Opinion
Criminal Action No. 5:19-CV-4
01-06-2020
TAVARRAS RHODES, Petitioner, v. JENNIFER SAAD, Respondent.
(BAILEY)
ORDER ADOPTING REPORT AND RECOMMENDATION
The above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge Mazzone [Doc. 24]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Mazzone for submission of a proposed report and a recommendation ("R&R"). Magistrate Judge Mazzone filed his R&R on December 11, 2019, wherein he recommends the Respondent's Motion to Dismiss [Doc. 18] be granted and the petition [Doc. 1] be denied and dismissed without prejudice. For the reasons that follow, this Court will adopt the R&R.
I. BACKGROUND
The petitioner is a federal inmate incarcerated at FCI Gilmer in the Northern District of West Virginia. Petitioner, acting pro se, initiated this habeas corpus proceeding on January 11, 2019, pursuant to 28 U.S.C. § 2241, challenging the validity of his sentence. On November 7, 2008, petitioner was sentenced to 324 months imprisonment for two counts of violation of 21 U.S.C. § 841(a), conspiracy to possess with intent to distribute more than 100 grams of heroin. According to the BOP website, petitioner is scheduled to be released on October 8, 2031.
Taken from Rhodes's criminal docket from the Eastern District of Virginia, available on PACER. See United States v . Rhodes , 3:08-cr-00082-REP-2, Doc. 77. --------
In his memorandum of law in support of his § 2241 petition, Rhodes argues that there has been a retroactive change in law after United States v. Simmons , 649 F.3d 237. [Doc. 1-1 at 6-8]. Specifically, Rhodes argues that Simmons represents a retroactive change in the law under which his sentencing as a career offender presents a fundamental defect. Id. at 7. The R&R notes that Rhodes made a similar Simmons -based argument in support of his 2011 petition under 28 U.S.C. § 2255. [Doc. 24 at 3].
On November 4, 2019, respondent filed a motion to dismiss [Doc. 18]. In her memoranda in support, respondent argues that petitioner cannot meet all four prongs of the test in Wheeler to establish that a petition under § 2255 is inadequate or ineffective to test the legality of his sentence. [Doc. 19]. In particular, respondent argues that Rhodes cannot establish the fourth prong of the Wheeler test because "any error in applying the advisory Guidelines to a post- Booker career offender sentence is not a fundamental defect that results in a complete miscarriage of justice warranting collateral relief." [Doc. 19 at 8]. In response, Rhodes argues that, first, because the Government did not address the first three prongs of Wheeler , that he has met those prongs. [Doc. 22 at 2]. Second, Rhodes argues that his classification as a career offender is a fundamental defect. Id. at 3. In reply, the respondent again argues that under Fourth Circuit precedent, petitioner's sentence under the advisory guidelines, even if there was an error in applying the guidelines, does not constitute a fundamental error. [Doc. 23].
II. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge's findings to which objection is made. However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn , 474 U.S. 140, 150 (1985). Nor is this Court required to conduct a de novo review when the party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson , 687 F.2d 44, 47 (4th Cir. 1982).
In addition, failure to file timely objections constitutes a waiver of de novo review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour , 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce , 727 F.2d 91, 94 (4th Cir. 1984). Pro se filings must be liberally construed and held to a less stringent standard than those drafted by licensed attorneys, however, courts are not required to create objections where none exist. Haines v. Kerner , 404 U.S. 519, 520 (1972); Gordon v. Leeke , 574 F.2d 1147, 1151 (4th Cir. 1971).
Here, objections to Magistrate Judge Mazzone's R&R were due within fourteen (14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure. The petitioner timely filed his Objections to the Magistrate Judge's Report and Recommendation [Doc. 25] on December 30, 2019. Accordingly, this Court will review the portions of the R&R to which objection was filed under a de novo standard of review. The remainder of the R&R will be reviewed for clear error.
