Opinion
C/A No.: 5:20-389-HMH-KDW
12-23-2020
Anthony Sagoes, Petitioner, v. Warden Dobbs, Respondent.
REPORT AND RECOMMENDATION
Anthony Sagoes ("Petitioner"), proceeding pro se, is a federal prisoner incarcerated at Federal Correctional Institution Williamsburg. He filed this petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's Motion for Summary Judgment. ECF No. 21. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. ECF No. 22. After being granted an extension, ECF No. 32, Petitioner filed a Response in Opposition to the Summary Judgment Motion on June 5, 2020, which he amended on September 11, 2020. ECF Nos. 34, 36.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that the court grant Respondent's Motion for Summary Judgment. I. Factual and Procedural Background
A jury found Petitioner guilty of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1) and 924 (e). See United States v. Sagoes, No.: 1:09-cr-00049-ELR-GGB-1 (N.D. Ga. Nov. 5, 2009), ECF No. 49. The court sentenced Petitioner to 216 months' imprisonment. Id., ECF No. 54. Petitioner appealed his conviction and sentence, and the Eleventh Circuit Court of Appeals ("Eleventh Circuit") affirmed the judgment on August 26, 2010. Id., ECF Nos. 55, 68. Petitioner filed a motion to vacate judgment under 28 U.S.C. § 2255 on April 12, 2011, that the district court denied on April 28, 2014. Id., ECF Nos. 69, 78. Petitioner filed a second § 2255 motion on June 23, 2016, that the district court denied on November 16, 2017. Id., ECF Nos. 92, 106.
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).
Petitioner filed the instant habeas petition seeking to vacate his conviction under the holding in Rehaif v. United States, 139 S. Ct. 2191 (2019). ECF No. 1. II. Discussion
A. Standard for Summary Judgment
The court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;" or "showing . . . that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 323 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
B. Analysis
Petitioner contends his 18 U.S.C. § 922(g) conviction for being a felon in possession of a firearm should be vacated in light of the holding in Rehaif, 139 S. Ct. 2191. ECF No. 1 at 6. Petitioner argues he did not know he possessed a firearm, nor did he know he belonged to the relevant category of persons barred from possessing a firearm. Id.
"[I]t is well established that 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)). In contrast, a motion filed under § 2241 is typically used to challenge the manner in which a sentence is executed. See In re Vial, 115 F.3d at 1194 n. 5. A petitioner cannot challenge his federal conviction and sentence under § 2241 unless he can satisfy 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); see also Rice, 617 F.3d at 807 (finding that if a federal prisoner brings a § 2241 petition that does not fall within the scope of this savings clause, then the district court must dismiss the "unauthorized habeas motion . . . for lack of jurisdiction").
The Fourth Circuit has held that a petitioner must establish the following criteria to demonstrate that a § 2255 motion is inadequate or ineffective to test the legality of a prisoner's detention:
(1) at the time of 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 gatekeeping provisions of § 2255 because the new rule is not one of constitutional law.In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000). The Fourth Circuit has repeatedly held that the savings clause only preserves claims in which the petitioner alleges actual innocence of a conviction. See United States v. Poole, 531 F.3d 263, 267 n.7 (4th Cir. 2008). As the Supreme Court has told us, "'actual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998).
Respondent concedes Petitioner meets the Jones test, but contends Petitioner is not entitled to habeas relief arguing the omission of the knowledge-of-status element from the indictment and during the trial did not have a substantial and injurious effect or influence on Petitioner's conviction. ECF No. 21-1 at 6-11. In his response, Petitioner acknowledges Respondent's concession that he meets the Jones test and argues his Rehaif error was not harmless. ECF No. 34. Petitioner cites to Fourth Circuit Court of Appeals ("Fourth Circuit") case law and argues the Rehaif error was a structural error that affected his substantial rights and the outcome of his trial. Id. at 2-4. Petitioner alleges neither his attorney, the prosecutor, or judge charged the essential element, in his indictment or jury instructions, that he knew he belonged to the relevant category of persons barred from possessing a firearm. Id. at 5. Petitioner argues this is reversable error under Fourth Circuit precedent. ECF No. 38.
Section 922(g)(1) prohibits any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year (a "convicted felon") from possessing any firearm or ammunition. 18 U.S.C. § 922(g)(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.
