Opinion
Civil Action No. 6:18-1098-JMC-KFM
04-19-2019
Emeregildo Roman, Petitioner, v. H. Joyner, Respondent.
REPORT OF MAGISTRATE JUDGE
This matter is before the court on the respondent's motion to dismiss or, in the alternative, for summary judgment (doc. 31). The petitioner, a federal prisoner proceeding pro se, seeks habeas corpus relief pursuant to Title 28, United States Code, Section 2241. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the district court.
BACKGROUND
The petitioner was indicted in the United States District Court for the Middle District of Florida for one count of conspiracy to commit armed bank robbery, five counts of armed bank robbery, five counts of carrying and brandishing a firearm during a crime of violence, and one count of bank robbery (doc. 27at 2). See United States v. Roman, Cr. No. 8:06-cr-326-T-23TGW (M.D. Fla.). A trial was held on April 4-12, 2007, and the petitioner was convicted of all counts. On June 29, 2007, the district court sentenced the petitioner to a total 1,519 months (doc. 27 at 3). Judgment was entered on July 5, 2007, and the petitioner filed a notice of appeal. The United States Court of Appeals for the Eleventh Circuit Court found no reversible error and affirmed the convictions and sentences of the petitioner and his co-defendant. United States v. Roman, 372 F. App'x 28, 29-30 (11th Cir. 2010). The petitioner sought a writ of certiorari, which the Supreme Court of the United States denied on October 4, 2010. United States v. Roman, 562 U.S. 907 (2010).
The respondent provides a 1996 criminal case number that does not appear to be associated with the sentence at issue here (doc. 31-1 at 1).
On October 21, 2011, the petitioner filed a motion to vacate pursuant to Title 28, United States Code, § 2255 in the Middle District of Florida, raising various grounds. The district court dismissed the § 2255 petition because it was untimely. Roman v. United States, No. 8:11-cv-2384-T-23TGW, 2011 WL 5358655 (M.D. Fla. Oct. 28, 2011). The petitioner did not appeal.
On June 26, 2016, the petitioner filed a second motion to vacate pursuant § 2255, which was dismissed because the district court lacked jurisdiction to review a second or successive motion without the requisite authorization from the circuit court. Roman v. United States, No. 8:16-cv-1776-T-23TGW, 2016 WL 3615716 (M.D. Fla. July 6, 2016).
The petitioner informed the district court that he had requested authorization to file a second or successive motion in the Court of Appeals for the Eleventh Circuit and, as a consequence, he moved the district court to hold in abeyance his § 2255 motion. Roman, 2016 WL 3615716, at *2. The district court ruled that it could not hold in abeyance an action over which it lacked jurisdiction. Id. Moreover, ten days before he filed the second § 2255 motion, the Eleventh Circuit denied his request for leave to file a second/successive motion. Id.
The petitioner is currently incarcerated in Estill Federal Correctional Institution in Estill, South Carolina (doc. 27 at 1). On April 20, 2018, the petitioner filed a petition in this court pursuant to 28 U.S.C. § 2241 (doc. 1). On August 8, 2018, the petitioner filed an amended petition asserting that he should be resentenced in light of Dean v. United States, 137 S.Ct. 1170 (2017) and that his convictions under 18 U.S.C. § 924(c) should be revisited in light of Sessions v. Dimaya, 138 S.Ct. 1204 (2018) (doc. 27).
On September 6, 2018, the respondent filed a motion to dismiss or, in the alternative, for summary judgment (doc. 31). By order issued September 7, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the petitioner was advised of the motion to dismiss and motion for summary judgment procedures and the possible consequences if he failed to adequately respond to the motion (doc. 32). On September 21, 2018, the petitioner filed a "notice of non-compliance with Local Rule 7.05(C)(2) (D.S.C.) and request to dismiss motion to dismiss or in the alternative grant summary judgment" (doc. 34). In that notice, the plaintiff argues that the respondent's motion should be denied because the respondent failed to attach copies of cited unpublished decisions in violation of this District's Local Civil Rules (doc. 34). After receiving one extension of time, the petitioner filed a response in opposition to the respondent's motion on November 26, 2018 (doc. 41).
