Opinion
C/A No. 6:19-1549-HMH-KFM
06-03-2019
Difankh Asar, Petitioner, v. Warden Antonelli, Respondent.
REPORT OF MAGISTRATE JUDGE
The petitioner, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2241 for habeas relief. 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 Court. For the reasons set forth below, it is recommended that the petitioner's § 2241 petition be dismissed without prejudice and without requiring the respondent to file an answer or return.
The petitioner's § 2241 petition was entered on the docket on May 29, 2019 (doc. 1). The case is in proper form for judicial screening.
BACKGROUND
Petitioner's Conviction and Sentence
On July 26, 2010, the petitioner pled guilty in the United States District Court for the District of South Carolina to Count 1 of an Indictment charging him with the unlawful transport of a firearm in violation of 18 U.S.C. §§ 922(g)(1); 924(a)(2); 924(e). See United States v. Asar, Cr. No. 7:10-429-BHH-1 (D.S.C.). On December 9, 2010, the Honorable G. Ross Anderson sentenced the petitioner to a term of 180 months' imprisonment followed by five (5) years of supervised release. Id. at doc. 56. The sentence was enhanced based upon the Armed Career Criminal Act ("ACCA"). Id. The petitioner appealed, but the Fourth Circuit Court of Appeals affirmed the district court on May 8, 2012. Id. at docs. 59; 81; see United States v. Asar, 480 F. App'x 207 (4th Cir. 2012).
The Court takes judicial notice of the records in the petitioner's criminal case in the District of South Carolina at case number 7:10-cr-429-BHH-1. See Phillips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts "may properly take judicial notice of matters of public record."); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ("We note that 'the most frequent use of judicial notice is in noticing the content of court records.'").
During the pendency of his § 2255 motions—discussed below—the petitioner, on May 23, 2018, filed a § 2241 action (seeking relief via the § 2255 savings clause) in the United States District Court for the Northern District of Alabama, arguing that his sentence was unconstitutional in light of Johnson. See Asar v. United States of America, C/A No. 7:18-789-ACA-JHE (N.D. Ala.). The petition was dismissed because the petitioner did not bring the case into proper form. Id. at doc. 5.
Petitioner's § 2255 Motions
The petitioner has filed three separate § 2255 motions. The first, filed in 2012, argued ineffective assistance of counsel, that the petitioner did not have any predicate offenses for ACCA purposes, and the rule of lenity. See United States v. Asar, C/A No. 7:10-cr-00429-BHH-1, at doc. 83. The petitioner's § 2255 motion was denied on October 10, 2012. Id. at doc. 107, 2012 WL 4809145. The petitioner's appeal of his § 2255 motion was dismissed by the Court of Appeals on April 1, 2013. United States v. Asar, 516 F. App'x 256 (4th Cir. 2013), cert denied 570 U.S. 924 (2013).
On July 22, 2013, the petitioner sought permission from the Court of Appeals to file a second/successive § 2255 motion, which was denied on August 8, 2013. See In re Asar, No. 13-314 (4th Cir. 2013). On March 11, 2016, the petitioner again sought permission from the Court of Appeals to file a second/successive § 2255 motion, which was granted on May 5, 2016, in light of the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), which was held to be retroactive on collateral review by Welch v. United States, 136 S.Ct. 1257 (2016). See In re Asar, No. 16-224 (4th Cir. May 5, 2016). The petitioner filed the authorized § 2255 motion on May 6, 2016. See United States v. Asar, Cr. No. 7:10-429-BHH-1, at doc. 133. On July 19, 2017, the petitioner's motion was denied, finding that his prior convictions still counted as priors for purposes of the ACCA because they fall under the "force clause" of the United States Sentencing Guidelines ("USSG"). Id. at doc. 153. The petitioner appealed, his appeal was dismissed, and the Supreme Court denied certiorari. United States v. Asar, No. 17-6977, 704 F. App'x 280 (4th Cir. 2017) (mem.), cert denied 139 S.Ct. 281 (2018) (mem.).
