Opinion
C/A No. 6:20-cv-00394-BHH-KFM
02-10-2020
Difankh Asar, Petitioner, v. Warden Travis, Respondent.
REPORT OF MAGISTRATE JUDGE
The petitioner, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2241 for habeas relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court. For the reasons set forth below, it is recommended that the petitioner's § 2241 petition be dismissed without prejudice and without requiring the respondent to file an answer or return.
The petitioner's § 2241 petition was entered on the docket on January 31, 2020 (doc. 1). The case is in proper form for judicial screening.
BACKGROUND
Petitioner's Conviction and Sentence
On July 26, 2010, the petitioner pled guilty in the United States District Court for the District of South Carolina to Count 1 of an Indictment charging him with the unlawful possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1); 924(a)(2); 924(e). See United States v. Asar, C/A No. 7:10-cr-00429-BHH-1, at doc. 43 (D.S.C.). On December 9, 2010, the Honorable G. Ross Anderson, Jr., United States District Judge, sentenced the petitioner to a term of 180 months' imprisonment followed by five years of supervised release. Id. at doc. 56. The sentence was enhanced based upon the Armed Career Criminal Act ("ACCA"). Id. The petitioner appealed, but the Fourth Circuit Court of Appeals affirmed the district court on May 8, 2012. Id. at docs. 59; 81; see United States v. Asar, 480 F. App'x 207 (4th Cir. 2012).
The court takes judicial notice of the records in the petitioner's criminal case in the District of South Carolina at case number 7:10-cr-00429-BHH-1 as well as collateral attacks on his sentence filed in the United States District Court for the Northern District of Alabama, the District of South Carolina, and the Fourth Circuit Court of Appeals. See Phillips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts "may properly take judicial notice of matters of public record."); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ("We note that 'the most frequent use of judicial notice is in noticing the content of court records.'").
During the pendency of his § 2255 motions—discussed below—the petitioner, on May 23, 2018, filed a § 2241 action (seeking relief via the § 2255 savings clause) in the United States District Court for the Northern District of Alabama, arguing that his sentence was unconstitutional in light of Johnson v. United States, 135 S.Ct. 2551 (2015). See Asar v. United States of America, C/A No. 7:18-cv-00789-ACA-JHE (N.D. Ala.). The petition was dismissed because the petitioner did not bring the case into proper form. Id. at doc. 5.
On May 29, 2019, the petitioner filed another petition pursuant to § 2241, arguing that his sentence was unconstitutional because of Johnson. See Asar v. Warden Antonelli, C/A No. 6:19-cv-01549-HMH (D.S.C.). The petition was dismissed because the petitioner could not meet the savings clause test. Asar v. Warden Antonelli, C/A No. 6:19-cv-01549-HMH-KFM, 2019 WL 2746280 (D.S.C. June 3, 2019), Report and Recommendation adopted by 2019 WL 2743842 (D.S.C. July 1, 2019), aff'd 785 F. App'x 967 (4th Cir. 2019). The Fourth Circuit Court of Appeals affirmed the district court on November 26, 2019. Id.
Petitioner's § 2255 Motions
The petitioner has filed four separate § 2255 motions. The first, filed in 2012, argued ineffective assistance of counsel, that the petitioner did not have any predicate offenses for ACCA purposes, and the rule of lenity. See United States v. Asar, C/A No. 7:10-cr-00429-BHH-1, at doc. 83. The petitioner's § 2255 motion was denied on October 10, 2012. Id. at doc. 107, 2012 WL 4809145. The petitioner's appeal of his § 2255 motion was dismissed by the Court of Appeals on April 1, 2013. United States v. Asar, 516 F. App'x 256 (4th Cir. 2013), cert denied 570 U.S. 924 (2013).
On July 22, 2013, the petitioner sought permission from the Court of Appeals to file a second/successive § 2255 motion, which was denied on August 8, 2013. See In re Asar, C/A No. 13-314 (4th Cir. 2013). On March 11, 2016, the petitioner again sought permission from the Court of Appeals to file a second/successive § 2255 motion, which was granted on May 5, 2016, in light of the United States Supreme Court's decision in Johnson, which was held to be retroactive on collateral review by Welch v. United States, 136 S.Ct. 1257 (2016). See In re Asar, C/A No. 16-224 (4th Cir. May 5, 2016). The petitioner filed the authorized § 2255 motion on May 6, 2016. See United States v. Asar, C/A No. 7:10-cr-00429-BHH-1, at doc. 133. On July 19, 2017, the petitioner's motion was denied, finding that his prior convictions still counted as priors for purposes of the ACCA because they fall under the "force clause" of the United States Sentencing Guidelines ("USSG"). Id. at doc. 153. The petitioner appealed, his appeal was dismissed, and the Supreme Court denied certiorari. United States v. Asar, C/A No. 17-6977, 704 F. App'x 280 (4th Cir. 2017), cert denied 139 S.Ct. 281 (2018).
