Opinion
C/A No.: 1:19-1946-TMC-SVH
03-30-2020
Jamie Neil Capalbo, #07155-104, Petitioner, v. B.M. Antonelli, Warden of FCI Williamsburg, Respondent.
REPORT AND RECOMMENDATION
Jamie Neil Capalbo ("Petitioner"), proceeding pro se and in forma pauperis, filed this action seeking habeas corpus relief pursuant to 28 U.S.C. § 2241. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's motion for summary judgment. [ECF No. 19]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [ECF No. 20]. Petitioner filed a response on December 12, 2019. [ECF No. 22]. For the reasons that follow, the undersigned recommends granting the motion for summary judgment. I. Factual and Procedural Background
Petitioner is a federal inmate incarcerated at the Federal Correctional Institution ("FCI") in Williamsburg, South Carolina. [ECF No. 1 at 1]. On May 5, 2015, Petitioner pleaded guilty in the Southern District of Florida to violations of 21 U.S.C. §§ 841(a)(1), 846 (count one), and 18 U.S.C. §§ 922(g)(1) and 924(e) (count four). United States of America v. Capalbo, No. 9:14-CR-80227-DMM-11 (S.D. Fla. 2014), ECF No. 606. Prior to sentencing, Petitioner was classified as an armed career criminal pursuant to the Armed Career Criminal Act ("ACCA"), based in part on previous convictions for robbery and aggravated assault under Florida law. Capalbo v. United States, 763 F. App'x 904 (11th Cir.), cert. denied, 140 S. Ct. 150 (2019). On July 17, 2015, Petitioner was sentenced to 180 months as to counts one and four, to be served concurrently. Capalbo at ECF No. 1172.
The court takes judicial notice of the records in Petitioner's criminal case. Courts "may properly take judicial notice of matters of public record." Phillips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009). "We note that the most frequent use of judicial notice . . . is in noticing the content of court records." Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (internal quotations and citation omitted).
Petitioner filed a 28 U.S.C. § 2255 motion to vacate his sentence to challenge his sentencing enhancement under the ACCA that was denied by the Southern District of Florida. Capalbo, 763 F. App'x 904. Petitioner appealed the denial, and the Eleventh Circuit affirmed, stating "Capalbo's claims that his Florida robbery and battery offenses are not violent felonies for ACCA purposes are foreclosed by binding precedent." Id.
Petitioner filed the instant § 2241 petition challenging the validity of his conviction or sentence as imposed and seeking a writ of habeas corpus. [ECF No. 1 at 1]. First, Petitioner argues his state conviction for aggravated assault pursuant to Fla. Stat. § 784.021 no longer qualifies as an ACCA predicate. [ECF No. 1-2 at 3-4]. Second, citing the Supreme Court's recent decision in Rehaif v. United States, 129 S. Ct. 2191 (2019), he claims his § 922(g) conviction is no longer valid because the government failed to prove he "knew he was part of a class of individuals who are precluded from possessing firearms." Id. at 10.
Petitioner requests the court grant the writ of habeas corpus and order proper relief. Id. at 10. II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, this petition has been carefully reviewed pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. 104-132, 110 Stat. 1214, and other habeas corpus statutes. 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 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. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean 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).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
B. Analysis
A petition for habeas corpus relief brought pursuant to 28 U.S.C. § 2255 is filed in the sentencing court and a petition brought pursuant to 28 U.S.C. § 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). "[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)). Challenges to the execution of a sentence are properly raised in a § 2241 petition. Vial, 115 F.3d 1194 n.5.
Section 2255 contains a savings clause that "provides that an individual may seek relief from an illegal detention by way of a traditional 28 U.S.C. § 2241 habeas corpus petition, if he or she can demonstrate that a § 2255 motion is 'inadequate or ineffective to test the legality of his detention.'" United States v. Wheeler, 886 F.3d 415, 419 (4th Cir. 2018); see also 28 U.S.C. § 2255(e) ("An application for a writ of habeas corpus on 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."). The Fourth Circuit has joined the Second, Sixth, Eighth, Ninth, and Eleventh Circuits in finding the savings clause requirements are jurisdictional. Id. at 424 n.5, 425. If the savings clause requirements are not met, the court cannot consider the petition.
