Opinion
C. A. 8:20-cv-03269-SAL-JDA
10-29-2020
Melvin Christopher Carter, Petitioner, v. Warden of Bennettsville Federal Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE
Melvin Christopher Carter (“Petitioner”) is a prisoner in the custody of the Federal Bureau of Prisons and is currently incarcerated in South Carolina at the Bennettsville Federal Correctional Institution. [Doc. 1 at 1.] Proceeding pro se, he filed this habeas action to challenge his conviction and sentence under 28 U.S.C. § 2241. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned Magistrate Judge is authorized to review such petitions for relief and submit findings and recommendations to the District Court. For the reasons below, this habeas action is subject to summary dismissal for lack of jurisdiction.
BACKGROUND
This matter arises from Petitioner's convictions and sentences in the United States District Court for the Southern District of Georgia at case numbers 1:02-cr-00006-DHB-BKE-1 and 1:12-cr-00176-DHB-BKE-1. [Id.; Doc. 1-1 at 3]; see also United States v. Carter, No. 1:02-cr-00006-DHB-BKE-1 (S.D. Ga. Feb. 11, 2002) (“Carter 1”) and United States v. Carter, No. 1:12-cr-00176-DHB-BKE-1 (S.D. Ga. Apr. 19, 2012) (“Carter 2”). Petitioner commenced the present action to challenge his conviction and sentence for possessing a firearm in violation of 18 U.S.C. § 922(g) at case number 1:02-cr-00006-DHB-BKE-1 by filing a habeas petition pursuant to 28 U.S.C. § 2241 (the “Petition”) [Doc. 1] and a supporting memorandum of law [Doc. 1-1]. The Court has carefully reviewed the Petition and memorandum as well as the records in Petitioner's criminal cases in the Southern District of Georgia.
The Court takes judicial notice of the records in Petitioner's criminal cases and prior habeas proceedings in the sentencing court. See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining 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.'”).
Petitioner's Conviction and Sentence at Case Number 1:02-cr-00006-DHB-BKE-1
On February 11, 2002, a grand jury in the United States District Court for the Southern District of Georgia returned an Indictment against Petitioner, and, on March 8, 2002, the grand jury returned a Superseding Indictment against Petitioner, charging him at various Counts with possession of cocaine base with the intent to distribute, carrying a firearm during and in relation to a drug trafficking crime, and possession of a firearm by a convicted felon. Carter 1, Docs. 1; 8. On May 28, 2002, Petitioner pled guilty to Count 1 of the Superseding Indictment, charging him with possession of cocaine base with the intent to distribute, and Count 4 of the Superseding Indictment, charging him with possession of a firearm by a convicted felon. Id., Docs. 17; 18. On August 30, 2002, Petitioner was sentenced to a total term of imprisonment of 96 months, which included a term of 96 months' imprisonment as to both Counts 1 and 4 to be served concurrently to one another, and to a term of 5 years' supervised release as to Count 1 and a term of years' supervised release at Count 4, with both terms of supervised release to be served concurrently. Id., Doc. 21. Petitioner did not file a direct appeal.
On June 2, 2008, Petitioner filed a motion to reduce his sentence based on the retroactive application of the Sentencing Guidelines to the crack cocaine offense. Id., Doc. 24. On March 13, 2008, the sentencing court granted Petitioner's motion and reduced his sentence from 96 months to 84 months. Id., Doc. 26.
Then, on January 4, 2017, after Petitioner completed his term of imprisonment, he was charged with violating the terms of his supervised release. Id., Doc. 30. The sentencing court held a revocation hearing on August 9, 2017, revoked Petitioner's supervised release, and sentenced Petitioner to a term of imprisonment of 36 months, with no supervision to follow. Id.; Docs. 37; 38; 39. Again, Petitioner did not file a direct appeal, and he did not file a motion pursuant to 28 U.S.C. § 2255.
Petitioner's Conviction and Sentence at Case Number 1:12-cr-00176-DHB-BKE-1
On May 9, 2012, a grand jury in the United States District Court for the Southern District of Georgia returned an Indictment against Petitioner, and, on June 6, 2012, the grand jury returned a Superseding Indictment against Petitioner, charging him at various Counts with conspiracy to distribute and to possess with the intent to distribute marijuana, distribution of marijuana, money laundering conspiracy, and use of a communication facility in causing or facilitating the commission of a felony. Carter , Docs. 9 at 1-6; 26.2 On March 15, 2017, Petitioner pled guilty to Count 1 of the Superseding Indictment, charging him with conspiracy to distribute and to possess with the intent to distribute marijuana, and Count 10 of the Superseding Indictment, charging him with money laundering conspiracy. Id., Docs. 195; 196; 197. On August 9, 2017, Petitioner was sentenced to a total term of imprisonment of 60 months, which included a term of 60 months' imprisonment as to Count 1 and a term of 60 months' imprisonment as to Count 10, with both terms to be served concurrently to one another and consecutively to the term of imprisonment imposed at case number 1:02-cr-00006. Id., Docs. 208; 209.