Then, on June 6, 2018, the petitioner filed a motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. United States v. Asar, C/A No. 7:10-cr-00429-BHH-1, at doc. 164. After the motion was denied, the petitioner filed a motion to amend his Rule 60(b) motion, which was also denied. Id. at docs. 165; 166; 173; 174. The petitioner's appeal of the denial was dismissed on March 1, 2019. United States v. Asar, 755 F. App'x 306 (4th Cir. 2019), reh'g and reh'g en banc denied. During this same time, the petitioner unsuccessfully sought a writ of mandamus from the Court of Appeals, arguing that the district court was unduly delaying ruling on his Rule 60(b) motion. See In re Asar, 755 F. App'x 266 (4th Cir. 2019).
On March 22, 2019, the petitioner sought permission from the Court of Appeals to file another successive § 2255 motion. See In re Asar, C/A No. 19-165 (4th Cir.). On March 28, 2019, the petitioner filed a third § 2255 motion, even though his request to file another § 2255 motion remained pending before the Court of Appeals. See United States v. Asar, C/A No. 7:10-cr-00429-BHH-1, at doc. 187. The Court of Appeals denied the petitioner's request on April 11, 2019. In re Asar, C/A No. 19-165 (4th Cir. 2019).
On August 8, 2019, the petitioner again sought permission from the Court of Appeals to file a successive § 2255 motion based upon Rehaif v. United States, 139 S. Ct. 2191 (2019), which was denied on August 29, 2019. See In re Asar, C/A No. 19-315, at doc. 6 (4th Cir. 2019). On August 19, 2019, while the request was pending before the Court of Appeals, the petitioner filed a fourth § 2255 motion, based upon Rehaif. Id. at doc. 201. After the motion was filed, on August 27, 2019, an order was issued instructing the United States Attorney to file an answer or other pleading to the petitioner's fourth § 2255 motion. See United States v. Asar, C/A No. 7:10-cr-00429-BHH-1, at doc. 202. On September 9, 2019, the United States filed a motion to dismiss, arguing that the motion was successive. Id. at doc. 210. To date, the petitioner's third and fourth § 2255 motions remain pending (along with corresponding motions to dismiss). Id. at docs. 187; 191; 201; 210.
Petitioner's Present Action
Here, the petitioner seeks habeas relief pursuant to 28 U.S.C. § 2241, claiming that his conviction is unconstitutional in light of Rehaif (doc. 1 at 6-7). For his relief, the petitioner requests that this court reverse his conviction or order that he be re-sentenced (id. at 7).
STANDARD OF REVIEW
The undersigned has reviewed the petition pursuant to the Rules Governing Section 2254 Cases in the United States District Courts; the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214; and other habeas corpus statutes. As a pro se litigant, the petitioner's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The mandated liberal construction means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. However, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
The petitioner filed this action pursuant to 28 U.S.C. § 2241 (doc. 1). Because the petitioner is incarcerated in the District of South Carolina and he names the warden of FCI Bennettsville as the respondent, his § 2241 petition is properly filed in this Court. Liberally construing the petitioner's allegations, the petitioner seeks to utilize the § 2255 savings clause test in order to attack the validity of his federal sentence in light of Rehaif via the present § 2241 action (doc. 1). As set forth in more detail below, because of the two pending § 2255 motions in the petitioner's criminal case, as well as the petitioner's failure to meet the savings clause test, the undersigned recommends dismissing the petition without prejudice and without requiring the respondent to file an answer or return.