The Fourth Circuit has found § 2255 inadequate and ineffective to test the legality of a conviction when:
(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; andJones, 226 F.3d at 333-34; see also Wheeler, 886 F. 3d at 429 (providing a four-part test to determine whether section 2255 is inadequate and ineffective to test the legality of a sentence, including requiring a change in settled substantive law).
(3) the prisoner cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law.
"In evaluating substantive claims under the savings clause . . . we look to the substantive law of the circuit where a defendant was convicted." Hahn v. Moseley, 931 F.3d 295, 301 (4th Cir. 2019) (citing In re Davenport, 147 F.3d 605, 611-12 (7th Cir. 1998); Eames v. Jones, 793 F. Supp. 2d 747, 750 (E.D.N.C. 2011)).
Because Petitioner was convicted in the Southern District of Florida, the undersigned has considered the substantive law of the Eleventh Circuit. Petitioner argues the Supreme Court's decision in Rehaif renders his conviction and sentence invalid. The Eleventh Circuit has explained Rehaif "did not announce a 'new rule of constitutional law,' but, instead, clarified that, in prosecuting an individual under 18 U.S.C. § 922(g) and 18. U.S.C. § 924(a)(2)—which provides that anyone who 'knowingly violates' § 922(g) can be imprisoned for up to 10 years—the government must prove that the defendant knew he violated each of the material elements of § 922(g)." In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019) (citing Rehaif, 139 S. Ct. at 2195-96); see also In re Wright, 942 F.3d 1063, 1064-65 (11th Cir. 2019) (stating Rehaif "clarified the requirements for prosecuting an individual under 18 U.S.C. §§ 922(g) and 924(a)(2)"). "Moreover, even if Rehaif had announced a new rule of constitutional law, as Palacios concedes in his application, it was not made retroactive to cases on collateral review by the Supreme Court." Id. (citing Tyler v. Cain, 533 U.S. 656, 661-66 (2001)); see also Wright, 942 F.3d at 1065.
To the extent Petitioner claims his prior convictions for robbery and aggravated assault are not predicate crimes of violence to qualify him as an armed career criminal under the ACCA [see, e.g., ECF No. 1-2 at 3-6; ECF No. 22 at 7], these claims cannot proceed under the savings clause as Petitioner cannot establish a substantive change in law. The Eleventh Circuit affirmed the denial of his 2255 motion raising the same claim as to his conviction for robbery, Capalbo, 763 F. App'x 904, holding that binding Supreme Court precedent precluded this argument, Stokeling v. United States, 139 S. Ct. 544 (2019). The Eleventh Circuit likewise held the same as to his conviction for aggravated assault. See Capalbo, 763 F. App'x 904 (citing Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328, 1337-38 (11th Cir. 2013), abrogated on other grounds by Johnson v. U.S., 135 S.Ct. 2551, 2563 (2015)) ("We have held that aggravated assault in violation of section 784.021 of the Florida Statutes constitutes a violent felony under the ACCA's elements clause."). Although Petitioner argues otherwise [ECF No. 1-2 at 4 (citing United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012)], as stated above, "[i]n evaluating substantive claims under the savings clause . . . we look to the substantive law of the circuit where a defendant was convicted." Hahn, 931 F.3d at 301. Florida robbery and aggravated assault remain crimes of violence under current Eleventh Circuit authority.
Palacios and Wright filed petitions pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(a), "seeking [orders] authorizing the district court to consider [] second or successive motion[s] to vacate, set aside, or correct [their] federal sentences." Palacios, 931 F.3d at 1314, Wright, 942 F.3d at 1064. Unlike Petitioner, Palacios and Wright did not file petitions pursuant to 28 U.S.C. § 2241.
Application of the Jones test in light of the Eleventh Circuit's decisions in Palacios and Wright indicates Petitioner can satisfy the first and third prongs as to his conviction, because he can show (1) settled law established the legality of his conviction at the time of conviction and (2) the Supreme Court did not announce a new rule of constitutional law in Rehaif.
