Opinion
C/A No.: 5:19-815-RMG-KDW
03-29-2019
Carl Anthony Tucker, Petitioner, v. Warden Vareen, Respondent.
REPORT AND RECOMMENDATION
Carl Anthony Tucker ("Petitioner"), proceeding pro se, is an inmate incarcerated at the Federal Correctional Institution in Edgefield, South Carolina, in the custody of the Bureau of Prisons. He filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the district judge. For the reasons that follow, the undersigned recommends the district judge dismiss the Petition in this case without requiring Respondent to file an answer. I. Factual and Procedural Background
On February 15, 2005, Petitioner entered a guilty plea to bank robbery, use of a firearm during the commission of a crime of violence, and felon in possession of a firearm. United States v. Tucker, C/A No. 3:03-cr-88-PLR-CCS-2 (E.D. Tenn. July 5, 2005) ("Tucker I"), ECF No. 108. On July 5, 2005, the district court sentenced Petitioner to 262 months' imprisonment. Id., ECF No. 121. Petitioner did not file an appeal. ECF No. 1 at 3-4. Petitioner filed a pro se motion to vacate judgment under 28 U.S.C. § 2255 on July 21, 2006, which the district court denied on August 9, 2006. Tucker I, ECF Nos. 125, 127. Petitioner filed two additional § 2255 motions on October 24, 2008, and January 25, 2016, which the district court transferred to the Sixth Circuit Court of Appeals as second or successive § 2255 motions. Id., ECF Nos. 136, 138, 168, 169, 170. On October 14, 2016, the Sixth Circuit issued an order authorizing Petitioner to file a successive § 2255 petition. Id., ECF No. 172. Petitioner refiled his § 2255 petition and on November 1, 2016, the district court dismissed the petition. Id., ECF No. 175. Petitioner appealed the dismissal and on June 5, 2017, the Sixth Circuit dismissed Petitioner's appeal. Id., ECF Nos. 176, 181.
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 petition on March 18, 2019, arguing his sentence is excessive based on his minor role in the crime and the holding in United States v. Simms. Pet. 8-9, ECF No. 1. Petitioner seeks resentencing. Id. at 9-10. II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of this petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, and other habeas corpus statutes. Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
B. Analysis
"[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 as follows:
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 court lack jurisdiction over § 2241 petition outside savings clause).
Recently, the Fourth Circuit established an updated savings clause test under § 2255 for a petitioner who contests his sentence. U.S. v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018). The court held 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.Id. at 429.
The undersigned finds this court lacks jurisdiction to consider Petitioner's § 2241 petition as he cannot show § 2255 is inadequate to test the legality of his sentence. The undersigned finds Petitioner is not able to satisfy the second prong of the Wheeler test. As an initial matter, Petitioner has failed to identify a change in settled substantive law that entitles him to a lesser sentence based on his alleged minor role in the bank robbery. In support of his claim that his crimes are no longer considered crimes of violence, Petitioner cites United States v. Simms, 914 F.3d 229 (4th Cir. 2019). ECF No. 1 at 9. Petitioner, however, was convicted in the Sixth Circuit and therefore cannot benefit from a change in the substantive law of the Fourth Circuit. See Van Hoorelbeke v. United States, No. CA 0-08-3869-CMC-PJG, 2010 WL 146289, at *4 (D.S.C. Jan. 8, 2010) (citing Chaney v. O'Brien, 2007 WL 1189641 (W.D. Va. Apr. 23, 2007) (holding that in applying the second prong of the Jones test, "the substantive law relevant to a § 2241 petition is that of the circuit in which the petitioner was convicted")); 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). Because Petitioner is unable to meet the § 2255 savings clause, this court lacks jurisdiction to consider the Petition in this case. III. Conclusion and Recommendation
In Simms, the Fourth Circuit concluded that the Residual Clause of 18 U.S.C. § 924(c) is unconstitutionally vague. Simms, 914 F.3d at 233.
Accordingly, the undersigned recommends the court dismiss the Petition in the above-captioned case without prejudice and without requiring Respondent to file a return.
IT IS SO RECOMMENDED. March 29, 2019
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).