Opinion
9:20-cv-02308-TMC-MHC
07-12-2021
Kemuel Cornelius Mingo, Petitioner, v. Nanette Barnes, Warden of FCI Bennettsville, Respondent.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge.
Petitioner Kemuel Cornelius Mingo (“Petitioner”), a federal inmate currently incarcerated at the Federal Correctional Institution (“FCI”) Bennettsville, petitions the Court for a writ of habeas corpus under 28 U.S.C. § 2241 (“the Petition”). Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(1)(c) (D.S.C.), the Petition was assigned to the undersigned for a Report and Recommendation. Respondent filed a Motion for Summary Judgment, ECF No. 11, and Petitioner filed a Response in Opposition, ECF No. 22. For the reasons that follow, the Court concludes that it lacks subject matter jurisdiction to entertain the petition and the matter should be dismissed.
I. BACKGROUND
A. Petitioner's conviction and sentence
In 2003, a grand jury in the Western District of North Carolina indicted Petitioner, charging him with possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) (Count One); possession with intent to distribute a mixture and substance containing cocaine base in violation of 21 U.S.C. § 841 (Count Two); and using and carrying a firearm during and in relation to a drugtrafficking offense in violation of 18 U.S.C. § 924(c)(1) (Count Three). See United States v. Mingo, 237 Fed.Appx. 860, 861-62 (4th Cir. 2007) (detailing the underlying offenses). Petitioner proceeded to trial in November 2003. Of particular importance, the evidence at trial included Petitioner's stipulation that he is a convicted felon. See Id. at 862 (“As a part of its instructions [to the jury] on Count One (felon-in-possession), the court explained that the parties had stipulated that Mingo is a convicted felon.”); see also United States v. Mingo, No. 3:03-cr-00014-KDB-DSC-1 (W.D. N.C. terminated July 25, 2005), ECF No. 34 (stipulation that “Mingo is a convicted felon”). The jury convicted Petitioner of all counts. Mingo, 237 Fed.Appx. at 862; Mingo, No. 3:03-cr-00014-KDB-DSC-1, ECF No. 39.
Because the stipulation document and other judicial documents cited by Respondent were not included with the Motion for Summary Judgment, the Court cites to the docket in the Western District of North Carolina when appropriate. See United States v. Townsend, 886 F.3d 441, 444 (4th Cir. 2018) (noting courts may take judicial notice of facts outside the record). To the extent that any of the documents cited by Respondent were not included with the Motion for Summary Judgment and are not publicly available via the CM/ECF system (such as Petitioner's presentence report), the Court cannot and did not rely on them. Cf. Funderburk v. S.C. Elec. & Gas Co., 395 F.Supp.3d 695, 718 n.18, 719 n.20 (D.S.C. 2019) (taking judicial notice of documents readily available to the public on a government website where the parties did not provide the document to the court); see also generally United States v. Huckaby, 43 F.3d 135, 137 (5th Cir. 1995) (noting presentence reports are confidential and not public documents).
The District Court in the Western District of North Carolina sentenced Petitioner to 120 months of imprisonment on Count One and 262 months of imprisonment on Count Two, to be served concurrently, and to a 60-month consecutive sentence on Count Three. See Mingo v. United States, No. 3:03CR14, 2009 WL 426558, at *1 (W.D. N.C. Feb. 20, 2009). Petitioner appealed, challenging his § 924(c) conviction by arguing that the trial court erred by not limiting its instruction on constructive possession to Count One, by constructively amending the Indictment as to Count Three, and by failing to offer alternative verdict forms as to Count Three. Mingo, 237 Fed.Appx. at 862-63. The Fourth Circuit affirmed. Id. at 868.
B. Petitioner's relevant prior post-conviction motions
In 2009, Petitioner filed his first motion to vacate under 28 U.S.C. § 2255. The District Court for the Western District of North Carolina denied relief. See Mingo, 2009 WL 426558, at *5. The Fourth Circuit denied a certificate of appealability and dismissed the appeal. United States v. Mingo, 332 Fed.Appx. 874 (4th Cir. 2009). In 2012, Petitioner filed a second § 2255 motion to vacate, which the same District Court ultimately denied as successive. Mingo v. United States, No. 3:03-CR-14-RLV-CH-1, 2013 WL 2370721, at *3-4 (W.D. N.C. May 30, 2013) The Fourth Circuit ultimately denied a certificate of appealability and dismissed the appeal as to Petitioner's request for relief under § 2255 and affirmed the remainder of the District Court's judgment. United States v. Mingo, 708 Fed.Appx. 140, 141 (4th Cir. 2018). In 2016, Petitioner filed a motion for authorization to file a successive § 2255 motion, and the Fourth Circuit denied the motion. In re Mingo, No. 16-9190 (4th Cir. June 20, 2016).