Pending Matters in the Petitioner's Criminal Case
As an initial matter, as noted above, the petitioner currently has two § 2255 motions pending in his criminal case. See United States v. Asar, C/A No. 7:10-cr-00429-BHH-1, at docs. 187; 201. The petitioner's fourth § 2255 motion, filed on August 19, 2019, asserts that he is due relief based upon Rehaif, as alleged herein. Id. at doc. 201. Efficient judicial administration generally requires the federal courts to avoid duplicative federal legislation. See Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). Generally, a case pending in federal court "may be dismissed for reasons of wise judicial administration whenever it is duplicative of a parallel action already pending in another federal court." Nexsen Pruet, LLC v. Westport Ins. Corp., C/A No. 3:10-cv-00895-JFA, 2010 WL 3169378, at *2 (D.S.C. Aug. 5, 2010) (internal quotation marks omitted) (quoting Motley Rice, LLC v. Baldwin & Baldwin, LLP, 518 F. Supp. 2d 688, 697 (D.S.C. 2007)). Suits are considered parallel if "substantially the same parties litigate substantially the same issues in different forums." New Beckley Mining Corp. v. Int'l Union, United Mine Workers of Am., 946 F.2d 1072, 1073 (4th Cir. 1991) (citing LaDuke v. Burlington N. R.R., 879 F.2d 1556, 1559 (7th Cir. 1989)). As noted, in the petitioner's criminal case, there are two § 2255 motions, one of which seeks relief based upon Rehaif. As such, judicial efficiency supports dismissal of the instant action in light of the petitioner's pending § 2255 motions.
The Petitioner cannot meet the Savings Clause Test
As affirmed in Wheeler, the § 2255 savings clause test is jurisdictional. United States v. Wheeler, 886 F.3d 415, 426 (4th Cir. 2018). The court may sua sponte raise subject matter jurisdiction, and the Court of Appeals has held that if a petitioner cannot meet the savings clause requirements, then the § 2241 petition "must be dismissed for lack of jurisdiction." Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010). Because the § 2255 savings clause is a jurisdictional requirement, an analysis of whether the petitioner meets the savings clause test is appropriate for initial review under § 1915.
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 at 807 (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); Jones, 226 F.3d at 333. Accordingly, the petitioner cannot challenge his federal conviction and 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, as applied here, the petitioner's § 2241 action is barred unless he can demonstrate that the relief available to him under § 2255 is inadequate or ineffective. The petitioner asserts that he cannot seek relief under § 2255 because Rehaif represents a change in the statutory law and not constitutional law (doc. 1 at 4). The petitioner has also been unsuccessful at seeking permission to file a successive § 2255 motion based upon Rehaif. See In re Asar, C/A No. 19-315, at doc. 6 (4th Cir. 2019). 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).
Although the petitioner asserts herein that § 2255 is inadequate or ineffective to bring his Rehaif claim, the petitioner filed a § 2255 motion based upon Rehaif, which, as noted above, remains pending. See United States v. Asar, C/A No. 7:10-cr-00429-BHH-1, at doc. 201.
To trigger the "savings clause" of § 2255(e) and proceed under § 2241, the petitioner must meet the savings clause test as contemplated in United States v. Wheeler, 886 F.3d 415 (challenges to sentences) or In re Jones, 226 F.3d 328 (challenges to convictions).
In In re Jones, the Court of Appeals held that in order to meet the savings clause under § 2255 when contesting the underlying validity of a federal criminal conviction, and seek relief under § 2241, 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 gate-keeping provisions of § 2255 because the new rule is not one of constitutional law.In re Jones, 226 F.3d 333-34. Here, the petitioner's allegations do not satisfy the In re Jones requirements because there are no allegations that the conduct for which the petitioner was convicted is no longer criminal due to a change in the law. Here, the crime to which the petitioner pled guilty, being a felon in possession of a weapon, remains a criminal offense. The petitioner argues, as noted, that his conviction is no longer valid based upon Rehaif (doc. 1). In Rehaif, the Supreme Court held that the Government must prove both that a defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm. Rehaif, 139 S. Ct. at 2200. The requirement set forth in Rehaif, however, was in the context of a jury trial. Id. at 2195. In the instant case, the petitioner pled guilty to being a felon in possession of a weapon—thus admitting all the facts essential to sustain his conviction under § 922(g). See United States v. Broce, 488 U.S. 563, 569 (1989) (noting that a "plea of guilty and the ensuing conviction comprehend all the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence"); United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993) (noting that a "knowing, voluntary, and intelligent plea to an offense conclusively establishes the elements of the offense and the material facts necessary to support the conviction and waives non-jurisdictional defects, including those to an indictment). Accordingly, the petitioner cannot challenge the validity of his § 922(g) conviction under § 2241.
