Opinion
2:21-cv-03154-BHH-MGB
08-23-2022
Kenneth Leon Rivers, #42880-004, Petitioner, v. Warden, FCI Williamsburg, Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Kenneth Leon Rivers, a federal prisoner proceeding pro se, brings this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2) (D.S.C.), the assigned United States Magistrate Judge has reviewed the petition and submits this Report and Recommendation to the United States District Judge. For the reasons discussed below, the undersigned recommends that the petition be summarily dismissed, without prejudice and without requiring the warden to respond.
A federal court may take judicial notice of the contents of its own records, as well as those records of other courts. See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); see also Tisdale v. South Carolina Highway Patrol, No. 0:09-cv-1009-HFF-PJG, 2009 WL 1491409, at *1 n.1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. Aug. 27, 2009) (noting that the court may also take judicial notice of factual information located in postings on government web sites). The undersigned therefore takes judicial notice of the records filed in Rivers' underlying criminal case and subsequent habeas actions in reaching the recommendation herein.
Rivers is an inmate at the Federal Correctional Institution, Williamsburg (“FCI Williamsburg”) in Salters, South Carolina. On February 7, 1992, before the United States District Court for the Southern District of Florida, a jury found Rivers guilty of conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. § 846 (Count I); using and carrying three 1 firearms during the commission of a drug trafficking offense in violation of 18 U.S.C. §§ 924(c), 2 (Count II); possession of an unregistered fully automatic firearm in violation of 26 U.S.C. §§ 5861(d), 5871 (Count III); and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count V). (United States v. Florence, Crim. Case No. 1:91-cr-00598-KMM-3, Dkt. No. 380.) Rivers was sentenced to 324 months' imprisonment on Count I; 120 months' imprisonment on Counts III and V, to be served concurrently with each other and Count I; and 360 months' imprisonment on Count II, to be served consecutively. (Id.) On appeal, the United States Court of Appeals for the Eleventh Circuit reversed Rivers' conviction as to Count III and affirmed the remaining counts. United States v. Brantley, 68 F.3d 1283 (11th Cir. 1995).
Rivers was charged with using and carrying an M11 9mm SWD semiautomatic pistol; a 9mm Uzi semiautomatic pistol; and an M10 .45 caliber RPB fully automatic pistol (machine gun).
On March 17, 1997, Rivers filed his first motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging, among other things, that his appellate counsel was ineffective for failing to challenge the jury instructions pertaining to Count II on direct appeal. More specifically, Rivers argued that the instructions should have been more specific as to which of the three guns he possessed for purposes of the § 924(c) charge because the penalty for using and carrying a machine gun is more severe than that prescribed for semiautomatic firearms. (Rivers v. United States, Case No. 1:97-cv-00654-KMM, Dkt. No. 1 at 32-33, 39-40.) See also 18 U.S.C. § 924(c)(1)(B)(ii) (setting a mandatory minimum term of 30 years' imprisonment for machine guns). Rivers claimed that the district court erroneously applied the enhanced penalty for machine guns to his sentence without giving the jury an opportunity to decide which firearm(s) Rivers used or carried during the commission of the drug trafficking crime. (Id.)
On June 3, 1998, the district court denied Rivers' § 2255 motion on the merits, finding, in part, that the purported error in the jury instructions was harmless, as “[t]here was overwhelming 2 evidence that Rivers carried an automatic machine gun” in this case. (Crim. Case No. 598, Dkt. No. 380 at 21-23; see also id. at 16, noting “[t]here was evidence at trial that Rivers had possession of a M-10, 45 caliber pistol which had been converted into an automatic machine gun.”) Rivers filed a notice of appeal, which was dismissed by the Eleventh Circuit on November 16, 1998, for failure to prosecute. (Crim. Case No. 598, Dkt. No. 395; see also App. Case No. 98-5090.)
On or around July 3, 2001, Rivers filed an application with the Eleventh Circuit seeking leave to file a second or successive motion to vacate, set aside, or correct sentence pursuant to § 2255 in light of the United States Supreme Court's decision in Castillo v. United States, 530 U.S. 120 (2000).(App. Case No. 01-13693-J.) Castillo held that the term “machine gun” as used in § 924(c)(1)(B)(ii) refers to an element of a separate aggravated crime to be determined by a jury. Castillo, 530 U.S. at 131. Rivers therefore argued that his sentence was improper because the trial judge determined at sentencing by a preponderance of the evidence that Rivers used and carried a machine gun, thereby triggering the 30-year mandatory minimum sentence under § 924(c)(1)(B)(ii), even though that fact was not charged in the indictment or proved to the jury. On July 25, 2001, the Eleventh Circuit denied Rivers' application, concluding that the holding in Castillo involved only “an issue of statutory interpretation” rather than a new constitutional law as required under § 2255(h)(2) for successive motions. 3
See 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.”).
