Opinion
C/A No.: 5:18-1669-RMG-KDW
04-02-2019
Marcellus Raynard Brooks, Petitioner, v. Warden Travis Bragg, Respondent.
REPORT AND RECOMMENDATION
Marcellus Raynard Brooks ("Petitioner"), proceeding pro se, filed this petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner is a federal inmate incarcerated at Federal Correctional Institution Bennettsville, in the custody of the Federal Bureau of Prisons. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's Motion to Dismiss. ECF No. 19. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. ECF No. 20. After obtaining three extensions, Petitioner failed to file a response. The court issued an order on January 29, 2019, directing Petitioner to advise the court whether he wished to continue with his case and to file a response to the motion by February 12, 2019. ECF No. 32. Petitioner filed a response on February 14, 2019. ECF No. 35.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that the court grant Respondent's Motion to Dismiss. I. Factual and Procedural Background
On October 13, 2009, Petitioner entered a guilty plea in the United States District Court for the District of South Carolina to being a felon in possession of a firearm. United States v. Brooks, Cr. No.: 2:09-468-PMD-1 (Feb. 23, 2011) ("Brooks I"), ECF No. 47. On February 23, 2011, the court entered judgment against Petitioner and sentenced him to 210 months' imprisonment. Id., ECF No. 74. Petitioner filed a notice of appeal on March 1, 2011, and the Fourth Circuit Court of Appeals dismissed the appeal on March 28, 2012. Id., ECF Nos. 81, 99. Petitioner did not file a motion to vacate judgment under 28 U.S.C. § 2255. ECF No. 1-1 at 2.
The court takes judicial notice of Petitioner's prior cases. See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ("The most frequent use of judicial notice of ascertainable facts is in noticing the content of court records.") (citation omitted).
Petitioner filed the instant habeas petition seeking resentencing arguing that a recent change in substantive law made his armed career offender enhancement unlawful. ECF Nos. 1; 1-1. II. Discussion
A. Standard on Motion to Dismiss
Dismissal is appropriate under Fed. R. Civ. P. 12(b)(1) where the court lacks subject-matter jurisdiction. A motion to dismiss under Rule 12(b)(1) examines whether a complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to "regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The court is "not required to accept as true the legal conclusions set forth in a plaintiff's complaint." Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Indeed, the presence of a few conclusory legal terms does not insulate a complaint from dismissal when the facts alleged in the complaint cannot support the legal conclusion. Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
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 district 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). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Merriweather v. Reynolds, 586 F. Supp. 2d 548, 554 (D.S.C. 2008). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
Petitioner cites to the holding in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) and contends his sentence is unlawful because the three drug convictions used to enhance his sentence did not have aggravating factors that subjected him to punishment above an eight-year cap. ECF No. 1-1 at 2-6. Petitioner argues his three convictions are therefore not serious drug offenses and cannot be used for an armed career criminal enhancement. Id. at 6.
Respondent seeks dismissal of the instant petition contending Petitioner has not filed a § 2255 motion and therefore cannot demonstrate § 2255 is inadequate or ineffective to challenge his sentence. ECF No. 19-1 at 7-11. In response, Petitioner argues any § 2255 motion he could file would be untimely which proves that § 2255 is inadequate. ECF No. 35 at 1-2.
"[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 as follows:
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); see also Rice, 617 F.3d at 807 (finding court lacked jurisdiction over § 2241 petition outside savings clause).
Recently, the Fourth Circuit established an updated savings clause test under § 2255 for a petitioner who contests his sentence. U.S. v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018). The court held that § 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.Id. at 429.
The undersigned finds the court lacks jurisdiction to consider Petitioner's § 2241 petition, as he cannot show that § 2255 is inadequate to test the legality of his sentence. Because Petitioner never filed a § 2255 motion to vacate, he is not able to satisfy the second prong of Wheeler showing that settled substantive law changed "subsequent to [his] direct appeal and first § 2255 motion." To the extent Petitioner argues that his § 2255 remedy is inadequate or ineffective because his time to file a § 2255 motion has expired, this argument is without merit. The Fourth Circuit has unequivocally held that "§ 2255 is not inadequate or ineffective merely because an individual is unable to obtain relief under that provision." In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000); In re Vial, 115 F.3d at 1194 n.5 (finding that a procedural impediment to § 2255 relief, such as the statute of limitations or the rule against successive petitions, does not render § 2255 review "inadequate" or "ineffective"). The undersigned finds Petitioner fails to meet the Wheeler standard to show that § 2255 is inadequate or ineffective to test the legality of his sentence. Because Petitioner's claims cannot be addressed under § 2241, the undersigned recommends Respondent's motion to dismiss be granted. III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends that the court grant Respondent's Motion to Dismiss, ECF No. 19, deny the petition for writ of habeas corpus, and dismiss the petition without prejudice.
IT IS SO RECOMMENDED. April 2, 2019
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and 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 2317
Florence, South Carolina 29503
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).