Liberally construed, the petitioner asserts that he is "actually innocent" based upon Rehaif; however, an actual innocence claim does not save the petition. Cognizable claims of "actual innocence" are rare, and must be based on "factual innocence not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998); see also United States v. Pettiford, 612 F.3d 270, 282 (4th Cir. 2010) (noting that to succeed on actual innocence grounds a petitioner must show that he "did not commit the crime of which he was convicted; this standard is not satisfied by a showing that a petitioner is legally, but not factually, innocent"). By making the argument of "actual innocence," the petitioner seeks to obtain review of his claims by showing that his case falls into the "narrow class of cases implicating a fundamental miscarriage of justice." Cornell v. Nix, 119 F.3d 1329, 1333 (8th Cir. 1997). In the present matter, the petitioner's actual innocence claim is facially inadequate because he has not "support[ed] his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995). Instead, the petitioner argues that, post Rehaif, his conviction is no longer valid (doc.1 at 6). However, review of the petitioner's petition to enter plea of guilty forecloses his argument that he is actually innocent based upon Rehaif, because he admitted to his status as a convicted felon, describing his plea of guilty as "I possessed a gun in a car and am a convicted felon." See United States v. Asar, C/A No. 7:10-cr-00429-BHH-1, at doc. 43 p. 8. The petitioner's presentence investigation report also forecloses the petitioner's Rehaif argument. Id. at doc. 48. In the report, not only are several of the petitioner's prior convictions detailed, but it also contains a factual summary of the petitioner's charges, including the following:
4. On February 12, 2010, a SC Highway Patrol Officer stopped a vehicle for a routine traffic stop due to the vehicle moving in an unsafe manner. . . .See United States v. Asar, C/A No. 7:10-cr-00429-BHH-1, at doc. 48 p. 3. Objections to the report and its contents were specifically overruled by the sentencing court. Id. at doc. 73. As such, the petitioner has not satisfied the requirements for a valid innocence claim relating to his § 922(g) conviction. Accordingly, the petitioner cannot use "actual innocence" to bypass the gatekeeping requirements of § 2255 and use the present § 2241 petition to seek § 2255 relief via that statute's savings clause.
5. When Union City Police Officers arrived on the scene, the trooper removed the front passenger and patted him down. The trooper then removed the back passenger . . . [who] was identified as [the petitioner]. . . . As the officer searched the vehicle, he found a RG model 15, .22 caliber derringer pushed down by the right side of the rear bucket seat. This was the location that [the petitioner] was sitting. [The petitioner] admitted to ownership of the gun and advised the trooper that he had previously done time for possessing a gun.
Secondly, to the extent the petitioner's request for re-sentencing could be liberally construed as a challenge to the sentence he received for his § 922(g) conviction, the petition does not meet the Wheeler test, which sets forth when a petitioner may meet the savings clause under § 2255 to contest his sentence. The Court of Appeals noted that:
[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 at 429 (citations omitted).
The petitioner, in the present matter, argues that his sentence is unconstitutional and should be vacated and set aside because of Rehaif (doc. 1). The petitioner, however, cannot meet the second Wheeler factor: that "subsequent to [his] direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review." Wheeler, 886 F.3d at 429.
The petitioner appealed his sentence on December 9, 2010. Thus, important to the Wheeler analysis in the instant action is the timing of the petitioner's prior § 2255 motions. The petitioner has filed a total of four § 2255 motions: the first and second motions were denied on the merits and the third and fourth motions remain pending. See United States v. Asar, C/A No. 7:10-cr-00429-BHH-1, at docs. 83; 133; 187; 201. The undersigned finds that the petitioner's second § 2255 motion, filed on May 6, 2016, acts as his "first" because it was decided on the merits after the petitioner received permission to file a successive petition from the Court of Appeals. Id. at doc. 133; see In re Asar, C/A No. 16-224 (4th Cir. May 5, 2016). Rehaif was decided by the Supreme Court on June 21, 2019. Rehaif, 139 S.Ct. 2191. As such, Rehaif was decided after the petitioner's appeal and first § 2255 motion. However, to date, Rehaif has not been held to be retroactive on collateral review. See In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019) (recognizing that Rehaif has not been recognized as retroactive on collateral review). Therefore, the petitioner cannot meet the second prong of Wheeler, because he has not shown that subsequent to his first § 2255 motion (2016) there was a change in the substantive law of the sentencing court that was deemed to apply retroactively on collateral review. Accordingly, the petitioner has failed to satisfy the elements of the Court of Appeal's Wheeler test to invoke the savings clause of § 2255 and challenge his sentence. Accordingly, the petitioner's § 2241 petition should be dismissed because the savings clause contained in § 2255 does not permit him to bring this § 2241 action.
RECOMMENDATION
Accordingly, it is recommended that the petitioner's § 2241 petition be dismissed without requiring the respondent to file a return. The petitioner's attention is directed to the important notice on the next page.
The petitioner cannot cure the deficiencies noted herein relative to the § 2255 savings clause, however, dismissal without prejudice is recommended because the Court of Appeals has held that dismissals for lack of subject-matter jurisdiction must be without prejudice. S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013).
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge February 10, 2020
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, Room 239
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).