The District Court also determined that Petitioner was not entitled to alternative relief under § 2241.
Petitioner has also filed two other petitions pursuant to 28 U.S.C. § 2241, both of which were dismissed. See Mingo v. Bragg, No. 9:18-cv-1333-TMC (D.S.C. December 26, 2018); Mingo v. Bragg, No. CV 9:20-0010-JD-MHC, 2021 WL 327377 (D.S.C. Feb. 1, 2021).
C. Petitioner's current § 2241 petition
Petitioner filed the present § 2241 habeas petition in June 2020. ECF No. 1. He contends that his Count One felon-in-possession conviction under § 922(g)(1) should be vacated in light of Rehaif v. United States, 139 S.Ct. 2191 (2019) because the indictment and the jury instructions were defective. ECF No. 1-1 at 1-2. He further maintains that his Count Two § 841 drug offense and Count Three § 924(c) offense should be vacated because he would have faced only state charges had he not been charged under § 922(g)(1) as a felon-in-possession. ECF No. 1-1 at 1-2.
II. LEGAL STANDARD
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”), 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).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b), Rules Governing § 2254 Cases, 28 U.S.C.A. Foll. § 2254.
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
III. DISCUSSION
Petitioner contends in this § 2241 petition that the indictment failed to describe an essential element of the offense under 18 U.S.C. § 922(g)(1), in violation of his due process rights as outlined in Rehaif v. United States, 139 S.Ct. 2191 (2019). As a result, he contends the grand jury failed to charge him with a crime, and he further maintains that he was not apprised of essential elements of the offense. See ECF No. 1-1 at 6, 8-9. For the reasons that follow, the Court finds it lacks jurisdiction over the § 2241 Petition.
A. The savings clause exception in 28 U.S.C. § 2255
Congress requires every federal prisoner who collaterally attacks his conviction to employ the motion mechanism provided in 28 U.S.C. § 2255. However, there is one exception-if § 2255 appears “inadequate or ineffective, ” then § 2255(e) provides that a federal prisoner may apply for a writ of habeas corpus under § 2241. Farkas v. Butner, 972 F.3d 548, 550 (4th Cir. 2020). This mechanism has been referred to as the “savings clause” exception. Id.
To trigger the “savings clause” of § 2255(e) and proceed under § 2241, a petitioner must meet the savings clause test as contemplated in In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000) (challenges to convictions) or United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018) (challenges to sentences). Significantly, the savings clause is a “jurisdictional provision.” Wheeler, 886 F.3d at 423. Thus, if a petitioner cannot meet one of the Jones or Wheeler requirements, then the § 2241 petition “must be dismissed for lack of jurisdiction.” Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010).
Here, Petitioner only challenges the legality of his conviction, not his sentence. Therefore, the test under Wheeler is inapplicable to Petitioner's case.
To demonstrate that a § 2255 motion is inadequate or ineffective to test the legality of a conviction, a petitioner must show that:
(1) at the time of the 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.In re Jones, 226 F.3d at 333-34.
Initially, the Court notes that Petitioner meets the first and third prongs of the Jones test because the legality of his felon-in-possession conviction was established by settled precedent at the time of his conviction, and Rehaif is not a new rule of constitutional law. See United States v. Lockhart, 947 F.3d 187, 196 (4th Cir. 2020) (“The Court's holding in Rehaif abrogated the prior precedent of this Circuit, which did not require proof of a defendant's knowledge that he belonged to the relevant category.”).
“In evaluating substantive claims under the savings clause, ” a district court must “look to the substantive law of the circuit where a defendant was convicted.” Hahn v. Moseley, 931 F.3d 295, 301 (4th Cir. 2019). The applicable “procedural law, ” however, is that of the district court's home circuit. Id. Because Petitioner was convicted in the Western District of North Carolina, this Court's analysis relies only on Fourth Circuit precedent. Cf. Hughes v. Mackelburg, No. CV 81903390HMHJDA, 2020 WL 1429351, at *1 n.2 (D.S.C. Mar. 24, 2020) (applying the procedural law of the Fourth Circuit and the substantive law of the Eleventh Circuit in analyzing a § 2241 petition brought via § 2255's savings clause).
