Opinion
C/A No.: 8:18-cv-01414-HMH-JDA
07-16-2019
Chester Lee Barnes, Jr., Petitioner, v. M. Travis Bragg, Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court on Respondent's second motion to dismiss. [Doc. 44.] Petitioner is a federal prisoner, proceeding pro se, who seeks relief under 28 U.S.C. § 2241. 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., this magistrate judge is authorized to review the instant habeas Petition and submit findings and recommendations to the District Court. Having carefully considered the parties' submissions and the record in this case, the Court recommends that Respondent's motion to dismiss be granted.
BACKGROUND
Subsequent to a guilty plea, Petitioner was sentenced in the United States District Court for the Eastern District of North Carolina on July 29, 2008 to 320 months' imprisonment for violation of 21 U.S.C. § 841(a)(1)—intent to distribute more than five grams of cocaine base—and violation of 18 U.S.C. § 924(c)(1)(A)—possession of a firearm in furtherance of a drug trafficking crime. [E.D.N.C. Case No. 5:07-cr-00351-BO-1, Doc. 31]. Specifically, Petitioner was sentenced to consecutive sentences of 260 months' imprisonment for his conviction for possession with intent to distribute more than five grams of cocaine and sixty months' imprisonment for possession of a firearm in furtherance of a drug trafficking crime. [Id.] Petitioner did not file a direct appeal. On February 9, 2012, Petitioner filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. [Id., Doc. 33.] The motion was dismissed as untimely. [Id., Doc. 46.] Subsequently, the Fourth Circuit Court of Appeals affirmed the dismissal of Petitioner's § 2255 motion. United States v. Barnes, 509 F. App'x 279 (4th Cir. 2013) (unpublished decision).
It is appropriate for this Court to take judicial notice of Petitioner's prior cases. See Philips v. Pitt Cty. Mem'l 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.'").
On July 16, 2015, Petitioner filed a § 2241 Petition in this Court. [D.S.C. Case No. 8:15-cv-02842-HMH-JDA, Doc. 1.] Petitioner challenged a career offender sentence enhancement imposed under § 4B1.1 of the United States Sentencing Guidelines and alleged that one of his prior convictions used to enhance his sentence no longer qualifies as a predicate offense in light of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). [D.S.C. Case No. 8:15-cv-02842-HMH-JDA, Doc. 1 at 6-10.] The Court dismissed the § 2241 Petition on the basis that Petitioner failed to establish the requirements of § 2255's savings clause because "the savings clause does not apply to petitioners challenging only their sentence." Barnes v. Bragg, 8:15-cv-02842-HMH-JDA, 2016 WL 4087360, at *4 (D.S.C. July 12, 2016), Report and Recommendation Adopted by 2016 WL 4040295 (July 28, 2016), affirmed by Barnes v. Bragg, 696 F. App'x 629 (4th Cir. 2017).
Petitioner filed this Petition for writ of habeas corpus on May 18, 2018. [Doc. 1.] In Petitioner's current § 2241 Petition, Petitioner again contends that he was incorrectly sentenced as a career offender under the advisory guidelines because at least some of his predicate state convictions that qualified him as a career offender no longer qualify as predicate offenses in light of Simmons. [Doc. 1.] On July 19, 2018, Respondent filed a motion to dismiss the Petition. [Doc. 9.] The next day, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Petitioner was advised to respond to the motion and of the possible consequences if he failed to adequately respond. [Doc. 10.] Petitioner filed a response in opposition to the motion to dismiss on August 20, 2018. [Doc. 12.]
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). In this case, construing the filing date in the light most favorable to Petitioner, this action was filed on May 18, 2018. [Doc. 1-1 at 1 (envelope stamped by correctional institution on May 18, 2018).]