For a copy of the Eleventh Circuit's order, see Rivers v. McKelvy, Case No. 5:03-cv-00446-WTH-GRJ, Dkt. No. 2 at 26-28 (United States District Court for the Middle District of Florida).
Under 28 U.S.C. § 2255(h), a second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
On January 17, 2003, Rivers filed a motion for relief from judgment pursuant to Rule 60(b), Fed. R. Civ. P., in his underlying criminal case, once again relying on the holding in Castillo to challenge the denial of his § 2255 motion. (Crim. Case No. 598, Dkt. No. 423.) The district court denied Rivers' motion on February 24, 2003, and the Eleventh Circuit affirmed the district court's decision on April 30, 2003. (Crim. Case No. 598, Dkt. Nos. 424, 425, 428.)
On December 15, 2003, Rivers filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Middle District of Florida, essentially renewing the same argument that “[t]he jury's verdict did not specify that it found [Rivers] guilty of using or carrying a ‘machine gun' during and in relation to a drug crime” as required under Castillo. (Rivers v. McKelvy, Case No. 5:03-cv-00446-WTH-GRJ, Dkt. No. 1 at 4.) Rivers argued that § 2255 was therefore “inadequate and ineffective” to challenge this “fundamental defect in sentencing due to the district court's lack of subject matter jurisdiction to impose an enhanced sentence on Count 2 pursuant to 18 U.S.C. § 924(c). . . .” (Case No. 446, Dkt. No. 2 at 6.) Rivers claimed that § 2241 was the appropriate vehicle to bring this claim because Castillo was “automatically retroactive.” (Id. at 6-9, 15-17.)
The Government filed a response in opposition to Rivers' petition on March 17, 2004, arguing that Castillo was not retroactive for purposes of collateral review and, in any event, Rivers' reliance on Castillo to bring a successive § 2255 motion was already rejected by the Eleventh Circuit. (Case No. 446, Dkt. No. 7 at 5.) The district court agreed and denied Rivers' § 2241 petition on October 25, 2006. (Case No. 446, Dkt. No. 9.) On June 1, 2007, the Eleventh Circuit affirmed the district court's decision, noting that “Rivers filed a previous § 2255 motion, which was denied, and he cannot use § 2241 as a means to circumvent the limits on successive applications or to show that § 2255 is inadequate or ineffective.” Rivers v. McKelvy, 236 Fed.Appx. 508, 2007 WL 1575323, at *3 (11th Cir. 2007). 4 Although the order did not definitively resolve whether Castillo was “retroactively applicable,” the Eleventh Circuit stated in a footnote: “We note that, in denying Rivers leave to file a second and successive motion to vacate, this court indicated that Castillo was not retroactively applicable.” Id. at *2 n.6.
Notwithstanding the above, Rivers continued to recycle the same Castillo-based arguments in subsequent actions seeking collateral review:
• On August 31, 2009, Rivers filed a second motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in the Southern District of Florida, which was dismissed as an unauthorized successive motion on September 30, 2009. (Rivers v. United States, Case No. 1:09-cv-22594-KMM, Dkt. Nos. 1, 4.)
• On July 18, 2011, Rivers filed another petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the Middle District of Florida. (Rivers v. Warden, FCC Coleman - USP I, Case No. 5:11-cv-00413-WTH-PRL, Dkt. No. 1.) Following briefings by both parties, the district court dismissed the petition on December 17, 2013, and the Eleventh Circuit affirmed the decision on April 20, 2015. (Case No. 413, Dkt. Nos. 6, 11, 1219.) See also Rivers v. Warden, FCC Coleman-USP 1, 599 Fed.Appx. 942 (11th Cir. 2015).
• On February 28, 2013, Rivers filed another motion for relief from judgment under Rule 60(b), Fed. R. Civ. P., in his underlying criminal case. (Crim. Case No. 598, Dkt. No. 468.) The district court construed Rivers' filing as a § 2255 motion “attempting to take another bite at the apple” and dismissed the motion as untimely and successive on April 22, 2013. (Rivers v. United States, Case No. 1:13-cv-5
21027-KMM, Dkt. No. 4 at 2; Dkt. No. 6; see also Crim. Case No. 598, Dkt. No. 469.)
• On October 15, 2020, Rivers filed his third motion to vacate under 28 U.S.C. § 2255 in the Southern District of Florida, which the district court once again denied as successive. (Rivers v. United States, Case No. 1:20-cv-24244-KMM, Dkt. Nos. 1, 3.)