APPLICABLE LAW AND ANALYSIS
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); In re 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, the petitioner's § 2241 action is barred unless he can demonstrate that the relief available to him under § 2255 is inadequate or ineffective. Here, the petitioner was unsuccessful in seeking relief under § 2255 in the sentencing court. 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).
In In re Jones, the Court of Appeals for the Fourth Circuit considered a case in which the petitioner contested the legality of his conviction. The court held:
[Section] § 2255 is inadequate and ineffective to test the legality of a conviction when: (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.
Recently, the Court of Appeals established a test for evaluating whether a petitioner may meet the savings clause under § 2255 when he contests the legality of 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) (stating that In re Jones "is still good law in this circuit" and construing In re Jones to pertain to alleged sentencing errors). 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"); see also Rice v. Rivera, 617 F.3d at 807 (providing that if a federal prisoner brings a § 2241 petition that does not fall within the scope of § 2255(e)'s savings clause, the district court must dismiss the unauthorized habeas petition for lack of jurisdiction).
In the instant case, the petitioner asserts that the savings clause permits him to bring his claims within the § 2241 petition because of changes brought on by recent Supreme Court cases (doc. 1-1 at 5-11). The petitioner first claims that he should be resentenced in light of Dean v United States, 137 S.Ct. 1170 (2017). Dean stands generally as a reaffirmation that a sentencing court has discretion in crafting a just and proportional sentence. Specifically, it deals with the fact that a conviction under § 924(c) carries a mandatory minimum term, and that term must be imposed consecutive to the sentence imposed for the related, underlying offense. Id. at 1174. The Supreme Court of the United States held in Dean that this mandatory consecutive provision, and its effect on a defendant's entire sentence, can be considered by the sentencing court when sentencing on the other count or counts. Id. at 1176.
The petitioner cannot satisfy the retroactivity requirement of In re Jones and Wheeler. He relies upon Dean in support of his request for resentencing, but that case has not been deemed retroactively applicable by the Supreme Court or any other court. Dean announced a non-retroactive procedural rule. It did not prohibit the imposition of a particular punishment, it did not expand the range of permissible penalties, and it did not change the substantive reach of a criminal statute. Dean held only that a sentencing court is not "prevent[ed] * * * from considering a mandatory minimum under § 924(c) when calculating an appropriate sentence for the predicate offense." 137 S. Ct. at 1178 (emphasis added). Because Dean simply alters the factors that a court may consider when sentencing a defendant on a § 924(c) predicate offense, it announced a procedural rule without retroactive effect. The Fourth Circuit recently held in an unpublished case that Dean does not provide a basis to allow a § 2241 petition to be used to pursue habeas relief under the savings clause of § 2255 "because Dean has not been held to apply retroactively to cases on collateral review." Habeck v. United States, 741 F. App'x 953, 954 (4th Cir. 2018) (citing In re Dockery, 869 F.3d 356, 356 (5th Cir. 2017)), cert denied., 2019 WL 635480 (Mar. 18, 2019). See also Smalls v. Warden FMC Butner, C.A. No. 5:17-HC-2117-FL, 2019 WL 722571, at *3 (E.D. N.C. Feb. 20, 2019)(citing Habeck, 741 F. App'x at 954; In re Dockery, 869 F.3d at 356) (holding that petitioner could not satisfy second prong of Wheeler test because Dean has not been deemed to apply retroactively to cases on collateral review). Accordingly, the petitioner has failed to satisfy his burden of demonstrating that § 2255 is an inadequate or ineffective means of challenging the validity of his detention. Accordingly, the petitioner's claim based on Dean should be dismissed.
As argued by the respondent, the petitioner's reliance on a Seventh Circuit case, United States v. Fox, 878 F.3d 574 (7th Cir. 2017), is misplaced (see doc. 27-1 at 8-9). Fox was a direct appeal in which the Seventh Circuit vacated Fox's sentence and remanded for resentencing. Fox does not stand for the proposition that Dean is retroactively applicable to cases on collateral review. Instead, it simply applied Dean on direct appeal. Fox, 878 F.3d at 580.