On October 3, 2018, the undersigned issued a Report and Recommendation recommending that the Petition be dismissed on the basis that he could not satisfy the savings clause test under 28 U.S.C. § 2255(e), pursuant to United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), the satisfaction of which was necessary in order for Petitioner to proceed under § 2241. [Doc. 14.] Then, on November 20, 2018, the Honorable Henry M. Herlong, Jr., issued a decision declining to adopt the Report and Recommendation, explaining:
After a thorough review of the record and the applicable law, the court is unable to determine whether the jurisdictional
savings clause requirements of 28 U.S.C. § 2255(e) have been satisfied without additional information. The court cannot determine the applicability of Simmons on the current record before the court. Specifically, [Petitioner's] Presentence Investigation Report and the guilty plea and sentencing hearings transcripts are currently unavailable to conduct an analysis of whether the issues raised by [Petitioner] present an error "sufficiently grave to constitute a fundamental defect." See Wheeler, 886 F.3d at 429.[Doc. 21.] Accordingly, Judge Herlong dismissed the motion to dismiss without prejudice, appointed a federal public defender to represent Petitioner, and ordered the parties to file supplemental briefing
addressing (1) the application of Wheeler's fundamental defect standard to sentences imposed under advisory guidelines, (2) the distinction, if any, between a "fundamental defect" in the context of a § 2255(a) motion and a § 2241 petition, (3) the application of United States v. Foote, 784 F.3d 931 (4th Cir. 2015), to a § 2241 petition, (4) development of the record, including the Presentence Investigation Report and hearing transcripts, and (5) any other issues the parties believe will aid the court.[Doc. 21 at 2-3.] Judge Herlong also ordered the parties "to file the Presentence Investigation Report under seal and hearing transcripts as attachments to any supplemental briefs." [Id. at 2.]
On April 5, 2019, Petitioner filed a supplement to his Petition. [Doc. 41.] The supplement "acknowledges that it appears [Foote] may control the outcome of this matter" but argues that "Foote was wrongly decided" and alternatively contends that "[t]o the extent . . . Foote controls the outcome of this [P]etition, Petitioner asserts a right to relief in the alternative under a writ of audita querela, as his sentence is illegal after [Simmons]." [Doc. 41 at 1.] Petitioner attached to the supplement his plea agreement, his Presentence Investigation Report under seal, and a transcript of his sentencing hearing. [Docs. 41-1; 41-2; 41-3; 42.] On May 6, 2019, Respondent filed a response in opposition to the supplemental petition and a second motion to dismiss the Petition. [Docs. 43; 44.] Petitioner filed a response opposing the second motion to dismiss on May 20, 2019. [Doc. 46.] The motion is now ripe for review.
Petitioner noted that "[t]he parties have been unable to obtain a copy of the transcript of [the plea] hearing." [Doc. 41 at 2 n.3.]
APPLICABLE LAW
Liberal Construction of Pro Se Petition
Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S.97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Motion to Dismiss Standard
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim should be dismissed if it fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should "accept as true all well-pleaded allegations and should view the [petition] in a light most favorable to the [petitioner]." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court "need not accept the legal conclusions drawn from the facts" nor "accept as true unwarranted inferences, unreasonable conclusions, or arguments." E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, a court may only rely on the allegations in the petition and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cnty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985).
With respect to well-pleaded allegations, the United States Supreme Court explained the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the [respondent] fair notice of what the . . . claim is and the grounds upon which it rests." While a [petition] attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a [petitioner's] obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the [petition] are true (even if doubtful in fact).550 U.S. 544, 555 (2007) (footnote and citations omitted); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004) ("[T]he pleading must contain something more . . . than a bare averment that the pleader wants compensation and is entitled to it or a statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.").
"A claim has facial plausibility when the [petitioner] pleads factual content that allows the court to draw the reasonable inference that the [respondent] is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a [respondent] has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556). The plausibility standard reflects the threshold requirement of Rule 8(a)(2)—the pleader must plead sufficient facts to show he is entitled to relief, not merely facts consistent with the [respondent's] liability. Twombly, 550 U.S. at 557 (quoting Fed. R. Civ. P. 8(a)(2)); see also Iqbal, 556 U.S. at 678 (Where a petition pleads facts that are merely consistent with a respondent's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'" (quoting Twombly, 550 U.S. at 557)). Accordingly, the plausibility standard requires a petitioner to articulate facts that, when accepted as true, demonstrate that the petitioner has stated a claim that makes it plausible the petitioner is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678).
DISCUSSION
Section 2241
"[I]t is well established that 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)). In contrast, a motion filed under § 2241 is typically used to challenge the manner in which a sentence is executed. See In re Vial, 115 F.3d at 1194 n.5. A petitioner cannot challenge his federal conviction and sentence under § 2241 unless he can satisfy 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). The United States Court of Appeals for the Fourth Circuit recently clarified that, under certain circumstances, a § 2255 motion may be deemed inadequate or ineffective to test the legality of a sentence so as to satisfy the § 2255 savings clause. United States v. Wheeler, 886 F.3d 415, 428 (4th Cir. 2018). The Fourth Circuit held that, to demonstrate that a § 2255 motion is inadequate or ineffective to test the legality of a sentence, a petitioner must establish the following criteria
(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.Id. at 429.