III. DISCUSSION
Generally, 28 U.S.C. § 2255 provides the exclusive means for a prisoner in federal custody to test the legality of his detention. However, § 2255(e) contains a savings clause, which allows a district court to consider a habeas petition brought by a federal prisoner under § 2241 where § 2255 is "inadequate or ineffective to test the legality" of the detention. 28 U.S.C. § 2255; see also United States v . Poole , 531 F.3d 263, 270 (4th Cir. 2008). The fact that relief under § 2255 is procedurally barred does not render the remedy inadequate or ineffective to test the legality of a prisoner's detention. In re Jones , 226 F.3d 328, 332 (4th Cir. 2000). In the Fourth Circuit, a § 2255 petition is only inadequate or ineffective to test the legality of detention when:
(1) [A]t the time of conviction, settled law in 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 gatekeeping provision of § 2255 because the new rule is not one of constitutional law.Poole , 531 F.3d at 269 (quoting In re Jones , 226 F.3d at 333-34).
The Fourth Circuit recently found that the savings clause may apply to certain sentencing challenges. It explained:
[W]e conclude that § 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). Because the requirements of the savings clause are jurisdictional, a § 2241 petitioner relying on the § 2255(e) savings clause must meet either the Jones test (if challenging the legality of his conviction) or the Wheeler test (if challenging the legality of his sentence) for the court to have subject-matter jurisdiction to evaluate the merits of the petitioner's claims. See Wheeler , 886 F.3d at 423-26.
Here, the magistrate judge found that "even if Rhodes meets the first, second, and third prongs of Wheeler , he cannot meet the fourth prong, which requires a showing that due to a retroactive change in law, his sentence now presents an error sufficiently grave to be deemed a fundamental defect." [Doc. 24 at 8]. The R&R notes that post- Booker , the Sentencing Guidelines lack legal force, and thus even a misapplication of the guidelines does not make section 2255 "inadequate or ineffective. Id. at 8-9, citing Lester v. Flournoy , 909 F.3d 708 (4th Cir. 2018). Because Rhodes cannot satisfy the savings clause of § 2255, the magistrate judge found that this Court lacks subject-matter jurisdiction and must dismiss the case. [Doc. 24 at 9].
On December 30, 2019, petitioner filed objections to the R&R. First, Rhodes asserts that he has "fulfilled all prongs provided by the savings clause" and that therefore this Court has jurisdiction. [Doc. 27 at 2]. Second, Rhodes asserts that his sentence enhancement as a career offender is a fundamental defect for purposes of the savings clause. Id. at 2-3. Third, because the respondent did not address Rhodes's arguments regarding the other prongs of Wheeler , he contends those arguments should be accepted as uncontested. Id. at 3-4. Although the petitioner repeatedly asserts that his sentence enhancement constitutes a fundamental defect, he does not address the reasoning of either the respondent's argument or the R&R; namely, that even if his sentence was an error, under Fourth Circuit precedent misclassification as a career offender that occurred under post- Booker , advisory guidelines does not fulfill the fourth prong of Wheeler. Accordingly, his objections are overruled.
IV. CONCLUSION
Upon careful review of the above, it is the opinion of this Court that the Report and Recommendation [Doc. 24] should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge's report. Accordingly, the petitioner's objections [Doc. 27] are OVERRULED and the respondent's motion to dismiss [Doc. 18] is hereby GRANTED. This Court ORDERS that the § 2241 petition [Doc. 1] be DENIED and DISMISSED WITHOUT PREJUDICE. This Court further DIRECTS the Clerk to enter judgment in favor of the respondent and to STRIKE this case from the active docket of this Court. Further, the Court notes that it has considered petitioner's supplement to his motion [Doc. 17] and determined it is not a motion; accordingly, it is DISMISSED AS MOOT.
As a final matter, upon an independent review of the record, this Court hereby DENIES a certificate of appealability, finding that the petitioner has failed to make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record and to mail a copy to the pro se petitioner.
DATED: January 6, 2020.
/s/_________
JOHN PRESTON BAILEY
UNITED STATES DISTRICT JUDGE