The petitioner argues that the respondent's motion to dismiss should be denied based on the respondent's failure to attach copies of cited unpublished opinions (doc. 34). Local Civil Rule 7.05(C)(2) (D.S.C.) provides that "[a]ttachments to memoranda shall include the following: Copies of any unpublished decisions not readily available online . . . ." In the motion to dismiss, the respondent cites several unpublished decisions in support of the argument that the petitioner's claim based on Dean should be dismissed (doc. 31-1 at 8-10). However, the cases cited by the respondent are all readily available on Westlaw. Further, while the petitioner states that he does not have access to Westlaw, he does not appear to have been prejudiced in any way as he provided a 27-page response in opposition to the motion to dismiss in which he cites both published and unpublished cases (see doc. 41). Accordingly, the petitioner's argument should be rejected.
The petitioner also claims that his 18 U.S.C. § 924(c) convictions should be vacated in light of Sessions v. Dimaya, 138 S.Ct. 1204 (2018). The petitioner was charged, convicted, and sentenced on five counts of carrying and brandishing a firearm during a crime of violence in violation of 18 U.S.C. 924(c)(1)(A). Section 924(c)(1) provides for, among other things, mandatory minimum sentences for "any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm . . . ." 18 U.S.C. § 924(c)(1)(A). "In order to prove a violation of § 924(c)(1), the Government must show two elements: (1) the defendant used or carried a firearm, and (2) the defendant did so during and in relation to a drug trafficking offense or crime of violence." United States v. Mitchell, 104 F.3d 649, 652 (4th Cir. 1997) (citations omitted). Section 924(c)(3) defines a "crime of violence" as a felony that either (1) "has as an element the use, attempted use, or threatened use of physical force against the person or property of another," or (2) "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 924(c)(3)(A), (B). "Subsection A is commonly called the force clause and subsection B the residual clause." In re Irby, 858 F.3d 231, 233 (4th Cir. 2017).
The force clause is also sometimes called the "elements clause."
The Supreme Court held in Johnson v. United States that the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), is void for vagueness because it invited "more unpredictability and arbitrariness" than the Constitution allows, and it necessarily "devolv[ed] into guesswork and intuition." 135 S.Ct. 2551, 2558-59 (2015). Subsequently, in Dimaya, the Supreme Court decided, relying on Johnson, that the residual clause of 18 U.S.C. § 16(b), applicable to the Immigration and Nationality Act, 8 U.S.C. § 1227, is likewise unconstitutionally vague. 138 S. Ct. at 1223. The petitioner asserts that, while the Supreme Court has not found that the residual clause of 18 U.SC. § 924(c)(3)(B) is unconstitutionally vague, this court should follow the lower courts that have done so in light of Dimaya (doc. 27-1 at 5-7, 10).
As argued by the respondent (doc. 31-1 at 11), the petitioner's claim fails because, under Eleventh Circuit precedent, even if the residual clause of § 924(c)(3)(B) is found to be unconstitutionally void for vagueness, the petitioner's sentence would still be valid because federal armed bank robbery qualifies as a crime of violence under the force clause of § 924(c)(3)(A). The Court of Appeals for the Eleventh Circuit recently stated:
Under the second element of the Wheeler test, the substantive law change must arise from either the Supreme Court of the United States or the circuit court of the court of conviction, which in this case would be the United States Court of Appeals for the Eleventh Circuit. See Van Hoorelbeke v. United States, C.A. No. 0:08-cv-3869-CMC-PJG, 2010 WL 146289, at *4 (D.S.C. Jan. 8, 2010) (citation omitted) (noting that substantive law relevant to a § 2241 petition is that of the circuit in which the petitioner was convicted).