Here, Petitioner is unable to satisfy the fourth element of this test. On essentially the same facts that are now before the Court, the Fourth Circuit has held that an error in "sentencing a defendant pursuant to advisory Guidelines based on a career offender status that is later invalidated" does not rise to the level of a "fundamental defect" such that it could be cognizable under § 2255. United States v. Foote, 784 F.3d 931, 936, 940-43 (4th Cir. 2015) (holding that petitioner's career offender designation was not a fundamental defect when petitioner's prior state convictions had been vacated, petitioner was sentenced under advisory guidelines, and petitioner's sentence fell within the permissible statutory range). Indeed, in Wheeler itself, the Fourth Circuit noted its holding in Foote that "a Guidelines career offender designation later nullified by Simmons was not one of those errors" that could satisfy the "fundamental defect" element. Wheeler, 886 F.3d at 432 n.9. And, "[r]ecently, the Fourth Circuit and district courts therein have found that no fundamental defect exists under Wheeler for errors in originally valid sentences imposed pursuant to post-Booker advisory guidelines." Peacock v. Bragg, No. 2:18-1987-HMH-MGB, 2019 WL 1499270, at *4 (D.S.C. Apr. 5, 2019) (collecting cases). Petitioner, thus, has not raised a claim that may be presented in a § 2241 petition. He therefore fails to meet the requirements of § 2255's savings clause, and this Court lacks jurisdiction to consider Petitioner's § 2241 Petition.
Most prominently, after Judge Herlong issued his Order in this case, the Fourth Circuit issued a decision in which it noted, regarding a § 2241 petition that challenged a prisoner's preBooker career offender enhancement, that "Foote undoubtedly would bar [the] petition had [the petitioner] been sentenced under the advisory Guidelines." Lester v. Flournoy, 909 F.3d 708, 715 (4th Cir. 2018); see also Kornegay v. Warden, 748 F. App'x 513, 514 (4th Cir. 2019) (holding that Lester and Foote barred a § 2241 challenge to a sentence imposed under the advisory guidelines).
Because the Court concludes that the Petition should be dismissed on this basis, the Court declines to address the issue of whether the Petition is also barred by the waiver provision in Petitioner's plea agreement.
Writ of Audita Querela
Petitioner alleges that because Simmons applies retroactively, he is entitled to relief through a writ of audita querela if the Simmons issue cannot be addressed under any other post-conviction remedy. [Docs. 41 at 22-23; 46 at 8-9.] The Court disagrees.
"Writs of audita querela are used to challenge a judgment that was correct at the time rendered but which is rendered infirm by matters which arise after its rendition." United States v. Anderson, No. 0:04-353-CMC, 2018 WL 2336121, at *1 (D.S.C. May 2, 2018) (internal quotation marks omitted). However, such writs are "not available to a petitioner when other avenues of relief are available, such as a motion to vacate under § 2255." In re Moore, 487 F. App'x 109 (4th Cir. 2012). And "[i]t is of no consequence if a petitioner is precluded from filing a second or successive § 2255 claim by the provisions of the AEDPA or if the prisoner cannot bring a claim under § 2241." Moon v. United States, 6:06-cr-00638-GRA-1, 2012 WL 6212616, at *3 (D.S.C. Dec. 13, 2012); see United States v. Valdez-Pacheco, 237 F.3d 1077, 1080 (9th Cir. 2001) ("A prisoner may not circumvent valid congressional limitations on collateral attacks by asserting that those very limitations create a gap in the postconviction remedies that must be filled by the common law writs."). As the Seventh Circuit has explained, if the AEDPA's limitations foreclosed the use of 28 U.S.C. §§ 2241 and 2255 by federal prisoners, "it would be senseless to suppose that Congress permitted them to pass through the closed door simply by changing the number 2241 to 1651 [corresponding to the All Writs Act] on their motions." In re Davenport, 147 F.3d 605, 608 (7th Cir. 1998). Such is the case here where Petitioner has filed § 2255 and § 2241 petitions. That he is precluded under the provisions of the AEDPA from filing a second or successive § 2255 petition does not entitle him to audita querela relief. See Moon, 2012 WL 6212616, at *2-3.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Respondent's motion [Doc. 44] be GRANTED and that the Petition [Doc. 1] be DISMISSED.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge July 16, 2019
Greenville, South Carolina