Opinion
C. A. 5:20-4473-MGL-KDW
01-09-2022
David Johnson, Petitioner, v. Warden Phelps, Respondent.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge.
David Johnson (“Petitioner”), proceeding pro se, filed this petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner is a federal inmate incarcerated at Federal Correctional Institution Edgefield in the custody of the Federal Bureau of Prisons. 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 to Dismiss. ECF No. 34. 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. 35. On May 28, 2021, the court granted Petitioner an extension to respond to Respondent's Motion, and Petitioner filed a response on July 6, 2021. ECF Nos. 39, 41.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that the court grant Respondent's Motion to Dismiss.
I. Factual and Procedural Background
On January 26, 2007, a jury found Petitioner guilty of conspiracy to distribute cocaine and cocaine base. See United States v. Johnson, No. 5:06-cr-00029-JA-PRL-3 (M.D. Fla. June 21, 2007) (“Johnson”), ECF NO. 283. The court sentenced Petitioner to life imprisonment. Id. at ECF Nos. 383, 410, 436. Petitioner filed an appeal challenging his conviction and sentence, and the Eleventh Circuit Court of Appeals (“Eleventh Circuit”) affirmed the judgment on March 8, 2010. Id. at ECF Nos. 414, 506. On January 27, 2012, Petitioner filed a motion to vacate judgment under 28 U.S.C. § 2255 that the district court denied on April 9, 2012. Id. at ECF Nos. 570, 580. Petitioner filed a second § 2255 motion on November 28, 2016, which the district court dismissed as successive on December 8, 2016. Id. at ECF Nos. 627, 628. Petitioner filed an application for leave to file a second or successive motion to vacate pursuant to § 2255 which the Eleventh Circuit denied on May 15, 2020. Id. at ECF No. 681.
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.”).
Petitioner filed the instant habeas petition seeking immediate release arguing his prior Florida offense was not punishable by more than one year and therefore was illegally used to sentence him to a life sentence. ECF No. 1.
II. Discussion
A. Standard on Motion to Dismiss
Dismissal is appropriate under Fed.R.Civ.P. 12(b)(1) where the court lacks subject-matter jurisdiction. A motion to dismiss under Rule 12(b)(1) examines whether a complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Indeed, the presence of a few conclusory legal terms does not insulate a complaint from dismissal when the facts alleged in the complaint cannot support the legal conclusion. Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
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 district 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. Merriweather v. Reynolds, 586 F.Supp.2d 548, 554 (D.S.C. 2008). The mandated liberal construction afforded to pro se pleadings means that 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 that 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).
In evaluating Petitioner's habeas grounds and arguments, the undersigned considered the cases Petitioner attached to his Motion for the Court to take Judicial Notice of Adjudicative Facts. See ECF Nos. 29-1 and 29-2.
In 2007, a defendant, who had two or more prior convictions for a felony drug offense, and was subsequently convicted of distribution of five kilograms or more of cocaine or fifty grams or more of cocaine base, was subject to a mandatory term of life imprisonment without release. 21 U.S.C. § 841(b)(1)(A) (2006). Felony drug offense is defined as
an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana.21 U.S.C. § 802(44) (2006). Following Petitioner's conviction of conspiracy to distribute cocaine and cocaine base in the amount of 5 mg cocaine and 50 mg cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1), the court determined Petitioner had a 1998 Alabama felony conviction for unlawful possession of a controlled substance and a 1996 Florida felony conviction for possession of cocaine. See Johnson, ECF No. 436 at 48-51. The court used these two convictions to sentence Petitioner to life imprisonment pursuant to 21 U.S.C. §841(b)(1)(A). Id.
Petitioner cites to United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) and argues that the court erroneously imposed on him a mandatory life sentence. ECF No. 1-5 at 6-7. Petitioner argues his 1996 Florida conviction for possession of cocaine, in violation of Fla. Stat. 893.13(1)(A)(1), was not punishable by more than one year, and therefore was illegally used to enhance his sentence under 21 U.S.C. § 841(a). ECF No. 1-5 at 6-7. In Simmons, the Fourth Circuit found that a district court may no longer look to a hypothetical defendant with the worst possible criminal history, but may only consider the maximum possible sentence that a particular defendant could have received. Petitioner argues that under Simmons he meets the first and second prongs of the Wheeler test. Id. at 6-7.