However, Petitioner fails to satisfy the second prong of the Jones test. As noted above, the second prong of the Jones test is that subsequent to a petitioner's direct appeal and first § 2255 motion, the substantive law changed and made the conduct for which the petitioner was convicted no longer criminal. In re Jones, 226 F.3d at 333-34. “The plain meaning of the phrase ‘the conduct of which the prisoner was convicted' refers to the conduct that a jury found beyond a reasonable doubt supported the prisoner's conviction.” Hahn v. Moseley, 931 F.3d 295, 304-05 (4th Cir. 2019) (Wynn, J., concurring). In other words, in analyzing whether the second prong of the Jones test is satisfied, the Court looks to the facts the government introduced to the jury at trial. See Id. (Wynn, J., concurring) (“Notably, Jones focused not on whether a petitioner was ‘actually innocent,' but whether a subsequent change in statutory construction amounted to a ‘fundamental defect' in the petitioner's prosecution.” (emphasis added)).
Similarly, Rehaif concerned the government's burden of proof at trial-specifically, the Supreme Court held that in order to prove an offense under the felon-in-possession statutes 18 U.S.C. §§ 922(g) and 924(a)(2), the government must show that a defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed the firearm. 139 S.Ct. at 2194. In short, the word “knowingly” applied both to a defendant's conduct and to a defendant's status. Id.
In the instant matter, as in Rehaif, Petitioner went to trial on the felon-in-possession charge under § 922(g)(1). However, here, the government met its burden of proof as to the knowledge-of-status element because Petitioner entered a stipulation at trial that he had a prior felony conviction. See Mingo, 237 Fed.Appx. at 862 (“As a part of its instructions [to the jury] on Count One (felon-in-possession), the court explained that the parties had stipulated that Mingo is a convicted felon.”); see also Mingo, No. 3:03-cr-00014-KDB-DSC-1, ECF No. 34 (stipulation that “Mingo is a convicted felon”). In other words, Petitioner stipulated to the knowledge-of-status element, effectively relieving the government of its burden to prove this element. See Christian Legal Soc'y Chapter of Univ. of Cal. v. Martinez, 561 U.S. 661, 677-78 (2010) (stating that factual stipulations “have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact” (citation omitted)).
In effect, Rehaif's mandate-that the government must prove the knowledge-of-status element-is irrelevant in Petitioner's case, as the government proved this element via the stipulation. Thus, all of the elements that are now required in a § 922(g) conviction post- Rehaif were actually presented to the jury at Petitioner's trial, and that jury found beyond a reasonable doubt that Petitioner's conduct supported a conviction under § 922(g)(1). See Hahn, 931 F.3d at 304-05 (Wynn, J., concurring) (“The plain meaning of the phrase ‘the conduct of which the prisoner was convicted' refers to the conduct that a jury found beyond a reasonable doubt supported the prisoner's conviction.” (emphasis added)). Consequently, in light of Petitioner's stipulation at trial, Petitioner cannot meet the requirements of the Jones test to show the conduct of which he was convicted is no longer criminal. See Rainner v. Warden FCI Bennettsville, No. CV 6:19-2207-JMC-KFM, 2020 WL 5732362, at *3 (D.S.C. July 17, 2020) (finding the second prong in Jones was not met because the petitioner stipulated as to his felony status, and “that stipulation relieved the government of the obligation of proving the first element of his § 922(g)(1) conviction (the status element)”), report and recommendation adopted, No. 6:19-CV-02207-JMC, 2020 WL 5702103 (D.S.C. Sept. 24, 2020), appeal docketed, No. 20-7511 (4th Cir. Oct. 14, 2020); Moss v. Dobbs, No. 8: 19-CV-02280-JMC-JDA, 2019 WL 7284989, at *6-7 (D.S.C. Sept. 23, 2019) (finding a petitioner failed to satisfy the second prong under Jones where the petitioner entered a stipulation at trial that he was a felon, which satisfied the government's burden of proof as to the knowledge-of-status element), report and recommendation adopted, No. 8:19-CV-02280-JMC, 2019 WL 5616884 (D.S.C. Oct. 31, 2019).