Although Respondent cites to Rehaif as proof Petitioner has met the second element of the Jones test, Respondent does not address whether the change in law under Rehaif made the conduct for which Petitioner was convicted no longer criminal. In re Jones, 226 F.3d at 333-34. The undersigned has reviewed caselaw from the Eleventh Circuit, Petitioner's circuit of conviction, and has not found any case that has found the possession of a firearm by a felon under 18 U.S.C. § 922(g) to no longer be criminal. See In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019) (finding Rehaif "did not announce a 'new rule of constitutional law,' but, instead, clarified that, in prosecuting an individual under 18 U.S.C. § 922(g) and 18. U.S.C. § 924(a)(2, . . . the government must prove that the defendant knew he violated each of the material elements of § 922(g)."); In re Wright, 942 F.3d 1063, 1064-65 (11th Cir. 2019) (stating Rehaif "clarified the requirements for prosecuting an individual under 18 U.S.C. §§ 922(g) and 924(a)(2)"); United States v. McLennan, 958 F.3d 1110, 1118 (11th Cir. 2020) (holding that the failure to charge an element of the offense pre-Rehaif is a non-jurisdictional defect that does not affect the rights of the accused). The undersigned finds Petitioner does not meet the second prong of the Jones test because the conduct for which Petitioner was convicted continues to be deemed criminal. Because Petitioner's claims cannot be addressed under § 2241, the undersigned recommends Petitioner's habeas petition be dismissed.
"In evaluating substantive claims under the savings clause," a district court must "look to the substantive law of the circuit where a defendant was convicted." Hahn v. Moseley, 931 F.3d 295, 301 (4th Cir. 2019).
To the extent the court determines Petitioner meets the requirements of the Jones savings clause, the undersigned finds Petitioner has failed to establish he is entitled to habeas relief under Eleventh Circuit substantive law. The record before the court shows the indictment contained the element of known possession of a firearm. ECF No. 21-5 at 1-2. Also, Petitioner was found guilty of being a felon in possession of a firearm after a jury trial where Petitioner admitted he possessed a firearm, and the jury charges included the element of known possession of a firearm, ECF No. 21-8 at 30-34, 121-24; ECF No. 21-9. Petitioner also entered a stipulation at his trial where he admitted he was convicted of an offense that was punishable by imprisonment for a term exceeding one year. ECF No. 21-8 at 16. Petitioner's Pre-Sentence Report also shows Petitioner previously served multiple terms of imprisonment greater than one year for burglary and possession of cocaine convictions, and Petitioner was also previously convicted of possession of a firearm by a convicted felon. See ECF No. 28 at 10-27. The undersigned finds Petitioner has failed to show that a Rehaif error in his indictment or at his trial had a substantial or injurious effect on the outcome of the proceedings against him. See United States v. Reed, 941 F.3d 1018 (11th Cir. 2019) (noting parties' stipulation to defendant's prior felony conviction, defendant's admission that he was not permitted to have a gun, and defendant's eight year sentence for possessing a firearm, and holding that the omission of the knowledge-of-status element from an indictment and jury instructions for a violation of 922(g) did not amount to an error that affected the defendant's substantial rights or the fairness, integrity, or public reputation of his trial); see also United States v. McLellan, 958 F.3d 1110 (11th Cir. 2020) (analyzing a Rehaif claim under plain error and concluding defendant's rights were not substantially affected by any Rehaif error noting that it would be inconceivable that the defendant did not know of his felon status because he had (1) served approximately 10 years in prison, on and off, for multiple prior felonies, (2) served an almost 8-year long sentence previously, (3) acknowledged that he was sent to prison for 10 years at sentencing, and (4) stated at sentencing that he knew that he was not permitted to possess a firearm because of his felon status).
Although Petitioner cites to Fourth Circuit caselaw, including United States v. Lockhart, United States v. Gary, and United States v. Medley, and argues that his Rehaif error is a reversible error that must be corrected, Petitioner's reliance on these Fourth Circuit cases is misplaced. Petitioner was convicted in the Eleventh Circuit, and therefore, his substantive claims under the savings clause are governed by Eleventh Circuit case law. See Eames v. Jones, 793 F. Supp. 2d 747, 750 (E.D.N.C. 2011) (finding the substantive law of the circuit of conviction should apply to § 2241 proceedings held in a different circuit); Capalbo v. Antonelli, No. 1:19-cv-1946-TMC, 2020 WL 3496641, at *4 (D.S.C. June 29, 2020) (finding petitioner's arguments based on Gary without merit because the court was obligated to apply the substantive law of the sentencing court, which was the Eleventh Circuit in that case). The undersigned recommends Petitioner's habeas petition be dismissed. III. Conclusion and Recommendation
United States v. Lockhart, 947 F.3d 187, 196 (4th Cir. 2020) (en banc) (recognizing that Rehaif abrogated Fourth Circuit caselaw regarding § 922(g) offenses).
United States v. Gary, 954 F.3d 194, 200-08 (4th Cir. 2020) (finding plain error in failing to instruct defendant of the knowledge-of-status element during guilty-plea colloquy).
United States v. Medley, 972 F.3d 399, 406-19 (4th Cir. 2020) (finding plain error in omitting the knowledge-of-status element from the indictment and from the jury instruction in a jury trial).
For the foregoing reasons, the undersigned recommends that the court grant Respondent's Motion for Summary Judgment, ECF No. 21, deny the petition for writ of habeas corpus, and dismiss the petition without prejudice.
IT IS SO RECOMMENDED. December 23, 2020
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge
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
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).