The undersigned notes that Count 9 of the Indictment charged Petitioner's codefendant, Antwuan B. Dent, with possession of a firearm in violation of 18 U.S.C. § 922(g)(1). [Doc. 9 at 4.] However, Petitioner was not charged with Count 9, and he was not charged with any firearm possession in violation of § 922(g)(1).
Petitioner did not file a direct appeal from his conviction and sentence. However, on October 16, 2017, Petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Id., Doc. 214. The sentencing court dismissed Petitioner's motion on May 10, 2018. Id., Docs. 235 (adopting the Report and Recommendation at Doc. 232); 236.
Petitioner's Present Action
Petitioner now seeks habeas relief pursuant to 28 U.S.C. § 2241 in this Court, claiming that he was wrongfully convicted and sentenced in light of Rehaif v. United States, 139 S.Ct. 914 (2019). [Doc. 1-1 at 9.] Petitioner appears to challenge his conviction for the § 922(g) charge at case number 1:02-cr-00006-DHB-BKE-1 and the subsequent sentence arising from the supervised release violation. [ Id. at 9-10.] Specifically, Petitioner asserts that his conviction and sentence should be vacated because the Government failed to prove that he knew he belonged to the relevant category of persons barred from possessing a firearm. [Id.] For his relief, Petitioner requests that the Court vacate his conviction and sentence for the § 922(g) charge. [Id. at 10, 12-13.]
APPLICABLE LAW
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings pursuant to the procedural provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted 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, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, however, the Petition is subject to summary dismissal.
Furthermore, this Court is charged with screening Petitioner's lawsuit to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4 of Rules Governing Section 2254 Cases in the United States District Courts; see also Rule 1(b) Rules Governing Section 2254 Cases in the U.S. District Courts (2012) (explaining that a district court may apply these rules to a habeas corpus petition not filed pursuant to § 2254).
DISCUSSION
Savings Clause Test
Ordinarily, “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)). However, § 2255 includes a savings clause, which permits a district court to consider a § 2241 petition challenging the validity of a prisoner's conviction or sentence when § 2255 is “inadequate or ineffective to test the legality of . . . detention.” 28 U.S.C. § 2255(e); In re: Jones, 226 F.3d 328, 333 (4th Cir. 2000). Accordingly, Petitioner can challenge his federal sentence under § 2241 only if 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). 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.” In re Vial, 115 F.3d at 1194 n.5 (citation omitted).
The Fourth Circuit has established a test for evaluating whether a petitioner meets the savings clause under § 2255 when he contests his conviction. See In re Jones, 226 F.3d at 333-34. Specifically, a petitioner can show that § 2255 is inadequate or ineffective to challenge a conviction when:
(1) at the time of 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 gatekeeping provisions of § 2255 because the new rule is not one of constitutional law.Id. Notably, however, the savings clause is not satisfied merely because a petitioner's prior § 2255 motion was unsuccessful or because a petitioner is unable to meet the requirements to file a successive § 2255 motion. Chisholm v. Pettiford, No. 6:06-cv-2032-PMD-WMC, 2006 WL 2707320, at *2 (D.S.C. Sept. 18, 2006).
The savings clause test is a jurisdictional requirement that must be met before the Court can entertain a petition filed pursuant to § 2241. United States v. Wheeler, 886 F.3d 426, 429 (4th Cir. 2018). Accordingly, the Court may raise a petitioner's failure to satisfy the savings clause test sua sponte, and if a petitioner cannot meet the savings clause requirements, then the § 2241 petition “must be dismissed for lack of jurisdiction.” Rice, 617 F.3d at 807; see also Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (explaining that a district court has an independent duty to ensure that jurisdiction is proper and to dismiss a case whenever it appears that subject matter jurisdiction is lacking); see also Midkiff v. Warden, FCI-Edgefield, No. 8:19-cv-2656-TMC, 2020 WL 3651591 (D.S.C. July 6, 2020) (considering savings clause test sua sponte, even where government conceded that the petitioner satisfied savings clause test requirements).