It is against this repetitive procedural background that Rivers now brings yet another petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, once again arguing that his sentence is improper under Castillo. (Rivers v. Warden, FCI Williamsburg, Case No. 2:21-cv-03154-BHH-MGB, Dkt. No. 1 at 4.) Specifically, Rivers contends that he is “serving an illegal enhanced sentence for Count 2” because he “was neither charged nor was it proven that he used or carried a machine gun during and in relation to a drug trafficking crime; but nonetheless he was sentenced for using and carrying a machine gun.” (Case No. 3154, Dkt. No. 1-1 at 2.) Rivers claims that while the Supreme Court has not determined whether Castillo should be applied retroactively, this Court has the authority to “make the retroactivity decision” for purposes of his petition. (Id. at 5-6.) Based on the above, Rivers asks that “his sentence on Count 2 . . . be vacated and a 5-year consecutive sentence be re-imposed under Section 924(c)(1) for the offense he was convicted.” (Id. at 13.)
STANDARD OF REVIEW
Under the established local procedure in this judicial district, a careful review has been made of Rivers' pro se 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”); 6 and 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, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); and Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
See Rule 1(b), Rules Governing § 2254 Cases (allowing district courts to apply the rules to § 2241 petitions).
The narrow question before the Court is whether it “plainly appears” that Rivers is not entitled to any relief. Rule 4, Rules Governing § 2254 Cases. If so, his petition must be dismissed; if not, the warden must respond. Id. Because Rivers is a pro se litigant, his petition is accorded liberal construction. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007); Gordon, 574 F.2d at 1151. Even under this less stringent standard, however, the Court cannot 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, 390-91 (4th Cir. 1990). Such is the case here.
DISCUSSION
It is well-established that a federal prisoner generally must challenge the legality of his sentence through 28 U.S.C. § 2255, while challenges involving the execution of that sentence fall under the purview of § 2241. Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010); In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997). Once a federal prisoner has filed an unsuccessful § 2255 motion, as Rivers has here, he may not pursue additional collateral review except under narrow circumstances. Specifically, to file a second or successive § 2255 application, the prisoner must “move in the appropriate court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A).
If it appears “that the remedy by [a § 2255] motion is inadequate or ineffective to test the legality of [the] detention,” the prisoner may also proceed with a § 2241 petition pursuant to the “savings clause” under § 2255(e): 7
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). The Fourth Circuit has emphasized, however, that “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.” In re Vial, 115 F.3d at 1194 n.5; see also Cradle v. United States, 290 F.3d 536, 538-39 (3d Cir. 2002) (“It is the inefficacy of the remedy, not the personal inability to use it, that is determinative.”); Jackson v. Brooks, No. 2:02-cv-00068, 2002 WL 32509281, at *3 (E.D. Va. Nov. 20, 2002), aff'd, 61 Fed.Appx. 898 (4th Cir. 2003) (“The Fourth Circuit's denial of [the petitioner's] request [to file a successive petition] does not render § 2255 inadequate or ineffective in challenging his detention so as to entitle him to file a claim for relief under § 2241.”)
Rather, to demonstrate that a § 2255 motion is inadequate or ineffective to test the legality of his sentence, a petitioner must satisfy the strict criteria set forth in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018):
(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.886 F.3d at 429.
Because the savings clause requirements are jurisdictional, the court cannot entertain a petition that does not satisfy each of the aforementioned elements. See id. at 426. In evaluating the elements, the court must “look to the substantive law of the circuit where a defendant was 8 convicted.” Hahn v. Mosley, 931 F.3d 295, 301 (4th Cir. 2019). Rivers was convicted in the United States District Court for the Southern District of Florida, so the undersigned considers the substantive law of the Eleventh Circuit Court of Appeals in assessing his claims. As evidenced above, however, Rivers' petition merely reiterates the same challenges under Castillo previously rejected by the Eleventh Circuit and asks that this Court reach a different conclusion. In short, Rivers cannot rely on these recycled arguments to show that § 2255 is inadequate to test the legality of his sentence under Wheeler.
The applicable “procedural law” is that of the district court's home circuit. Hahn v. Mosley, 931 F.3d 295, 301 (4th Cir. 2019).
With respect to the second prong, Rivers does not point to any precedent demonstrating that the Eleventh Circuit has found the holding in Castillo to apply retroactively for purposes of collateral review. Instead, Rivers seems to argue that this Court should make that critical determination here and apply it to the sentence imposed by the trial court. (Case No. 3154, Dkt. No. 1-1 at 5-6.) As noted above, however, this Court is confined to the substantive law of the Eleventh Circuit. See Goldwire v. Bragg, No. 5:19-cv-00056-BHH, 2020 WL 1242620, at *2 (D.S.C. Mar. 16, 2020) (“Petitioner must show that Supreme Court or Eleventh Circuit substantive law (as opposed to Fourth Circuit law) changed and was deemed to apply retroactively on collateral review.”); Tolbert v. Warden FCI Estill, No. 1:19-cv-2135-BHH, 2022 WL 2763437, at *3 (D.S.C. July 15, 2022) (“Petitioner must show that the substantive law of the [circuit where he was convicted] or the Supreme Court changed and was deemed to apply retroactively on collateral review in order to satisfy the second prong of Wheeler.”).