[I]n In re Hines, 824 F.3d 1334, 1336-37 (11th Cir. 2016), . . ., this Court held that armed federal bank robbery under 18 U.S.C. § 2113(a) and (d) qualifies as a crime of violence under § 924(c)(3)(A)'s elements clause. In In re Sams, 830 F.3d at 1239, this Court further held that bank robbery solely under § 2113(a) qualifies as a crime of violence under § 924(c)(3)(A)'s elements clause.U.S. v. St. Hubert, 918 F.3d 1174, 1182 (11th Cir. 2019) (denying rehearing en banc). See United States v. St. Hubert, 909 F.3d 335, 345-46 (11th Cir. 2018) (holding that published orders issued by three-judge panels on applications for leave to file second or successive habeas corpus petitions or motions to vacate, pursuant to 28 U.S.C. §§ 2244(b)(2)-(3), 2255(h), constitute binding precedent in the Eleventh Circuit).
The underlying offenses of the petitioner's § 924(c) convictions were five armed bank robberies. As set out above, under binding Eleventh Circuit precedent, both armed bank robbery and unarmed bank robbery qualify as crimes of violence under the § 924(c)(3)(A) force clause. Because the petitioner's convictions under § 924(c) are predicated on federal armed bank robbery, which is a crime of violence under the force clause of § 924(c)(3)(A), a determination that the residual clause of § 924(c) is unconstitutional would not provide him any relief. See United States v. Rice, C.A. No. 3:02-cr-161-CMC, 2016 WL 4613382, at *3 (D.S.C. Sept. 6, 2016) ("Because ... precedent dictates that Defendant's underlying conviction for federal armed bank robbery is a crime of violence under the force clause of § 924(c), a determination that the residual clause of § 924(c) is unconstitutional would not afford Defendant any relief. Defendant's conviction under § 924(c) is based on a valid underlying offense and therefore must stand."). See also Perkins v. Vereen, C.A. No. 8:19-CV-0047-MGL-JDA, 2019 WL 1411105, at *6 (D.S.C. Feb. 4, 2019) (recommending dismissal of § 2241 petition for lack of jurisdiction because petitioner's conviction for robbery qualified as a crime of violence under the force clause of § 924(c)(3)(A), and thus his sentence was valid), R&R adopted by 2019 WL 1405824 (D.S.C. Mar. 28, 2019).
Since the filing of the parties' briefs in this case, the Fourth Circuit, relying on Johnson and Dimaya, held that "the text and structure of § 924(c)(3)(B) plainly set forth a definition of 'crime of violence' that fails to comport with due process," thus becoming the most recent circuit court to hold that § 924(c)(3)(B)'s residual clause is unconstitutionally vague. United States v. Simms, 914 F.3d 229, 232 (4th Cir. 2019). However, the Eleventh Circuit has held that the residual clause is not unconstitutional. Ovalles v. United States, 905 F.3d 1231, 1253 (11th Cir 2018) (en banc), pet. for cert. filed (Mar. 12, 2019). See also In re Garrett, 908 F.3d 686, 689 (11th Cir. 2018) ("[Under Ovalles], neither Johnson nor Dimaya supplies any 'rule of constitutional law' ... that can support a vagueness-based challenge to the residual clause of section 924(c)."). The Supreme Court recently granted certiorari to determine the constitutionality of § 924(c)'s residual clause. See United States v. Davis,139 S.Ct. 782 (2019).
Based upon the foregoing, the petitioner has not demonstrated that, under Wheeler, a motion filed pursuant to § 2255 is inadequate or ineffective to test the legality of his sentence thereby allowing him to file a § 2241 petition. This court, therefore, lacks jurisdiction to consider the petition.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, this court recommends that the respondent's motion to dismiss for lack of subject matter jurisdiction (doc. 31) be granted and that the petition be dismissed without prejudice. See Platts v. O'Brien, 691 F. App'x 774 (4th Cir. 2017) (citation omitted) (dismissing § 2241 petition without prejudice "because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits").
IT IS SO RECOMMENDED.
s/Kevin F. McDonald
United States Magistrate Judge April 19, 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
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).