Respondent seeks dismissal of the instant petition contending Petitioner's claims are not cognizable under § 2241. ECF No. 34-1. Respondent argues Eleventh Circuit case law controls whether Petitioner's Florida's conviction was improperly counted as a sentence enhancing predicate. Id. at 8. Respondent cites to Eleventh circuit caselaw McCarthy v. United States, 135 F.3d 754 (11th Cir. 1998) and United States v. Smith, 775 F.3d 1262 (11th Cir. 2014), and argues that under the holdings in these cases the maximum term of imprisonment for a conviction under Florida Statue § 893.13(1)(a) is determined by the statute and not the defendant's individual sentence guidelines. Id. at 8-9. Respondent contends the McCarthy and Smith courts determined the maximum term of imprisonment under Florida Statue § 893.13(1)(a) was “at least ten years of imprisonment.” Id. at 9. Respondent argues Petitioner has failed to identify any Eleventh Circuit precedent that holds that the “statutory maximum term of imprisonment is determined by the Florida guidelines range.” Id.
In response, Petitioner cites to the holdings in Simmons, 649 F.3d 237 and Williams v. United States, 2016 U.S. District LEXIS 157834 (4th Cir 2016). ECF No. 41 at 2-4. Petitioner contends this court may appropriately rely on the holdings in these cases to determine that his prior Florida conviction for possession of cocaine was not punishable by more than a year and a day. Id. Petitioner therefore argues his Florida drug conviction was improperly used as a sentencing predicate to sentence him to life imprisonment. Id. Petitioner notes 21 U.S.C. § 841(a) does not allow the imposition of a life sentence without at least two valid prior convictions to trigger the enhancement. Id. at 3. Petitioner also references United States v. Bushert, 997 F.2d 1343 (11th Cir. 1983) and argues the courts do not have the authority to impose a sentence beyond the maximum provided by law. Id. at 2. In further support of his claim that his life sentence was erroneously imposed, Petitioner cites to Moncrieffe v. Holder, 569 U.S. 184 (2013), Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), United States v. Vonn, 535 U.S. 55 (2002), Chapman v. United States, 500 U.S. 463 (1991), United States v. Newbold, 791 F.3d 455 (4th Cir. 2015), United States v. Escobar-Lopez, 609 F. App'x. 150 (4th Cir. 2015), Albo v. United States, 498 Fed.Appx. 490 (6th Cir. 2012), and Plasencia v. Secretary, Florida Department of Corrections, 606 Fed.Appx. 511 (11th Cir. 2015). Id. at 4-8.
“[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 lacked 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 the court lacks jurisdiction to consider Petitioner's § 2241 petition, as he cannot show that § 2255 is inadequate to test the legality of his sentence. Addressing the second prong of Wheeler, the undersigned finds Petitioner's reliance on Simmons, Williams, Newbold, Escobar-Lopez, and Albo, cases from the Fourth and Sixth Circuits, is misplaced. The substantive law change that causes Petitioner's sentence to be unlawful must arise from the United States Supreme Court or the Eleventh Circuit, which is the circuit in which Petitioner was convicted. 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). Secondly, Chapman, Bushert, and Vonn were decided before Petitioner was convicted and sentenced, therefore these cases cannot establish a change in settled law subsequent to Petitioner's appeal and § 2255 motion. Finally, although Plasencia is an Eleventh Circuit case, and Moncrieffe and Carachuri-Rosendo are both Supreme Court decisions, none of these decisions address whether a conviction under Florida statute § 893.13(1)(A)(1) can be used to enhance a sentence under 21 U.S.C. §§ 841 (a)(1). The Plascencia decision addressed a district court's denial of a § 2254 habeas petition where the petitioner challenged the state court's 100-month upward departure on his sentence following a conviction for second degree murder. In Moncrieffe, the Court held an alien's state conviction for possession of marijuana with intent to distribute was not an aggravated felony under the Immigration and Nationality Act. In Carachuri-Rosendo, the Court held a defendant's second Texas offense of simple drug possession was not an “aggravated felony, ” so as to preclude cancellation of removal. Because Petitioner is unable to meet the § 2255 savings clause, this court lacks jurisdiction to consider the petition in this case. The undersigned recommends Respondent's motion to dismiss be granted.
Plasencia v. Secretary, Florida Department of Corrections, 606 Fed. App'x 511 (11th Cir. 2015).
Moncrieffe v. Holder, 569 U.S. 184 (2013).
Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010).
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends that the court grant Respondent's Motion to Dismiss, ECF No. 34, deny the petition for writ of habeas corpus, and dismiss the petition without prejudice. If the court accepts this recommendation, Petitioner's Motion for Court to Take Judicial Notice of Adjudicative Facts, ECF No. 29, will be rendered moot.
IT IS SO RECOMMENDED.
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. D 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).