petitioner's criminal case in the Middle District of Georgia at case number 1:06-cr-00030-WLS-TQL-1, as well as his related actions seeking habeas relief in the sentencing court and his appeals and motions filed in the Eleventh Circuit. See Philips v. Pitt Cty. 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 Court notes that the sentencing court imposed the sentence based on Petitioner's final offense level of 34 and criminal history category of VI, resulting in a guidelines range of 262-327 months. United States v. Phillips, No. 1:06-cr-00030-WLS-TQL-1 (M.D. Ga. March 29, 2007); Doc. 90 at 1.
Petitioner's Motions for Sentence Reduction
On June 15, 2010, Petitioner filed a motion to reduce his sentence under 18 U.S.C. § 3582(c)(2), id. Doc. 140, but the Court denied his motion on June 28, 2010, id. Doc. 141. On October 30, 2014, Petitioner filed a second motion to reduce his sentence under 18 U.S.C. § 3582(c)(2), id. Doc. 178, but the Court denied his motion on March 26, 2015, id. Doc. 179. On January 30, 2019, Petitioner filed a motion to reduce his sentence under the First Step Act of 2018. Id. Doc. 199. That motion remains pending in the sentencing court.
Petitioner's § 2255 Motion
On December 27, 2010, Petitioner filed a motion pursuant to 28 U.S.C. § 2255 in the sentencing court, id. Doc. 154, but the sentencing court denied his motion on December 6, 2011, id. Docs. 158; 160; 161, and the Eleventh Circuit Court of Appeals denied his appeal on May 10, 2012, id. Doc. 167. Petitioner then filed a motion with the Eleventh Circuit seeking permission to file a second or successive § 2255, but the court denied his request on July 12, 2016. In re: Keon Phillips, No. 16-13669-J (11th Cir. Jul. 12, 2016).
Petitioner's Present Action
Petitioner now seeks habeas relief pursuant to 28 U.S.C. § 2241, claiming that his sentence is unconstitutional because the sentencing court applied an "erroneous increase of [the] mandatory minimum" and because trial counsel was ineffective. [Doc. 1 at 6-7.] For his relief, Petitioner requests that the Court vacate his sentence and remand his case for re-sentencing without the § 851 enhancement. [Id. at 8.] Petitioner asserts that § 2255 is inadequate and ineffective to test the legality of his sentence "because there was an erroneous increase of his mandatory minimum." [Id. at 5.]
APPLICABLE LAW
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings pursuant to the procedural provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted 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, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, however, the Petition is subject to summary dismissal.
Furthermore, this Court is charged with screening Petitioner's lawsuit to determine if "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4 of Rules Governing Section 2254 Cases in the United States District Courts; see also Rule 1(b) Rules Governing Section 2254 Cases in the U.S. District Courts (2012) (a district court may apply these rules to a habeas corpus petition not filed pursuant to § 2254).
DISCUSSION
Savings Clause Test
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 also 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 802, 807 (4th Cir. 2010) (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." 28 U.S.C. § 2255(e); Jones, 226 F.3d at 333. Accordingly, Petitioner cannot challenge his federal 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, Petitioner's § 2241 action is barred unless he can demonstrate that the relief available to him under § 2255 is inadequate or ineffective. Here, 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).
Recently, the Fourth Circuit established a test for evaluating whether a petitioner may meet the savings clause under § 2255 when he contests his sentence:
[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 415, 429 (4th Cir. 2018). Thus, for Petitioner to be entitled to relief from his sentence under § 2241, he must satisfy this savings clause test, which is a jurisdictional requirement under § 2255. Id. at 426 (explaining, "the savings clause requirements are jurisdictional"). The Court may sua sponte raise subject matter jurisdiction, and the Fourth Circuit has held that, if a petitioner cannot meet the savings clause requirements, then the § 2241 petition "must be dismissed for lack of jurisdiction." Rice, 617 F.3d at 807. While at first blush, this issue may seem complex for initial review under § 1915, consideration of it is required because the § 2255 savings clause is a jurisdictional requirement, and an analysis of whether Petitioner meets the new four factor savings clause test created in Wheeler is therefore required.
Petitioner appears to be able to meet the first requirement of Wheeler that his sentence was legal at the time of sentencing. However, Petitioner cannot meet the second element because he has failed to show that, subsequent to his first § 2255 motion, the settled substantive law under which he was sentenced in the Eleventh Circuit or of the United States Supreme Court changed and was deemed to apply retroactively on collateral review.
Petitioner's Arguments
Petitioner makes two arguments to support his claim for relief. Both grounds address Petitioner's contention that the sentencing court improperly increased his mandatory minimum sentence from 10 years to 20 years by applying an enhancement under 28 U.S.C. § 851. [Doc. 1-1 at 2, 6.]
For his first ground, Petitioner claims that the sentencing court erroneously applied the enhancement because the Government failed to satisfy the prerequisites under § 851. [Id. at 3.] Specifically, Petitioner contends the Government failed to file a timely § 851 notice, the sentencing court failed to effectively question Petitioner about the validity of the alleged predicate offense for the enhancement as required by § 851(b), Petitioner was never notified of his right to challenge the alleged predicate offense, the Government failed to file an information prior to sentencing, and the Government failed to list the § 851 notice in the Indictment. [Id. at 5.] Petitioner contends that these failures deprived the sentencing court of jurisdiction to enhance his sentence. [Id. at 4.]