Courts in the Eleventh Circuit have declined to directly address, in the context of petitions brought pursuant to 28 U.S.C. § 2241, whether Rehaif changed the substantive law such that the conduct of which the prisoner was convicted was deemed not to be criminal. See Tannehiil v. Romero, C/A No. 1:19-524-MHH-JHE, 2020 WL 58458 (N.D. Ala. Jan. 6, 2020); Thomas v. Warden, FCC Coleman, C/A No. 5:19-411-OC-39PRL, 2019 WL 6728257 (M.D. Fla. Dec. 11, 2019). This appears to be a result of the Eleventh Circuit's limited application of the savings clause in petitions brought pursuant to § 2241. See McCarthan v. Director of Goodwill Industries-Suncoast, Inc., 851 F.3d 1076, 1086, 1090 (11th Cir. 2017) (providing if a petitioner could have raised his claim in a § 2255 motion, even if that claim would have been unsuccessful, the remedy is adequate and effective); see also Thomas, 2019 WL 6728257, at *2 (stating "[t]o the extent Petitioner argues a change in the law provides a new theory by which he may challenge his conviction, McCarthan forecloses his argument that relief under § 2255 was inadequate"); Tannehill, 2020 WL 58458, at *2 (providing "[e]ven if Rehaif could somehow apply to [the petitioner's] 2008 sentence . . . [he] must raise his argument in a § 2255 motion, not in a § 2241 habeas petition because [he] challenges the fact of his conviction and sentence and not the execution of the sentence.").
In McCarthan, the court explained:
Allowing access to the saving[s] clause to bring ordinary sentencing challenges disregards Congress's decision to bifurcate the system of collateral review between challenges to a prisoner's sentence and challenges to the execution of a prisoner's sentence. Limiting the saving[s] clause to claims that are not cognizable or that cannot be remedied under section 2255 respects the entire system of federal collateral review . . . . The saving[s] clause has meaning because not all claims can be remedied by Section 2255. A prisoner sentenced by a federal court, for example, may file a petition for a writ of habeas corpus to challenge the execution of his sentence, such as the deprivation of good-time credits or parole determinations . . . . The saving[s] clause also allows a prisoner to bring a petition for a writ of habeas corpus when the sentencing court is unavailable. Other circuits have held that a prisoner may file a petition for a writ of habeas corpus if his sentencing court has been dissolved . . . . Or, as our sister circuit has held, perhaps practical considerations (such as multiple sentencing courts) might prevent a petitioner from filing a motion to vacate . . . . But only in those kinds of limited circumstances is [the remedy by motion] inadequate or ineffective to test the legality of his detention.Id. at 1092-93 (internal citations and quotations omitted). Although it is appropriate to apply the Fourth Circuit's test in Jones to analyze whether the savings clause confers jurisdiction pursuant to 28 U.S.C. § 2241, the undersigned notes that the Eleventh Circuit's limited application of the savings clause to § 2241 petitions would have prevented Petitioner from proceeding if he were incarcerated in the Eleventh Circuit.
Although the Eleventh Circuit has not directly addressed the second prong of the Jones test, its explanations in Palacios and Wright suggest that Rehaif addressed the government's burden of proof in prosecuting cases under § 922(g). See Palacios, 931 F.3d at 1315; Wright at 1064-65. Thus, Rehaif only deems the conduct of which a defendant was convicted to not be criminal if the government failed to meet its burden of proof.