Then, on June 6, 2018, the petitioner filed a motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. United States v. Asar, Cr. No. 7:10-429-BHH-1, at doc. 164. After the motion was denied, the petitioner filed a motion to amend his Rule 60(b) motion, which was also denied. Id. at docs. 166; 173; 174. The petitioner's appeal of the denial was dismissed on March 1, 2019. United States v. Asar, 755 F. App'x 306 (4th Cir. 2019) (mem.), reh'g and reh'g en banc denied. During this same time, the petitioner unsuccessfully sought a writ of mandamus from the Court of Appeals, arguing that the district court was unduly delaying ruling on his Rule 60(b) motion. See In re Asar, 755 F. App'x 266 (4th Cir. 2019) (mem.).
On March 22, 2019, the petitioner sought permission from the Court of Appeals to file a successive § 2255 motion. See In re Asar, No. 19-165 (4th Cir.). On March 28, 2019, the petition filed a third § 2255 motion, despite his request to file a § 2255 motion that was pending before the Court of Appeals. See United States v. Asar, Cr. No. 7:10-429-BHH-1, at doc. 187. The Court of Appeals denied the petitioner's request on April 11, 2019. In re Asar, No. 19-165. To date, the petitioner's third § 2255 motion—along with a motion to dismiss the petitioner's § 2255 motion—is pending in the United States District Court for the District of South Carolina. See United States v. Asar, Cr. No. 7:10-429-BHH-1.
Petitioner's Present Action
Here, the petitioner seeks habeas relief pursuant to 28 U.S.C. § 2241, claiming that his sentence is unconstitutionally enhanced by the ACCA in light of Johnson. (doc. 1 at 8-10). For his relief, the petitioner requests that this court vacate his current sentence and return his case to the sentencing court for re-sentencing without the ACCA sentencing enhancement (id. at 11).
STANDARD OF REVIEW
The undersigned has reviewed the 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"), Pub. L. No. 104-132, 110 Stat. 1214; and other habeas corpus statutes. As a pro se litigant, the petitioner's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The mandated liberal construction means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. However, 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, 391 (4th Cir. 1990).
DISCUSSION
The petitioner filed this action pursuant to 28 U.S.C. § 2241 (doc. 1). Because the petitioner is incarcerated in the District of South Carolina and he names the warden of FCI Williamsburg as the respondent, his § 2241 petition is properly filed in this Court. Liberally construing the petitioner's allegations, the petitioner seeks to utilize the § 2255 savings clause test in order to attack the validity of his federal sentence in light of Johnson v. United States, 135 S.Ct. 2551 (2015) (made retroactive on collateral review by Welch v. United States, 136 S.Ct. 1257 (2016)) via the present § 2241 action (doc. 1).
Unlike a § 2255 motion, which is filed in the trial and sentencing court, a § 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). "Generally, a § 2241 petition 'attacks the execution of a sentence rather than its validity,' whereas a § 2255 motion 'attacks the legality of detention.'" Rice v. Lamanna, 451 F. Supp. 2d 755, 758 (D.S.C. 2006) (quoting Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)); see United States v. Miller, 871 F.2d 488, 489-90 (4th Cir. 1989) (distinguishing between attacks to the "computation and execution of the sentence rather than the sentence itself"). Thus, "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)). However, § 2255 includes a savings clause, which permits a district court to consider a § 2241 petition challenging the validity of the prisoner's conviction or sentence when § 2255 is "inadequate or ineffective to test the legality of . . . detention." 20 U.S.C. § 2255(e); Jones, 226 F.3d at 333. Accordingly, the petitioner cannot challenge his federal sentence under § 2241, unless he can satisfy the requirements of 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). In other words, as applied here, the petitioner's § 2241 action is barred unless he can demonstrate that the relief available to him under § 2255 is inadequate or ineffective. Although the petitioner does not specifically allege why § 2255 is inadequate or ineffective, he did allege that he was unsuccessful in seeking relief under § 2255 in the sentencing court on the merits on two occasions. Nevertheless, "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).
As noted above, the petitioner was granted permission by the Court of Appeals to file a successive § 2255 motion in light of the Supreme Court's decision in Johnson, 135 S.Ct. 2551, which was made retroactive on collateral review by Welch, 136 S.Ct. 1257.
