Opinion
C. A. 9:20-cv-02356-HMH-MHC
07-12-2021
Carlos Demond Robinson, Petitioner, v. Warden Phelps, Respondent.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
Petitioner Carlos Demond Robinson (“Petitioner”), a federal inmate currently incarcerated at the Federal Correctional Institution (“FCI”) Edgefield, petitions the Court for a writ of habeas corpus under 28 U.S.C. § 2241. Respondent filed a Motion for Summary Judgment, ECF No. 17, and Petitioner filed a Response in Opposition, ECF No. 20. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(1)(c) (D.S.C.), this matter was assigned to the undersigned for a Report and Recommendation. For the reasons that follow, the undersigned concludes that the Court lacks subject matter jurisdiction to entertain the petition and the matter should be dismissed.
I. BACKGROUND
A. Petitioner's conviction and sentence
On May 26, 2004, after a jury trial, Petitioner was found guilty of conspiracy to possess and possession with intent to distribute crack cocaine and cocaine in violation of 21 U.S.C. § 841(b)(1)(A), two counts of possession with intent to distribute 50 grams or more of crack cocaine and a quantity of cocaine in violation of 21 U.S.C. § 841(b)(1)(A), two counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), and two counts of using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C.
With regard to the charges under § 922(g) (being a felon in possession), the jury was instructed as follows:
In order to convict [Petitioner] of possession of a firearm by a convicted felon, the government must prove three elements beyond a reasonable doubt. First, that he had previously been convicted of a crime punishable by a term of imprisonment exceeding one year and his civil rights have not been restored; second, that he knowingly possessed a firearm; and third that the firearm was in or affected interstate commerce.
The first element requires proof that he had been convicted of a crime punishable by imprisonment for a term exceeding one year. And the defendant stipulates, and therefore you can accept it as having been proved, that the defendant was a felon, a convicted felon. And I instruct you in this connection that the prior conviction is an element of this charge is -- as an element of this charge it's only to be considered by you for the fact that it exists and for nothing else.ECF No. 1-2 at 5-6 (emphasis added). At trial, the government, Petitioner, and Petitioner's trial counsel stipulated, in pertinent part:
Number one, Carlos Demond Robinson on or about October thirtieth, two thousand and two, and also on or about February second, two thousand and three, had previously been convicted of a crime punishable for a term exceeding one year and that the defendant, Carlos Demond Robinson, had not been pardoned for the above referenced conviction, nor has the conviction been expunged, nor have his civil rights to possess a firearm or ammunition been restored.United States v. Robinson, Case No. 6:03-cr-616-HMH (D.S.C. terminated Dec. 12, 2004), ECF No. 106-2 at 10.
The Court cites to and takes judicial notice of the trial court's docket when necessary. 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 that Respondent cited are not included with the Motion for Summary Judgment and 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).
Petitioner was ultimately sentenced to 960 months' imprisonment (including a 360-month sentence on the drug charges, 120-month concurrent sentence on the felon in possession charges, and two consecutive 300-month sentences on the § 924(c) convictions). He appealed his convictions and the Fourth Circuit remanded pursuant to United States v. Booker, 543 U.S. 220, 245 (2005). See United States v. Robinson, 221 Fed.Appx. 236, 244 (4th Cir. 2007). Petitioner was again sentenced to a 960-month sentence based on the advisory sentencing guidelines, and the Fourth Circuit affirmed Petitioner's convictions and sentences on February 14, 2008. See United States v. Robinson, 264 Fed.Appx. 332, 333-34 (4th Cir. 2008)
B. Petitioner's prior post-conviction motions
Petitioner subsequently filed his first motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The District Court summarily dismissed Petitioner's motion on October 27, 2008. See United States v. Robinson, No. CR. 6:03-616-HMH, 2008 WL 4833015, at *5 (D.S.C. Oct. 27, 2008). Petitioner appealed, and the Fourth Circuit dismissed his appeal. See United States v. Robinson, 350 Fed.Appx. 837, 838 (4th Cir. 2009).
On August 5, 2010, Petitioner filed a motion for relief from judgment pursuant to Rule 60 of the Federal Rules of Civil Procedure, which the District Court denied. See United States v. Robinson, Cr. No. 6:03-616-HMH (D.S.C. Aug. 11, 2010), ECF No. 238. Petitioner appealed, and the Fourth Circuit dismissed the appeal, explaining that Petitioner's Rule 60 motion directly attacked his convictions and therefore was an unauthorized and successive § 2255 motion. See United States v. Robinson, 416 Fed.Appx. 317, 317-18 (4th Cir. 2011).
Petitioner filed two other motions in 2011 and 2014, which were dismissed as successive § 2255 motions. See United States v. Robinson, No. CR 6:03-616-HMH, 2011 WL 13238748, at *1 (D.S.C. Aug. 8, 2011); United States v. Robinson, No. CR 6:03-616-HMH, 2014 WL 12634793, at *1-2 (D.S.C. Dec. 1, 2014).
More recently, on July 13, 2016, the Fourth Circuit granted Petitioner's application requesting permission to file a second or successive § 2255 motion in light of Johnson v. United States, 135 S.Ct. 2551 (2015). However, Petitioner's § 2255 motion was dismissed for lack of merit. See United States v. Robinson, No. CR 6:03-616-HMH, 2016 WL 7496167, at *3 (D.S.C. July 18, 2016). The Fourth Circuit dismissed his appeal. See United States v. Robinson, 672 Fed.Appx. 330, 330-31 (4th Cir. 2017).
Petitioner recently filed a motion for sentence reduction pursuant to § 404 of the First Step Act, Pub. L. No. 115-391, December 21, 2018, 132 Stat. 5194, and motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). On June 10, 2020, the District Court denied his motion for compassionate release and reduced Petitioner's sentence to a total of 601 months' imprisonment followed by an 8-year term of supervised release. United States v. Robinson, No. CR 6:03-616-HMH, 2020 WL 3071939, at *3-5 (D.S.C. June 10, 2020). Petitioner's appeal of the court's denial of his motion for compassionate release under § 3582(c)(1)(B) is pending.
C. Petitioner's current § 2241 petition
Petitioner filed the present § 2241 habeas petition in June 2020. ECF No. 1. He contends that his 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 jury instructions were defective. ECF No. 1 at 7, ECF No. 1-1 at 3.
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 jury instructions 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). He further maintains that the government did not charge or prove that he knew he belonged to the relevant category of persons barred from possessing a firearm (i.e., a felon). ECF No. 1-1 at 3. 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 ofjurisdiction.” 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 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 District of South Carolina, this Court's analysis relies only on Fourth Circuit precedent. Cf. Hughes v. Mackelburg, No. CV81903390HMHJDA, 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 United States v. Robinson, Case No. 6:03-cr-616-HMH (D.S.C. terminated Dec. 12, 2004), ECF No. 106-2 at 10. 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)). Moreover, this stipulation was explained again to the jury via the jury instructions given by the District Judge. See ECF No. 1-2 at 5-6.
In effect, Rehaif's mandate-that the government must prove the knowledge-of-status element-is irrelevant in Petitioner's case, as the government did prove 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.
Notwithstanding that Petitioner cannot satisfy the savings clause test in Jones, Petitioner cannot show that the failure to describe the knowledge-of-status element in the jury instructions 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, Petitioner stipulated to being a convicted felon. And, as argued by Respondent (ECF No. 17-1 at 17-18), based on his criminal history, 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 2004. 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 Court 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).