Bristow Marchant United States Magistrate Judge

REPORT AND RECOMMENDATION

The pro se Petitioner, Cedric Reynolds, an inmate at FCI-Estill, brings this application for writ of habeas corpus (Petition) pursuant to 28 U.S.C. § 2241. Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in this case pursuant to the procedural provisions of the Rules Governing Section 2254 Proceedings in the United States District Court, 28 U.S.C. § 2254; the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996; and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).

Pro se petitions are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a petition filed by a pro se litigant to allow for the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89 (2007); Hughes v. Rowe, 449 U.S. 5, 9 (1980); Fine v. City of New York, 529 F.2d 70, 74 (2d Cir. 1975). However, even when considered under this less stringent standard, for the reasons set forth hereinbelow the petition submitted in the instant case is subject to summary dismissal. The requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). Such is the case here.

Discussion

After pleading guilty in 2013 in the United States District Court for the Southern District of Georgia to possession of a firearm by an armed career criminal, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1), Petitioner received an enhanced sentence under the Armed Career Criminal Act (ACCA) because he had a prior Georgia conviction for possession of a controlled substance with intent to distribute, a juvenile adjudication for making terroristic threats, and a juvenile adjudication for aggravated assault. No direct appeal was filed. See Reynolds v. United States, No. 17-10092-G, 2017 WL 6888009 (11th Cir. Dec. 28, 2017).

In June 2014, Petitioner filed his first motion to vacate pursuant to 28 U.S.C. § 2255, claiming ineffective assistance of counsel for (1) his attorney's failure to object to this ACCA sentencing enhancement on the ground it was not charged in the indictment and (2) to the use of his previous juvenile adjudications as qualifying ACCA predicate offenses. The district court denied the § 2255 motion on the merits, concluding that both of Petitioner's juvenile adjudications qualified as ACCA violent-felony predicate offenses under the ACCA's elements clause and denied a certificate of appealability (COA). Petitioner moved the Eleventh Circuit Court of Appeals for a COA, arguing for the first time that he was entitled to relief on his second claim under Johnson v. United States, 135 S.Ct. 2551 (2015)[declaring the residual clause in ACCA, 18 U.S.C. § 924(e), unconstitutionally vague], based on the vagueness of the state's record that was used to enhance his sentence. The COA was denied with the Eleventh Circuit concluding that Petitioner's reliance on Johnson was misplaced because Johnson concerned only the residual clause of the ACCA and did not affect the ACCA's elements clause, which is the clause that applied to Petitioner's juvenile offenses. See Reynolds v. United States, 2017 WL 6888009, at *1.

Petitioner filed a second § 2255 motion in the Southern District of Georgia (after receiving leave from the Eleventh Circuit to do so in July 2016), contending that his ACCA-enhanced sentence was illegal in light of Johnson, specifically arguing that his Georgia aggravated-assault and terroristic-threats adjudications no longer qualified as ACCA violent-felony predicate offenses such that he no longer had at least three qualifying offenses supporting his ACCA-enhanced sentence. He also claimed that his ACCA-sentence was illegal in light of Descamps v. United States, 570 U.S. 254 (2013). A magistrate judge recommended that the second § 2255 motion be dismissed for Petitioner's failure to meet § 2255(h)(2)'s requirement that the raised claim be previously unavailable to him because he previously presented his Johnson-based claim in his COA motion to the Eleventh Circuit as to his initial § 2255 motion (the Descamps claims were not addressed). See Reynolds v. United States, Nos. CV416-194, CR412-239, 2016 WL 5030375 (S.D.Ga. Sept. 19, 2016). The Southern District of Georgia adopted the report and recommendation and dismissed the second §2255 motion for lack of jurisdiction. Reynolds v. United States, Nos. CV416-194, CR412-239, 2016 WL 7493970 (S.D.Ga. Dec. 30, 2016). The Eleventh Circuit denied a COA finding that they had already denied Petitioner a COA on his claim that his prior juvenile convictions no longer constituted ACCA violent-felony predicates post-Johnson and that he failed to show that any exceptions applied. Id. at *3.

In the present Petition, Petitioner again asserts that he is challenging the use of a sentence enhancement under the Armed Career Criminal Act (ACCA) and asks to be resentenced without reference to the ACCA to a sentence not exceeding the ten-year statutory maximum. Petition, ECF No. 1 at 8-9. His ground for relief is that his sentence was improperly enhanced under the ACCA based on three prior offences, one of which, the Georgia terroristic threat, should no longer be considered violent for ACCA purposes. Id. at 8. Petitioner argues that he has demonstrated that he is entitled to relief under United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018) because the government conceded in Stewart v. United States, 2017 WL 1407641 (M.D.Ga. Apr. 19, 2017) that Georgia terroristic threats no longer qualify as ACCA predicates. Petitioner's Memorandum, ECF No. 1-1 at 4.

