Opinion
C. A. 4:20-2457-TLW-TER
04-02-2021
LINWOOD CLIFTON WOOD, Petitioner, v. WARDEN, FCI EDGEFIELD Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III, United States Magistrate Judge
The Petitioner Linwood Wood, (“Petitioner/Wood”), appearing pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 on June 29, 2020. On December 3, 2020, the Respondent filed a motion for summary judgment. (ECF No. 27). Respondent also filed a motion to allow the Government to file separately and under Seal Exhibit 1 (Petitioner's Presentence Report from the Eastern District of North Carolina) to the Warden's motion for summary judgment being filed in this case. (ECF No. 27). This motion to seal the PSR was granted. (ECF No. 31). The undersigned issued an order filed December 4, 2020, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), advising the Petitioner of the motion and the possible consequences/ if he failed to respond adequately. (ECF No. 29). Wood filed a response in opposition on December 16, 2020, and filed additional response on December 28, 2020. (ECF Nos. 33 and 35).
This habeas corpus case was automatically referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02, DSC. Because this is a dispositive motion, this report and recommendation is entered for review by the district judge.
STANDARD FOR SUMMARY JUDGMENT
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through “depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any.” Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
FACTUAL AND PROCEDURAL BACKGROUND
Wood is a federal inmate currently incarcerated at the Federal Correctional Institution in Edgefield, South Carolina. Wood filed this action pursuant to 28 U.S.C. § 2241 seeking to vacate his conviction for possession of a firearm by a felon in violation of 18 U.S.C. §922(g)(1). Wood asserts that his conviction under 18 U.S.C. §922(g) is invalid based on the Supreme Court's decision in Rehaif v. United States, 139 S.Ct. 2191, 2194 (2019).
A grand jury in the Eastern District of North Carolina returned an indictment charging Wood with (1) conspiracy to distribute and to possess with intent to distribute 500 grams or more of cocaine and 28 grams or more of cocaine base in violation of 21 U.S.C. §§ 841 and 846 (Count One); (2) possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) (Count Two); (3) distribution of a quantity of cocaine base in violation of 21 U.S.C. § 841(a)(1) (Count Three); and (4) distribution of 28 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) (Count Four).
Wood entered a plea agreement on February 6, 2012, with the government and pleaded guilty to drug conspiracy and the 922(g)(1) violation on February 6, 2012. During the hearing, the district court explained the 922(g)(1) charge to Wood and the elements as set forth in the plea agreement. Wood, under oath, stated that he understood the charge as explained by the court. After explaining the 922(g)(1) charge again later in the hearing, the district court asked Wood how he wished to plea and Wood responded “Guilty.” The AUSA proffered a factual basis for the 922(g)(1) charge stating that Wood and his wife sold several firearms to a confidential informant; the firearms were manufactured outside of the state of North Carolina, and therefore, affected interstate commerce. Wood had previously been convicted of a felony, the sale of cocaine. See Respondent's memorandum and Plea Transcript in United States v. Linwood Wood, 2:11-CR-25 (E.D. N.C. ), Doc. No. 40.
On June 15, 2012, Wood was sentenced to 228 months in prison, consisting of a sentence of 228 months on his drug conspiracy charge and a concurrent sentence of 120 months for the felon in possession count. When imposing Petitioner's sentence on June 15, 2012, the sentencing district judge noted his extensive history stating “. . . [W]e have a series of various offenses including assault by pointing a gun, assault on a female, larceny, carrying a concealed weapon, felony possession of cocaine, sale and delivery of cocaine, possessing with intent to see and deliver cocaine, possession with intent to sell and deliver cocaine, all over the course of a long period of time.” See Respondent's memorandum and Sentencing Transcript in United States v. Linwood Wood, 2:11-CR-25 (E.D. N.C. ), Doc. No. 41. Respondent notes that pursuant to the PSR, Petitioner was sentenced to several crimes punishable for more than one year imprisonment, was sentenced to more than one year imprisonment for at least two of the crimes, and served more than one year imprisonment on two different occasions.
The PSR was filed under seal.
Petitioner filed an appeal with counsel filing an Anders brief. The Fourth Circuit rejected the appeal and affirmed his sentence. United States v. Wood, 510 Fed.Appx. 257 (4th Cir 2013). Petitioner sought a writ of certiorari which the Supreme Court denied in Wood v. United States, 569 U.S. 1025 (2013).