Further, “[i]n evaluating substantive claims under the savings clause, ” a district court must “look to the substantive law of the circuit where a defendant was convicted.” Hahn v. Moseley, 931 F.3d 295, 301 (4th Cir. 2019). The applicable “procedural law, ” however, is that of the district court's home circuit. Id. Thus, because Petitioner was convicted in the Southern District of Georgia, the Court applies the substantive law of the Eleventh Circuit and the procedural law of the Fourth Circuit in determining whether the savings clause has been satisfied. See 28 U.S.C. § 41. As explained below, Petitioner's § 2241 action should be dismissed because he has not established the elements of the savings clause test of In re Jones.
Analysis
As noted, Petitioner challenges his conviction and sentence for the crime of possession of a firearm in violation of 18 U.S.C. § 922(g) at case number 1:02-cr-00006-DHB-BKE-1. Section 922(g)(1) prohibits any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year from possessing a firearm. 18 U.S.C. § 922(g)(1). On June 21, 2019, the Supreme Court decided Rehaif, holding “that in a prosecution under 18 U.S.C. § 922(g) . . . the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.” 139 S.Ct. at 2200. Thus, “[t]o convict someone under § 922(g)(1), the government must prove four elements: (1) the defendant was a felon; (2) the defendant knew he was a felon; (3) the defendant knowingly possessed a firearm or ammunition; and (4) the firearm or ammunition was in or affecting interstate commerce.” Moss v. Dobbs, No. 8:19-cv-02280, 2019 WL 7284989, at *5 (D.S.C. Sept. 23, 2019) (internal quotation marks omitted), Report and Recommendation adopted by 2019 WL 5616884 (D.S.C. Oct. 31, 2019).
Petitioner contends that his § 922(g) conviction and sentence should be vacated in light of Rehaif because the Government failed to meet its burden of proving that he knew he belonged to a category of persons barred from possessing a firearm. [Doc. 1-1 at 9.] Nevertheless, after reviewing the entire record and the applicable law, the Court finds that Petitioner is not entitled to relief for the reasons below.
As an initial matter, the undersigned notes that Petitioner did not file a § 2255 motion to challenge his conviction and sentence for the § 922(g) charge in the sentencing court. Therefore, “Petitioner fails to satisfy the second prong of the Jones test because he did not file a § 2255 motion before filing the instant § 2241 petition.” Rogers v. Barnes, No. 4:20-cv-01540-RBH, 2020 WL 3790475, at *2 (D.S.C. July 7, 2020). In his memorandum of law, Petitioner asserts that he filed a § 2255 in October 2017 to challenge his conviction at case number 1:17-cv-00130-DHB-BKE on grounds of ineffective assistance of trial counsel. [Doc. 1-1 at 4.] However, Petitioner does not appear to challenge his conviction at case number 1:17-cv-00130-DHB-BKE in the present action, and he was not convicted of a § 922(g) charge in case number 1:17-cv-00130-DHB-BKE. Instead, Petitioner challenges his conviction for the § 922(g) charge at case number 1:02-cr-00006-DHB-BKE-1, and he did not file a § 2255 motion in that case. Accordingly, because Petitioner did not file a § 2255 motion in the sentencing court before filing the instant action, he “cannot validly argue that the sentencing court has ‘denied' him relief or that the remedy under § 2255 is ‘inadequate or ineffective.'” Williams v. Joyner, No. 2:18-cv-1237-JMC-MGB, 2018 WL 10425411, at *4 (D.S.C. Aug. 3, 2018), Report and Recommendation adopted by 2020 WL 635998 (D.S.C. Feb. 10, 2020).
Further, Petitioner cannot satisfy the second element of the savings clause test because he has failed to show that “the conduct of which [he] was convicted is deemed not to be criminal.” In re Jones, 226 F.3d at 333-34. “A plain reading of the second prong [of Jones] identifies two elements to that prong: 1) the substantive law changed, and 2) the conduct of which the prisoner was convicted is no longer criminal. In other words, the change has to make ‘previously illegal conduct no longer a source of criminal liability.'” Russaw v. Kellie, No. 4:19-cv-02127-MGL, 2020 WL 4381946, at *2 (D.S.C. July 31, 2020) (quoting Hahn, 931 F.3d at 303).