Multiple courts in this district, in analyzing Eleventh Circuit law in the context of Rehaif and § 2241 habeas petitions, have so held. See Hughes v. Mackelburg, C/A No. 8:19-03390-HMH-JDA, 2020 WL 1429351, at *2 (D.S.C. Mar. 24, 2020) ("Thus, Rehaif does not apply if the government met its burden of proof"); Moss v. Dobbs, C/A No. 8:19-02280-JMC-JDA, 2019 WL 7284989, at *7 (D.S.C. Sept. 23, 2019), report and recommendation adopted, C/A No. 8:19-02280-JMC, 2019 WL 5616884 (D.S.C. Oct. 31, 2019) ("In light of Petitioner's stipulation at trial and the court's instructions to the jury, Petitioner cannot meet the requirements of the savings clause test to show that Rehaif effected a substantive law change that has made the conduct of which he was convicted not to be criminal."); Allen v. Dobbs, C/A No. 1:20-321-HMH-SVH, 2020 WL 907513, at *4 (D.S.C. Jan. 31, 2020), report and recommendation adopted, C/A No. 1:2000-321-HMH-SVH, 2020 WL 901407 (D.S.C. Feb. 25, 2020) (same). Notwithstanding this case law, the undersigned notes, here, Respondent argues all three Jones prongs have been met. [ECF No. 19-2 at 11]. However, Respondent further argues Petitioner is not entitled to relief because "the Government easily meets its burden here" to prove "that the defendant possessed a firearm and also knew that he belonged to the class of prohibited persons," as discussed more below. Id. at 13.
The undersigned's review of the record demonstrates that, unlike the petitioner in Rehaif, who proceeded to trial and was convicted of violating 18 U.S.C. § 922(c), Petitioner pleaded guilty. Capalbo at ECF No. 606. "Post Rehaif, '[c]ourts considering § 2255 motions have declined to vacate a criminal defendant's sentence when he has pleaded guilty to the offense.'" United States v. Bain, C/A No. 5:18-029-KKC-MAS-1, 2020 WL 406682, at *2 (E.D. Ky. Jan. 7, 2020) (quoting Malone v. United States, C/A No. 1:14-438, 2019 WL 7049805, at *3 (N.D. Ohio Dec. 23, 2019), adopted by 2020 WL 406385 (E.D. Ky. Jan. 24, 2020); see also Thompson v. United States, C/A No. 4:19-2310-RLW, 2019 WL 5727976, at *4 (E.D. Mo. Nov. 5, 2019) ("Because movant plead guilty . . . and his case never went to trial, the burden of proof for the government had the case gone to trial, is irrelevant"); Brewster, 2019 WL 5076404, at *7-8 ("Petitioner's representations to the Court during the plea proceeding establish that his plea was knowingly and voluntarily made. As such, the Petitioner is not actually innocent under Rehaif."), appeal docketed, No. 19-7759 (4th Cir. Dec. 2, 2019); United States v. Anderson, C/A No. 2:10-113-LSC-JHE, 2019 WL 3806104, at *2 (N.D. Ala. July 26, 2019), adopted by 2019 WL 3805998 (N.D. Ala. Aug. 13, 2019)). "While Rehaif dissects the requirements to sustain a jury conviction under § 922(g), 'because Petitioner pleaded guilty [ . . . ] this contention is moot.'" Id. (quoting Malone, 2019 WL 7049805, at *3). Thus, if the court accepts the reasoning in the cases cited above, Petitioner fails to meet the second prong of the Jones test.
In Brewster v. United States, C/A No. 3:19-386-MOC, 2019 WL 5076404, at *8 (W.D.N.C. Oct. 9, 2019), appeal docketed, No. 19-7759 (4th Cir. Dec. 2, 2019), the court summarized the facts in Rehaif as follows:
The petitioner in Rehaif was an alien who entered the country on a nonimmigrant student visa to attend university. He received poor grades and the university dismissed him. The university told the petitioner that his "immigration status" would be terminated unless he transferred to a different university or left the country. [139 S. Ct.] at 2194. After the government learned of the petitioner's visit to a firing range, where he shot two firearms, the petitioner was prosecuted for possessing firearms as an alien unlawfully in the United States in violation of § 922(g) and § 924(a)(2). The case went to trial. The judge instructed the jury, over petitioner's objection, that the "United States is not required to prove" that the petitioner "knew he was illegally or unlawfully in the United States." Id. []. The jury found the petitioner guilty and he was sentenced to 18 months' imprisonment. Id.