Respondent states that Petitioner filed a §2255 motion asserting two claims: (1) that in light of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011)(en banc), the court improperly sentenced him as a career offender under the Guidelines and as an armed career criminal under the Armed Career Criminal Act, 18 U.S.C. 924(e); and, (2) that his sentence violated the Fair Sentencing Act. (ECF No. 41 at 405, 47-1 at 307). The district court granted the government's motion to dismiss and denied a certificate of appealability. The Fourth Circuit denied a certificate of appealability and dismissed the appeal. United States v. Wood, 600 Fed.Appx. 144 (4th Cir. 2015).
DISCUSSION
Law
A petition for habeas corpus relief brought pursuant to 28 U.S.C. § 2255 is filed in the sentencing court and a petition brought pursuant to 28 U.S.C. § 2241 petition is filed in the district where the petitioner is incarcerated. See 28 U.S.C. § 2241(a); In re Jones, 226 F.3d 328, 332 (4th Cir. 2000). Based on Fourth Circuit law, “it 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)). 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 United States v. Wheeler, 886 F.3d 415, 426 (4th Cir. 2018); Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001). In other words, as applied here, Petitioner's § 2241 action is barred unless he can demonstrate that the relief available to him under § 2255 is inadequate or ineffective. Petitioner was unsuccessful in seeking relief under § 2255 in his petitions in the sentencing court. However, “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.” See In re Vial, 115 F.3d at 1194 n.5 (citations omitted).
The Fourth Circuit has found § 2255 inadequate and ineffective to test the legality of a conviction. In In re Jones, 226 F.3d 328 (4th Cir. 2000), the court held that a petitioner must show:
(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.Id. at 333-34.
This test was formulated expressly to provide a remedy for the “fundamental defect presented by a situation in which an individual is incarcerated for conduct that is not criminal but, through no fault of his own, he has no source of redress.” Id. at 333 n.3. If the petitioner cannot satisfy the savings clause test, the court lacks jurisdiction to consider the petition. United States v. Wheeler, 886 F.3d at 423.
See also Wheeler, 886 F.3d at 429 (providing a four-part test to determine whether section §2255 is inadequate and ineffective to test the legality of a sentence, including requiring that “settled substantive law changed and was deemed to apply retroactively on collateral review”).
Respondent's Motion for Summary Judgment
Respondent contends that Petitioner meets the savings clause requirements under In re Jones. Respondent asserts that Petitioner meets the first prong of In re Jones that requires a change in the law after the direct appeal and first §2255 motion because Rehaif was decided after both Wood's appeal and initial §2255 motion were decided.
Respondent asserts that Petitioner meets the second prong of In re Jones arguing that the law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal. Respondent argues that Wood meets this second requirement in that “the conduct for which he was convicted is still illegal and the conduct for which he was convicted is not still deemed to be criminal after Rehaif.” (ECF No. 27-1 at 8). Respondent asserts that the “. . . then-controlling Fourth circuit law, the indictment did not specifically allege, and the plea colloquy did not include an admission, that Wood knew of his status as a felon at the time he possessed a firearm.” (Id.). Respondent contends that the Fourth Circuit in Rehaif made clear that if a defendant who has previously been convicted of a crime punishable by more than one year in prison knowingly possessed a firearm or ammunition in or affecting interstate commerce, but did not know of his status at the time of possession, his conduct cannot be deemed criminal. After Petitioner's appeal and §2255 motion were concluded, Respondent argues that Rehaif changed the substantive law regarding the elements required to prove a violation of §922(g). Under Rehaif, the jury was not instructed on, and the Government did not prove, a necessary element of the charge: knowledge of his felony status. Thus, Respondent argues that the conduct for which Wood was convicted is no longer deemed criminal.
The undersigned agrees. In United States v. Gary, 954 F.3d 194, 200 (4th Cir. 2020), cert. granted, No. 20-444, 2021 WL 77245 (U.S. Jan. 8, 2021), the Fourth Circuit, applying plain error review, concluded the trial court erred in failing to instruct the defendant of the knowledge-of-status element during the guilty-plea colloquy, as required by § 922(g) and Rehaif. Gary, 954 F.3d at 200-08. Gary is inapplicable to the instant case because Gary was a direct-review case, which did not address the savings-clause requirements that are at issue in this collateral-review case. Specifically, Gary did not address how courts determine whether the conduct of which a petitioner was convicted is no longer deemed to be criminal. See e.g., Sadler v. Bragg, No. 0:20-cv-0665-JFA-PJG, 2020 WL 6110989, at *1, 3 (D.S.C. Oct. 16, 2020) (affirming the magistrate judge's conclusion “that the Fourth Circuit's holding in Gary does not affect the court's finding that Petitioner cannot meet the savings clause”). Respondent asserts that “[t]he Fourth Circuit's recent holding in United States v. Gary, 954 F.3d 194, 200 (4th Cir. 2020), is limited to Rehaif claims on direct appeal. In Gary, the court held on plain-error review that a Rehaif error in a plea colloquy is structural and therefore per se affects a defendant's substantial rights. 954 F.3d at 200. The opinion does not address how courts should evaluate Rehaif claims on collateral review. “ (ECF No. 27-1 at 16-17 of 20).