The statute provides, in relevant part, as follows:
(a) Information filed by United States Attorney
(1) No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon. . . .
(b) Affirmation or denial of previous conviction
21 U.S.C. § 851.If the United States attorney files an information under this section, the court shall after conviction but before pronouncement of sentence inquire of the person with respect to whom the information was filed whether he affirms or denies that he has been previously convicted as alleged in the information, and shall inform him that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.
For his second ground, Petitioner claims that trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984). [Id.] Specifically, Petitioner contends trial counsel failed to argue that the Government did not file the § 851 notice prior to sentencing, to object when the sentencing court did not address the alleged predicate offense for the § 851 enhancement, or to inform Petitioner of his right to challenge the § 851 enhancement. [Id. at 5-9.] According to Petitioner, had trial counsel provided effective representation, the § 851 enhancement would never have been applied and his sentencing would have been different. [Id. at 9.]
Analysis
Petitioner's arguments are without merit, and he cannot meet the second element of the Wheeler savings clause test because he has failed to show that, subsequent to his first § 2255 motion, the settled substantive law changed and was deemed to apply retroactively on collateral review. As an initial matter, the Court notes that Petitioner has not addressed any of the factors under the Wheeler savings clause test and, importantly, has not identified any substantive law change under which he seeks to challenge his sentence. Instead, Petitioner simply asserts that he is entitled to relief under § 2241 because the Government and sentencing court failed to comply with the prerequisites for an enhancement under § 851 and trial counsel was ineffective for failing to object to the § 851 enhancement. These allegations, however, fail to satisfy the requirements under Wheeler. The Court further notes that Petitioner's allegations that the Government and sentencing court failed to comply with the prerequisites for an enhancement under § 851 are ordinarily raised in a direct appeal and are not proper in a habeas action such as this case.
Many federal prisoners, such as Petitioner, have erroneously attempted to overturn federal convictions or sentences by filing a § 2241 action. See, e.g., San-Miguel v. Dove, 291 F.3d 257, 259-61 (4th Cir. 2002) (upholding summary dismissal of a § 2241 action filed in the District of South Carolina that challenged convictions and sentences entered in the United States District Court for the District of Puerto Rico). As noted, however, § 2255 is not an inadequate or ineffective remedy simply because a motion under § 2255 is unsuccessful, untimely, or successive. In Re Vial, 115 F.3d at 1194 n.5. In its seminal decision regarding the savings clause requirements under § 2255, the Fourth Circuit Court of Appeals held that "§ 2255 is not inadequate or ineffective merely because an individual is unable to obtain relief under that provision. A contrary rule would effectively nullify the gatekeeping provisions." In re Jones, 226 F.3d 328, 333 (4th Cir. 2000) (citations omitted). As such, the Fourth Circuit has provided stringent tests, in Jones for challenging a conviction and in Wheeler for challenging a sentence, to meet the savings clause provision. Notably, however, the savings clause is not satisfied merely because a petitioner's prior § 2255 motion was unsuccessful or because a petitioner is unable to meet the requirements to file a successive § 2255 motion. Chisholm v. Pettiford, No. 6:06-2032-PMD-WMC, 2006 WL 2707320, at *2 (D.S.C. Sept. 18, 2006).
Here, Petitioner does not attack the underlying predicate offenses that formed the basis for his § 851 enhancement. Instead, as stated, he argues that the sentencing court erred by applying the enhancement because the Government failed to file a proper notice and the court failed to question Petitioner at the sentencing hearing and that trial counsel erred by failing to object to these deficiencies. Such arguments fail to meet the requirements of the savings clause. Petitioner has already attempted to challenge his sentence in his first § 2255 action, but his motion was unsuccessful. And, the instant Petition fails to assert any substantive law change and is completely devoid of allegations suggesting that § 2255 is inadequate or ineffective such that the savings clause would apply to permit Petitioner to raise his claims under a § 2241 petition. See United States v. Miller, No. 6:06-cv-548-HFF, 2007 WL 2684844, at *3 (D.S.C. Sept. 7, 2007) (explaining § 2255 affords petitioner the relief which he seeks and § 2241 cannot be used in lieu of a proceeding under § 2255) (citing Swain v. Pressley, 430 U.S. 372, 381 (1977)). Petitioner has failed to satisfy the elements of the Fourth Circuit's Wheeler test to invoke the savings clause to challenge his sentence. Accordingly, Petitioner's § 2241 action should be dismissed because the savings clause contained in § 2255 does not permit him to bring this § 2241 action.
CONCLUSION AND RECOMMENDATION
Petitioner has not demonstrated that, under Wheeler, a motion filed pursuant to § 2255 is inadequate or ineffective to test the legality of his sentence thereby allowing him to file a § 2241 petition. This Court, therefore, lacks jurisdiction to consider the Petition. Accordingly, it is recommended that the § 2241 Petition be dismissed without prejudice and without requiring the Respondent to file an answer or return. Petitioner's attention is directed to the important notice on the next page.
See Platts v. O'Brien, 691 F. App'x 774 (4th Cir. June 22, 2017) (citing S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) ("A dismissal for . . . [a] defect in subject matter jurisdiction[ ] must be one without prejudice, because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits.").
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge February 20, 2019
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
Post Office Box 2317
Florence, South Carolina 29503
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).