Here, Petitioner pleaded guilty, in part, to violations of 18 U.S.C. §§ 922(g)(1) and 924(e). Under the former statute, it is unlawful for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year to possess a firearm or ammunition. Under the latter statute, anyone who violates § 922(g) "and has three previous convictions. . . for a violent felony or serious drug offense" shall be fined and imprisoned for not less than 15 years. Additionally, 18 U.S.C. § 924(a)(2), adds that anyone who "knowingly violates" § 922 shall be fined or imprisoned for up to 10 years. "[T]he word 'knowingly' applies both to the defendant's conduct and to the defendant's status." Rehaif, 139 S. Ct. at 2194. To convict a defendant under § 922(g), the government must "show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it." Id.
The ACCA stipulates that any crime punishable by a term of imprisonment exceeding one year that "has as an element the use, attempted use, or threatened use of physical force against the person of another" is a violent felony for which a 15-year minimum sentence applies. 18 U.S.C. § 924(e)(2)(B)(i).
On May 5, 2015, Petitioner appeared before United States Magistrate Judge James M. Hopkins ("Judge Hopkins") for a change of plea hearing. Capalbo at ECF No. 605. Petitioner announced he wished to enter a plea of guilty to counts one and four of the superseding indictment. During the plea colloquy, Judge Hopkins asked Petitioner if he "fully understand[s his] plea agreement," including that he was pleading guilty to being a felon in possession of a firearm as an armed career criminal, to which Petitioner responded affirmatively. Id. at ECF No. 1166, Plea Tr. 8:4-7, 9:16-10:4. Additionally, the government presented to the court a Factual Basis in support of the change of plea. Id. at ECF No. 1166, Plea Tr. 16:22-18:3. In the Factual Basis, the government included a direct quote from Petitioner's April 14, 2014 post-arrest statement in which he admitted his prohibited status, "I'm a convicted felon . . . ." [ECF No. 19-2 at 3]. After a thorough and complete plea colloquy during which Petitioner affirmed that the government's Factual Basis was true and correct, the Court accepted Petitioner's guilty plea to counts one and four of the superseding indictment. Capalbo at ECF No. 1166, Plea Tr. 16:22-18:3.
The Factual Basis additionally indicates Petitioner may not have been aware, for example, that he was "not allowed to go to a shooting range and shoot a gun." [ECF No. 19-2 at 2-3]. However, the government must only establish a defendant knew of his prohibited status, not that a defendant knew that he was specifically prohibited from possessing a firearm. See Rehaif, 139 S. Ct. at 2194. Thus, the court rejects Petitioner's argument that his post-arrests statements are insufficient to carry Respondent's burden in this instance, particularly where Petitioner makes no argument he did not know of his prohibited status. [See ECF No. 22 at 5].
Here, Petitioner does not argue he was unaware he had prior felony convictions, and the record indicates he knew he was previously convicted of a crime that was punishable for a term exceeding one year because he pleaded guilty to being a felon in possession of a firearm as an armed career criminal in violation of 18 U.S.C. § §922(g)(1) and 924(e). In addition, Petitioner affirmatively admitted his status as a convicted felon. To the extent the government retains a burden to prove the elements of a § 922(g) violation where a defendant pleads guilty, the government met its burden. Therefore, Petitioner does not meet the second prong of the Jones test, based on the Eleventh Circuit's explanation in Palacios and Wright, because the conduct of which Petitioner was convicted continues to be deemed criminal based on the government's meeting of its burden of proof.
Because Petitioner has not met the savings clause requirements set forth in Jones, the court does not have jurisdiction pursuant to 28 U.S.C. § 2241 to entertain his challenge to the validity of his conviction and sentence. Therefore, the undersigned recommends the court dismiss the petition without prejudice. III. Conclusion and Recommendation
"A dismissal for . . . [a] defect in subject matter jurisdiction [] must be one without prejudice, because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits." Platts v. O'Brien, 691 F. App'x 774 (4th Cir. 2017) (citing S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013).
For the foregoing reasons, the undersigned recommends the district judge grant Respondent's motion for summary judgment [ECF No. 19] and dismiss the petition without prejudice for lack of jurisdiction.
IT IS SO RECOMMENDED. March 30, 2020
Columbia, South Carolina
/s/
Shiva V. Hodges
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
901 Richland Street
Columbia, South Carolina 29201
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).