Petitioner attempts to argue that to convict, the government had to show that he knew he possessed a firearm and that he knew he had the relevant status when he possessed it. Further, Petitioner argues that he would not know that the selling of a firearm puts him in the relevant category for the purposes of 18 U.S.C. §922(g).
In evaluating substantive claims under the savings clause, the court is to look to the substantive law of the circuit where a defendant was convicted. Hahn v. Moseley, 931 F.3d 295, 301 (4th Cir. 2019)(internal cites omitted). Therefore, since Petitioner was convicted in this court, the undersigned has considered the substantive law of the Fourth Circuit. Although Respondent argues otherwise, Petitioner cannot satisfy the second prong of the Jones test, as has been held by this court multiple times, in that “Rehaif did not create a substantive change in the law but simply clarified the elements that the Government would have had to prove at trial had Petitioner exercised his right to a trial.” Sadler v. Bragg, C/A No. 0:20-0665-JFA-PJG, 2020 WL 6110989, at *3-4 (D.S.C. Oct. 16, 2020) (citing Gary, 954 F.3d 194) (applying Fourth Circuit law and collecting cases); see also, e.g., Hughes v. Mackelburg, C/A No. 8:19-03390-HMH-JDA, 2020 WL 1429351 at *2 (D.S.C. Mar. 24, 2020) (rejecting a §2241 petition based on Rehaif, noting that the petitioner, who pleaded guilty, was required to show “the conduct of which [he] was convicted be ‘deemed not to be criminal'”) (quoting In re Jones, 226 F.3d at 334). Petitioner cannot show as a matter of law that Rehaif rendered his conduct not criminal. Petitioner's illegal conduct remains a source of criminal liability. See Rhodes v. Dobbs, C/A No. 1:20-1725-JFA-SVH, report and recommendation adopted, C/A No. 1:20-1725-JFA, 2021 WL 805503 (D.S.C. March 3, 2021); Thompson v. Phelps, C/A No. 8:20-02716-RMG-JDA, 2020 WL 7344099, at *5 (D.S.C. Oct. 21, 2020), report and recommendation adopted, C/A No. 8:20-2716-RMG, 2020 WL 7335899 (D.S.C. Dec. 14, 2020); see also Sadler, 2020 WL 6110989, at *3 (rejecting argument that “the decision in Gary evidences that Rehaif was a substantive change in the law which renders Petitioner's conduct not criminal”). Rehaif only clarified what the government needed to prove to secure a conviction under 18 U.S.C. §922(g), and possession of a firearm and ammunition by a felon remains illegal. See Hoffman v. Breckon, C/A No.; 7:18-cv-00265, 2020 WL 929589, at *9 (W.D. Va. Feb. 26, 2020) (collecting cases that found Rehaif did not change substantive law because the conduct for which the petitioners were convicted “is still illegal”), appeal docketed, No. 20-6322 (4th Cir. Mar. 6, 2020).
Respondent argues that the second Jones prong is met because the conduct for which Wood was convicted is not still deemed to be criminal after Rehaif. However, Respondent acknowledges that judges in this District have held otherwise on numerous occasions. Specifically, Respondent cites to a string of cases in which the judges in this District have held that § 2241 petitions raising Rehaif claims do not meet the second part of the second prong of the Jones test. (ECF No. 27-1 at 7 n. 5). Respondent does not agree with those decisions but does not cite to any precedential support for his arguments. See Rainner v. Warden, FCI Bennettsville, 2020 WL 5702103, at *3 (D.S.C. Sept. 24, 2020).
See also Rice v. Antonelli, 2021 WL 827141 (N.D. Va. Mar. 4, 2021); Hudson v. Boggs, C/A No. 0:20-207-MGL-PJG (June 4, 2020); Mabe v. Dobbs, C/A No. 20-0083-TMC-TER (Mar. 24, 2020).