“Although the Eleventh Circuit has not directly addressed the second prong of the Jones test, ” it has explained “that Rehaif addressed the government's burden of proof in prosecuting cases under § 922(g).” Allen v. Dobbs, No. 1:20-cv-321-HMH-SVH, 2020 WL 907513, at *4 (D.S.C. Jan. 31, 2020) (citing In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019) and In re Wright, 942 F.3d 1063, 1064 (11th Cir. 2019)), Report and Recommendation adopted by 2020 WL 901407 (D.S.C. Feb. 25, 2020), appeal filed, No. 20-6471 (4th Cir. Apr. 9, 2020). “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.” Id.
Here, under Eleventh Circuit law, the Government met its burden of proof because Petitioner pled guilty to the charge of possessing a firearm in violation of § 922(g). See, e.g., Pullins v. Dobbs, No. 0:19-cv-3492-JFA, 2020 WL 4581743, at *3 (D.S.C. Aug. 10, 2020) (applying Eleventh Circuit law to find that a defendant's guilty plea satisfies the Government's burden and renders Rehaif irrelevant), appeal filed, No. 20-7237 (4th Cir. Aug. 25, 2020); Hughes v. Mackelburg, No. 8:19-cv-03390-HMH-JDA, 2020 WL 1429351, at *2 (D.S.C. Mar. 24, 2020) (same); Allen, 2020 WL 907513, at *3-4 (same). Because the Government met its burden of proof, Petitioner cannot show that the conduct of which he was convicted is no longer criminal. See Russaw v. Kellie, No. 4:19-cv-2127-MGL-TER, 2020 WL 5948256, at *5 (D.S.C. June 22, 2020) (noting Rehaif was not a basis for relief under Eleventh Circuit law because the petitioner pled guilty and was “unable to show that his guilty plea resulted in a conviction for conduct that is not criminal”), Report and Recommendation adopted by 2020 WL 4381946 (D.S.C. July 31, 2020); Allen, 2020 WL 907513, at *3-4 (discussing Eleventh Circuit cases evaluating whether Rehaif changed the substantive law such that the conduct of which the prisoner was convicted would be deemed not to be criminal). Accordingly, Petitioner has failed to satisfy the requirements of the savings clause test.
The undersigned notes that the Fourth Circuit recently noticed several different Rehaif errors on plain error review. See United States v. Medley, 972 F.3d 399, 406 (4th Cir. 2020) (errors in omitting the knowledge-of-status element from the indictment and from the jury instruction in a jury trial); United States v. Gary, 954 F.3d 194, 200-08 (4th Cir. 2020) (error in failing to instruct defendant of the knowledge-of-status element during guilty-plea colloquy). However, Gary and Medley play no role in this case because, in considering whether the Jones elements are satisfied, the Court applies the substantive law of the Eleventh Circuit, not that of the Fourth Circuit. See Capalbo v. Antonelli, No. 1:19-cv-1946-TMC, 2020 WL 3496641, at *4 (D.S.C. June 29, 2020) (finding the petitioner's arguments based on Gary without merit because the court was obligated to apply the substantive law of the sentencing court, which was the Eleventh Circuit in that case).
Finally, to the extent Petitioner challenges the validity of his sentence rather than the validity of his conviction, the Petition fails to satisfy the savings clause test applicable to challenge a sentence. In Wheeler, the Fourth Circuit established the following test, which sets forth when a petitioner may meet the savings clause under § 2255 to contest his sentence:
[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.Wheeler, 886 F.3d at 429 (citations omitted). Here, Petitioner cannot meet savings clause test because, as noted, he did not first file a § 2255 motion in the sentencing court and because Rehaif has not been held to be retroactive on collateral review. Asar v. Travis, No. 6:20-cv-394-BHH, 2020 WL 3843638, at *2 (D.S.C. July 8, 2020), appeal filed, No. 207299 (4th Cir. Sept. 2, 2020). Therefore, Petitioner cannot meet the second element of the Wheeler test.
CONCLUSION AND RECOMMENDATION
For the reasons explained above, this Court lacks jurisdiction to consider the Petition. Therefore, it is recommended that the § 2241 Petition be dismissed without prejudice and without requiring the Respondent to file an answer or return.
See Platts v. O'Brien, 691 Fed.Appx. 774 (4th Cir. 2017) (citing S. Walk at Broadlands Homeowner's Ass'n v. Open Band at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) (“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.”).
IT IS SO RECOMMENDED.
Petitioner's attention is directed to the important notice on the next page.
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).