Although the Eleventh Circuit has not expressly resolved whether Castillo applies retroactively for purposes of collateral review, Rivers' prior § 2241 actions suggest that it does not. For example, in affirming the dismissal of Rivers' first § 2241 petition, the Eleventh Circuit 9 clarified that it found “Castillo was not retroactively applicable” when it denied Rivers' application to file a successive motion to vacate his sentence. Rivers, 2007 WL 1575323, at *2 n.6. The United States District Court for the Middle District of Florida reiterated this point when it dismissed Rivers' second § 2241 motion on December 17, 2013, and the Eleventh Circuit affirmed such on April 20, 2015. (See Case No. 413, Dkt. No. 11 at 7 n.1; Dkt. No. 19.) Based on these decisions, this Court cannot retroactively apply the holding in Castillo to Rivers' petition as contemplated under the second prong of Wheeler.
With respect to the fourth prong, the undersigned also finds that any error in Rivers' sentencing under Count II falls short of “a fundamental defect.” Indeed, the Eleventh Circuit makes clear that a fundamental defect must “inherently result[] in a complete miscarriage of justice” to warrant collateral review. Johnson v. United States, No. 1:08-cr-00110-JRH-BKE, 2020 WL 3408717, at *5 (S.D. Ga. May 19, 2020), adopted, 2020 WL 3405818 (S.D. Ga. June 19, 2020). “On collateral review, relief cannot be granted unless there is ‘grave doubt' that the error ‘had substantial and injurious effect or influence' on the outcome of the underlying proceedings.” See id. (referencing Al-Amin v. Warden Ga. Dep't of Corr., 932 F.3d 1291, 1298 (11th Cir. 2019), cert. denied sub nom. Al-Amin v. Ward, No. 19-573, 2020 WL 1668291 (Apr. 6, 2020)). Rivers makes no such showing here.
As discussed above, the sentencing court expressly found that any improper jury instructions involving Count II were “harmless” because there was “overwhelming evidence” that Rivers “carried an automatic machine gun” in the commission of the drug trafficking crime. (Crim. Case No. 598, Dkt. No. 380 at 16, 21-23.) The District Court for the Middle District of Florida expressed the same finding in Rivers' second § 2241 action, explaining:
[T]he indictment attached to Petitioner's memorandum alleges that the defendants used firearms that included a fully automatic pistol. Likewise, the excerpt of the10
jury instructions attached to Petitioner's memorandum establishes that the jury was instructed that in order to find Petitioner guilty of count two, it needed to find that he “knowingly used or carried the firearms described in the indictment while committing” their drug trafficking offense. Even if this Court could consider the merits of this claim, Petitioner did not suffer the legal error he claims.(Case No. 413, Dkt. No. 11 at 7 n.1 (internal citations omitted).) And finally, the sentencing court reaffirmed this conclusion in Rivers' third § 2255 action, noting that “the issue of the number of firearms [Rivers] used or carried” was addressed in his first motion to vacate where the court found “[t]here was sufficient evidence to sustain the firearm conviction.” (Case No. 21027, Dkt. No. 4 at 2.) The undersigned sees no reason to depart from these courts' well-reasoned holdings. See Hernandez-Vilar v. Antonelli, No. 5:18-cv-00183-MGL-KDW, 2018 WL 1320238, at *2 (D.S.C. Feb. 14, 2018), adopted, 2018 WL 1124399 (D.S.C. Mar. 1, 2018) (explaining that petitioner cannot use § 2241 petition to overrule the decisions of those federal courts which have “already considered and rejected [his] claims relating to the underlying validity of his . . . sentence”). Thus, Rivers also fails to satisfy the fourth prong under Wheeler.
Because a petitioner must satisfy all four requirements under Wheeler in order to confer jurisdiction on the § 2241 court, Rivers cannot use the savings clause to challenge his sentence here. See Wheeler, 886 F.3d at 426 (explaining that the savings clause requirements are jurisdictional and may not be waived).
CONCLUSION
The undersigned therefore RECOMMENDS that the Court DISMISS Rivers' petition for a writ of habeas corpus for lack of jurisdiction, without prejudice and without requiring the warden to file a return.
IT IS SO RECOMMENDED. 11
The parties' attention is directed to the Important Notice on the next page. 12
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 835
Charleston, South Carolina 29402
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). 13