Based on the criminal history before the court, Petitioner had prior felony convictions for which he received imprisonment for more than a year. 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). On June 21, 2019, the Supreme Court decided Rehaif, holding “that in a prosecution under 18 U.S.C. § 922(g) ... the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.” 139 S.Ct. at 2200. The Petitioner in Rehaif had been found guilty after a jury trial. Id. at 2194.
The court takes judicial notice of the records in Petitioner's criminal cases. Courts “may properly take judicial notice of matters of public record.” Phillips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009). “We note that the most frequent use of judicial notice . . . is in noticing the content of court records.” Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (internal quotations and citation omitted).
The Rehaif case has also been addressed in contexts other than § 2241, such as on direct appeal and on § 2255 motions. Additionally, as pointed out above, the defendant in Rehaif was convicted after a jury trial and, in this case, Wood pleaded guilty.
As deduced from the plea colloquy, Wood's conduct is still criminal, even after Rehaif. At the time of the plea, Wood admitted to having been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowing possess, in and affecting commerce, several firearms in violation of possession of a firearm by a convicted felon in violation of Title 18 United States Code, Sections 922(g)(1) and 924(e). See Plea Transcript in United States v. Linwood Wood, 2:11-CR-25 (E.D. N.C. ), Doc. No. 40 at 17-18 of 32. Further, Petitioner stated that he understood what he was pleading to and wanted to plead guilty after the court went over all the potential sentences and the rights he would be waiving by pleading guilty. Id. at 19-28. The court went over the plea agreement during the plea hearing and Petitioner stated that it was the entire agreement and he understood each term of the agreement. Id. Because Petitioner pleaded guilty and acknowledged that the elements for a § 922(g) charge were met and that the facts necessary for conviction were present, he is unable to show that his guilty plea resulted in a conviction for conduct that is not criminal. Additionally, in his response, Petitioner stated that he had been “convicted of several state drug offenses and received sentences for more than one year imprisonment.” (ECF No. 35 at 1).
See e.g., Pratt v. Warden, 2020 WL 2477963 (April 17, 2020) report and recommendation adopted, 2020 WL 2475807 (N. D. W.Va. May 13, 2020).
The court in Asar v. Travis, 2020 WL 1099391, at *5 (D.S.C. Feb. 10, 2020), report and recommendation adopted, 2020 WL 1081839 (D.S.C. Mar. 6, 2020), vacated (Mar. 16, 2020), and report and recommendation adopted, 2020 WL 3843638 (D.S.C. July 8, 2020) found that:
. . . the petitioner's allegations do not satisfy the In re Jones requirements because there are no allegations that the conduct for which the petitioner was convicted is no longer criminal due to a change in the law. Here, the crime to which the petitioner pleaded guilty, being a felon in possession of a weapon, remains a criminal offense. The petitioner argues, as noted, that his conviction is no longer valid based upon Rehaif. 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. The requirement set forth in Rehaif, however, was in the context of a jury trial. Id. at 2195. In the instant case, the Petitioner pleaded guilty to being a felon in possession of a weapon-thus admitting all the facts essential to sustain his conviction under § 922(g). See United States v. Broce, 488 U.S. 563, 569 (1989) (noting that a “plea of guilty and the ensuing conviction comprehend all the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence”); United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993) (noting that a “knowing, voluntary, and intelligent plea to an offense conclusively establishes the elements of the offense and the material facts necessary to support the conviction and waives non-jurisdictional defects, including those to an indictment). Accordingly, the petitioner cannot challenge the validity of his § 922(g) conviction under § 2241.Id. at *5.
Because Petitioner cannot meet the requirements of the savings clause pursuant to In re Jones, the court finds this matter should be dismissed for lack of subject matter jurisdiction. See United States v. Wheeler, 886 F.3d 415, 426 (4th Cir. 2018) (the savings clause requirements are jurisdictional and may not be waived). Thus, it is recommended that the petition be dismissed without prejudice for lack of jurisdiction.
CONCLUSION
Based on the above reasoning, it is recommended that this action be dismissed without prejudice for lack of jurisdiction and deny Respondent's motion for summary judgment (ECF No. 27) as moot.
See Platts v. O'Brien, 691 Fed.Appx. 774 (4th Cir. June 22, 2017) (citing S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) (“A dismissal for ... [a] defect in subject matter jurisdiction[ ] must be one without prejudice, because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits.”).
Petitioner's attention is directed to the important notice on the next page