This action is subject to summary dismissal because generally "it is well established that defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255," not through a petition filed pursuant to § 2241. Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citing In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997)). However, a federal prisoner may file a § 2241 petition challenging his conviction if § 2255 is "inadequate or ineffective to test the legality of [his] detention." In re Jones, 226 F.3d 328, 333 (4th Cir. 2000) (internal quotation marks omitted); see 28 U.S.C. § 2255(e). Here, Petitioner challenges only his sentence. Recently, in Wheeler, the Fourth Circuit held that § 2255 is inadequate or 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.

Petitioner fails to meet the above test as he cannot establish that, subsequent to his first § 2255 motion, the "settled substantive law [that established the legality of his sentence] changed and was deemed to apply retroactively on collateral review," as required by the second prong. Wheeler, 886 F.3d at 429. Petitioner argues that Johnson, made retroactive by Welch v. United States, 136 S.Ct. 1257, 1268 ( 2016), changed settled substantive law. However, as found by the Eleventh Circuit, Petitioner's sentence was enhanced under the elements clause of the ACCA, not the residual clause and Johnson applies only to defendants sentenced under the ACCA's residual clause.

In a report and recommendation as to Petitioner's first § 2255 motion, which was adopted by the district judge, the magistrate judge specifically noted:

Reynolds was ACCA-enhanced based on two juvenile adjudications. The first, which occurred in 2002, was for terroristic threats - - Reynolds pointed a pistol at a victim and threatened a crime of violence against him. (Cr. Doc. 50-1 at 3). The second occurred in 2005. Reynolds was adjudicated guilty of aggravated assault when he pointed a gun at the victim's face. (Id. at 4.).

Petitioner appears to argue that because the Middle District of Georgia found in Stewart v. United States, No. 5:06-cr-00039-HL-CHW-1, 2017 WL 1407641 (M.D.Ga. Apr. 19, 2017) that Stewart's Georgia terroristic threats were no longer a violent felony under the ACCA post-Johnson, that his terroristic threat conviction should also no longer be deemed a violent felony under the ACCA. However, the court in Stewart noted that "[t]he United States Attorney's Office for the Middle District of Georgia, for purposes of [Stewart's] case only, agrees with the Northern District United States Attorney's Office determination and will not raise a challenge to Petitioner's contentions that Georgia terroristic threats is no longer a 'violent felony' under the ACCA." Stewart, 2017 WL 1407641, at *2 (emphasis added). Petitioner has presented nothing indicating that the government has agreed in his case that his terroristic threat conviction is no longer a qualifying prior violent felony for ACCA purposes. Further, the cases cited by Petitioner are unpublished district court cases. There is no indication that he meets the second part of Wheeler as he has not pointed to any Circuit Court or Supreme Court case showing that "the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review."

Recently, the Eleventh Circuit considered a similar argument in a § 2255 motion in the case of Greer v. United States, No. 17-12181, 2018 WL 4521008 (11th Cir. Sept. 20, 2018), in which Greer asserted that Descamps and Johnson applied retroactively to his case, the Georgia terroristic threats statute was categorically overbroad, and even if the district court enhanced his sentence under the elements clause, he was still entitled to relief. The Middle District of Georgia denied Greer's § 2255 motion because it had sentenced Greer under the elements clause, so Johnson had no bearing. The district court addressed the merits of Greer's claim under Descamps and Mathis v. United States, 136 S.Ct. 2243 (2016) and determined that the Georgia terroristic threats statute contained alternative elements of separate types of terroristic threats, rather than alternative means to commit one crime, concluded that Greer was convicted under the provision that makes it a crime to threaten to commit any crime of violence with the purpose of terrorizing another person, found that his convictions necessarily included a threat of force capable of causing physical pain or injury because they were based on threatening to commit murder or aggravated assault, and held that Greer's convictions were violent felonies under the elements clause of the ACCA. On appeal, the Eleventh Circuit declined to consider Greer's claim under Johnson because the district court did not grant a COA, but considered his claim on the merits under Descamps and affirmed the district court's denial of his § 2255 motion. Specifically, the Eleventh Circuit found that Greer's three prior convictions under Georgia's terroristic threats statute qualified as violent felonies under the ACCA's element clause because "[b]oth the ordinary meaning of 'violence' and the holdings of Geogia courts show that only threatened violent force is criminalized under the 'crime of violence' prong of Georgia's terroristic threats statute." See Greer, 2018 WL 4521008, at * 7 (11th Cir. Sept. 20, 2018).

Petitioner cannot show that he meets the Wheeler test. As a result, this Court lacks jurisdiction and Petitioner's potential remedy may be to seek permission from the United States Court of Appeals for the Eleventh Circuit to file a successive section 2255 petition in the District Court for the Southern District of Florida, in which he was sentenced.

RECOMMENDATION

Accordingly, it is recommended that the Petition in this action be dismissed without prejudice and without requiring Respondent to file a return.

Petitioner's attention is directed to the important notice on the next page.

/s/_________

Bristow Marchant

United States Magistrate Judge October 9, 2018
Charleston, 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

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).