Based on the foregoing, Petitioner has failed to satisfy his burden of demonstrating that he meets the savings clause test as contemplated in Jones. Thus, his § 2241 petition should be dismissed for lack of jurisdiction. See Rice, 617 F.3d at 807.
Petitioner offers no substantive challenge to his Count Two § 841 and Count Three § 924(c) convictions. In any event, Rehaif has no bearing on those convictions and therefore Petitioner cannot meet the savings clause test. See generally Battis v. United States, No. 8:19-CV-2447-T-02AAS, 2020 WL 1027180, at *2 (M.D. Fla. Mar. 3, 2020) (“Rehaif has no applicability to movant's case, as the requirements for conviction under 18 U.S.C. § 924(c)(1)(A)(i) were not affected by the ruling in Rehaif.”); Mitchell v. United States, No. 1:15-CR-00040-JAW-3, 2020 WL 130578, at *3 (D. Me. Jan. 10, 2020) (“Even assuming Rehaif applies retroactively on collateral review, the decision has no applicability to 21 U.S.C. §§ 841(a)(1) and 846.”), report and recommendation adopted, No. 1:15-CR-00040-JAW-3, 2020 WL 2545314 (D. Me. May 19, 2020).
Notwithstanding that Petitioner cannot satisfy the savings clause test in Jones, Petitioner cannot show that the failure of the indictment to describe the knowledge-of-status element prejudiced him or otherwise had a substantial or injurious effect on the outcome of his case. See United States v. Norman, No. CR 7:17-527-HMH, 2020 WL 4043648, at *8 (D.S.C. July 17, 2020) (finding a Rehaif error did not affect the petitioner's substantial rights or affect the outcome of the proceedings in a § 2255 petition because, inter alia, the petitioner had been sentenced to more than one year in prison on three separate occasions and the petitioner stipulated to the existence of his prior felonies); see also Walker v. Rivera, 820 F.Supp.2d 709, 715 (D.S.C. 2011) (applying the “substantial and injurious effect” standard on a § 2241 petition that satisfied the § 2255 savingsclause exception), aff'd, 468 Fed.Appx. 341 (4th Cir. 2012). As noted above, and argued by Respondent (ECF No. 11-1 at 16-19), Petitioner stipulated to being a convicted felon. Among his prior state convictions, Petitioner was sentenced to ten to twelve months of imprisonment for two consolidated convictions from 1999. ECF No. 11-3 at 1. In addition, in pleading guilty to drug charges in 2001, he affirmed as part of his plea that each count was punishable by a maximum of thirty months of imprisonment, for a total maximum punishment of sixty months. ECF No. 11-5 at 1, 3. Therefore, he cannot credibly argue that he was unaware that he had been convicted of at least one crime punishable by imprisonment for a term exceeding one year when he possessed the firearm in 2002. See generally Greer v. United States, 141 S.Ct. 2090, 2095, 2021 WL 2405146, at **2 (U.S. June 14, 2021) (“As many courts have recognized and as common sense suggests, individuals who are convicted felons ordinarily know that they are convicted felons.”). Accordingly, to the extent the Court has jurisdiction to consider Petitioner's Rehaif claim, the claim fails on the merits.
IV. RECOMMENDATION
For the foregoing reasons, this Court lacks jurisdiction to entertain the Petition. Accordingly, it is recommended that the § 2241 petition be dismissed without prejudice. See Fed.R.Civ.P. 12(h)(3) (“[I]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”); Platts v. O'Brien, 691 Fed.Appx. 774 (4th Cir. 2017) (dismissing § 2241 petition without prejudice “because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits” (citation omitted)). Consequently, Respondent's Motion for Summary Judgment should be terminated as moot. See Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995) (stating that dismissal, rather than summary judgment, is appropriate when the court concludes it lacks jurisdiction over an action).
As noted above, the undersigned agrees with Respondent that the Rehaif claim fails on the merits. Thus, in the alternative, if the District Judge finds that subject-matter jurisdiction exists in his independent review, the undersigned recommends granting the Motion for Summary Judgment.
The parties are directed to the next page for their rights to file objections to this 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 835
Charleston, South Carolina 29402
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).