Opinion
C/A No. 0:19-1759-DCC-PJG
07-22-2019
Larry Michael Slusser, Petitioner, v. Acting Warden Vereen, Respondent.
REPORT AND RECOMMENDATION
The petitioner, Larry Michael Slusser, a self-represented prisoner, filed a petition for 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 Civil Rule 73.02(B)(2)(c) (D.S.C.). Having reviewed the Petition in accordance with applicable law, the court concludes that it should be summarily dismissed for lack of jurisdiction.
I. Factual and Procedural Background
Petitioner is a federal prisoner housed in the Federal Correctional Institution in Edgefield, South Carolina. In 2011, Petitioner was sentenced in the United States District Court for the Eastern District of Tennessee to 180 months' imprisonment on a charge of felon in possession of a firearm. (Pet., ECF No. 1-1 at 1-2.) Petitioner's sentence was enhanced under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924, based on three prior Tennessee state court convictions, including a 1999 conviction for aggravated assault. (Id. at 2.) Petitioner filed a motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255 in 2012 that was denied. (Id. at 2-3.)
In 2016, the United States Court of Appeals for the Sixth Circuit authorized Petitioner to file a second § 2255 motion, based on Petitioner's argument that the Supreme Court's decision in Johnson invalidated the use of his 1999 Tennessee conviction for aggravated assault to enhance his sentence under the ACCA. (Id. at 3.) However, the Eastern District of Tennessee found that at least three of Petitioner's other prior convictions qualified as predicate offenses under the ACCA independent of the residual clause and denied relief. (Id. at 4.) The Sixth Circuit refused to review the merits of the district court's decision, finding that Petitioner waived his right to appeal. (Id. at 8.)
Johnson v. United States, 135 S. Ct. 2551 (2015) (holding the residual clause defining "crime of violence" in the ACCA is unconstitutionally vague under the Due Process Clause); see also Welch v. United States, 136 S. Ct. 1257 (2016) (holding that the rule in Johnson applies retroactively to defendants sentence under the residual clause).
See Slusser v. United States, No. 3:16-CV-531-TAV, 2016 WL 6892757 (E.D. Tenn. Nov. 22, 2016); aff'd 895 F.3d 437 (6th Cir. 2018); cert denied 139 S. Ct. 1291 (Mar. 4, 2019).
Petitioner argues now that, pursuant to United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018), this court should review Petitioner's argument that he is entitled to resentencing because his 1999 aggravated assault conviction no longer qualifies as a predicate offense under the ACCA. Notably, Petitioner concedes that the Eastern District of Tennessee heard this issue pursuant to the gatekeeping provisions of § 2255(h)(2), but he contends that because the Sixth Circuit dismissed his appeal on a procedural issue rather than the merits of his claim, this court should now address this issue pursuant to § 2241and Wheeler.
II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in this case pursuant to the Rules Governing § 2254 Cases, 28 U.S.C. § 2254; the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214; 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) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
This court is required to liberally construe pro se pleadings, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, the requirement of liberal construction does not mean that the court can 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 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for "all civil actions").
B. Analysis
A petitioner cannot challenge his federal conviction and sentence through § 2241 unless he can show under the "savings clause" of § 2255(e) that a § 2255 motion is "inadequate or ineffective to test the legality of his detention." See 28 U.S.C. § 2255(e); see also Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (providing that if a federal prisoner brings a § 2241 petition that does not fall within the scope of the savings clause, the district court must dismiss the unauthorized habeas petition for lack of jurisdiction). The United States Court of Appeals for 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 sentence:
(1) [A]t 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.Wheeler, 886 F.3d at 429.
Here, Petitioner cannot meet the third element of the test in Wheeler—that he is unable to meet the gatekeeping provisions of § 2255(h)(2) for second or successive motions. The Eastern District of Tennessee considered the merits of Petitioner's claim and denied relief. As Petitioner concedes, he met the gatekeeping provisions of § 2255(h)(2). Petitioner argues that the Sixth Circuit's dismissal of his appeal on a procedural issue, rather than the merits, shows that § 2255 was inadequate to test the legality of his detention. But, the mere fact that Petitioner's arguments were rejected in his § 2255 motion does not make a § 2255 motion an inadequate or ineffective remedy. See In re Jones, 226 F.3d 328, 333 (4th Cir. 2000) ("It is beyond question that § 2255 is not inadequate or ineffective merely because an individual is unable to obtain relief under that provision."). This is true even where the bar to relief is procedural, rather than on the merits. See Williams v. Oliver, 571 F. App'x 721, 724 (10th Cir. 2014) (finding that petitioner's waiver of his right to challenge his plea agreement did not render the § 2255 motion inadequate or ineffective); Murrah v. Rivera, Civil Action No. 9:08-3172-SB, 2009 WL 252095, at *1 (D.S.C. Feb. 2, 2009) ("The fact that the Petitioner waived, in part, his right to appeal and collaterally attack his sentence does not render § 2255 inadequate or ineffective."). Therefore, this case should be dismissed because this court lacks jurisdiction over the Petition. See Wheeler, 886 F.3d at 426 (holding that the failure to meet the requirements of the savings clause is a jurisdictional defect that may not be waived).
III. Conclusion
Accordingly, the court recommends that the Petition in the above-captioned case be dismissed without prejudice and without requiring the respondent to file a return. July 22, 2019
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' attention is directed to the important notice on the next page.
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).