Recently, the Court of Appeals established a test for evaluating whether a petitioner may meet the savings clause under § 2255 when he contests his sentence:
[Section] 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.United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018) (citations omitted). Thus, for the petitioner to be entitled to relief from his sentence under § 2241, he must satisfy this savings clause test, which is a jurisdictional requirement under § 2255. Id. at 426 (explaining that "the savings clause requirements are jurisdictional"). The court may sua sponte raise subject matter jurisdiction, and the Court of Appeals has held that, if a petitioner cannot meet the savings clause requirements, then the § 2241 petition "must be dismissed for lack of jurisdiction." Rice v. Rivera, 617 F.3d at 807. Accordingly, because the § 2255 savings clause is a jurisdictional requirement, an analysis of whether the petitioner meets the four factor savings clause test created in Wheeler is appropriate for initial review.
In the instant matter, the petitioner cannot meet the savings clause test set forth in Wheeler; thus, the undersigned recommends dismissing the petition without prejudice and without requiring the respondent to file an answer or return. The petitioner, in the present matter, attacks the applicability of the ACCA to his sentence based upon Johnson (made retroactive by Welch) (doc. 1). Liberally construed, the petitioner contends that if he were sentenced post-Johnson/Welch, his prior conviction for pointing a firearm would no longer qualify for purposes of the ACCA, which would reduce the petitioner's sentence (id.).
The petitioner does meet the first Wheeler factor: his sentence was legal at the time of sentencing. However, the petitioner cannot meet the second factor: that "subsequent to [his] direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review." Wheeler, 886 F.3d at 429. The petitioner appealed his sentence on December 9, 2010. Thus, important to the Wheeler analysis in the instant action is the timing of the petitioner's prior § 2255 motions. The petitioner has filed a total of three § 2255 motions: the first and second motions were denied on the merits and the third motion remains pending before the Honorable Bruce H. Hendricks. See United States v. Asar, C/A No. 7:10-cr-00429-BHH-1, at docs. 83; 107; 133; 153; 187. The undersigned finds that the petitioner's second § 2255 motion, filed on May 6, 2016, acts as his "first" because it was decided on the merits after the petitioner received permission to file a successive petition from the Court of Appeals. See In re Asar, C/A No. 16-224 (4th Cir. May 5, 2016). In denying the petitioner's May 6, 2016, motion, the court noted that the plaintiff's prior convictions for pointing a firearm qualified under the ACCA as crimes of violence under the force clause, even in light of the Supreme Court's holding in Johnson with respect to the residual clause of the ACCA. See United States v. Asar, Cr. No. 7:10-429-BHH-1, at doc. 153.
Johnson, as indicated above, was decided on June 26, 2015, and was recognized as retroactive on collateral review in Welch, which was decided on April 18, 2016. See Welch, 135 S.Ct. 1257; Johnson, 135 S.Ct. 2551. As such, the petitioner cannot meet the second prong of Wheeler, because he has not shown that subsequent to his direct appeal (2010) and first § 2255 motion (2016) the substantive law changed and was deemed to apply retroactively on collateral review. Further, the claims in this action are nearly identical to those in the petitioner's May 6, 2016, § 2255 motion—that he should be re-sentenced in light of Johnson. Indeed, the Court of Appeals specifically allowed the petitioner the opportunity to file a successive § 2255 petition in light of the Supreme Court's decisions in Johnson and Welch. See In re Asar, No. 16-224 (4th Cir. May 5, 2016). Thus, here the "petitioner is trying to take yet another 'bite at the apple.' However, by litigating [two] § 2255 petition[s] on the merits, the petitioner had his one 'bite at the apple.'" White v. Rivera, C/A No. 3:08-3681-PMD-JRM, 2009 WL 1456712, at *8 (D.S.C. May 21, 2009) (citing In re Goddard, 170 F.3d 435 (4th Cir. 1999) (noting that normally a federal criminal defendant, after a conviction, may pursue a direct appeal and thereafter "take 'one further bite at the apple' in a § 2255 motion")). Accordingly, the petitioner has failed to satisfy the elements of the Wheeler test to invoke the savings clause of § 2255 and challenge his sentence. Accordingly, the petitioner's § 2241 petition should be dismissed because the savings clause contained in § 2255 does not permit him to bring this § 2241 action.
RECOMMENDATION
Accordingly, it is recommended that the petitioner's § 2241 petition be dismissed without requiring the respondent to file a return. The petitioner's attention is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge June 3, 2019
Greenville, South Carolina
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
300 East Washington Street, Room 239
Greenville, South Carolina 29601
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).