Opinion
C. A. 8:23-cv-00307-SAL-JDA
03-13-2023
Mark Ronnell Davis, Petitioner, v. Warden RS Dunbar, Respondent.
REPORT AND RECOMMENDATION
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
Mark Ronnell Davis (“Petitioner”) is a prisoner in the custody of the Federal Bureau of Prisons and is currently incarcerated in South Carolina at the Williamsburg Federal Correctional Institution. [Doc. 1 at 1.] Proceeding pro se, he filed this action under 28 U.S.C. § 2241 seeking habeas corpus relief from his conviction and sentence. 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 action is subject to summary dismissal for lack of jurisdiction.
BACKGROUND
This matter arises from Petitioner's conviction and sentence in the United States District Court for the District of Kansas at case number 2:11-cr-20020. [Doc. 1 at 1]; see also United States v. Davis, No. 2:11-cr-20020-JWL-2 (D. Kan. Mar. 29, 2011) (“Davis”).
The Court takes judicial notice of the records in Petitioner's criminal case and habeas proceeding in the sentencing court. See Philips v. Pitt Cnty. 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 commenced the present action by filing a petition for habeas corpus relief pursuant to 28 U.S.C. § 2241 (the “Petition”). [Doc. 1.] Petitioner also filed a memorandum of law in support of his Petition. [Doc. 1-1.] The Court has carefully reviewed the Petition and memorandum of law filed in this case as well as the records from Petitioner's underlying criminal case in the sentencing court and his appeals filed in the Tenth Circuit Court of Appeals.
Petitioner's Conviction and Sentence
On March 29, 2011, a grand jury in the United States District Court for the District of Kansas returned an Indictment against Petitioner, charging him at Counts 16 and 20 with robbery, at Counts 17 and 21 with brandishing a firearm during and in relation to a crime of violence, and at Counts 19 and 23 with possession of a firearm by a convicted felon. See Davis, Doc. 16. On October 9, 2012, after a trial, a jury found Petitioner guilty of Counts 20, 21, and 23, and not guilty of Counts 16, 17, and 19. Id., Doc. 143. On January 28, 2013, Petitioner was sentenced to a total term of imprisonment of 360 months, consisting of 96 months as to Count 20, 180 months as to Count 23 to be served consecutive to Count 20, and 84 months as to Count 21 to be served consecutive to Counts 20 and 23. Id., Docs. 157; 158.
On February 11, 2013, Petitioner filed a notice of appeal. Id., Doc. 161. The United States Court of Appeals for the Tenth Circuit affirmed Petitioner's conviction and sentence on May 7, 2014. Id., Doc. 186.
Petitioner's § 2255 Motions
On January 14, 2016, Petitioner filed a first motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in the sentencing court. Id., Doc. 218. The sentencing court denied Petitioner's motion to vacate on August 16, 2019. Id., Doc. 263.
On March 2, 2020, Petitioner filed a second motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in the sentencing court. Id., Doc. 270. The sentencing court denied Petitioner's motion to vacate on May 7, 2020, as an unauthorized successive petition. Id., Doc. 287.
On February 10, 2021, Petitioner filed a third motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in the sentencing court. Id., Doc. 291. The sentencing court denied Petitioner's motion to vacate on May 11, 2021, as an unauthorized successive petition. Id., Doc. 305.
Petitioner's Present Action
Petitioner now seeks 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. 2191 (2019). [Docs. 1; 1-1 at 1-2.] Petitioner challenges only his conviction and sentence for the 18 U.S.C. § 922(g) felon-in-possession charge at Count 23. [Docs. 1 at 2; 1-1 at 1.] Petitioner asserts two grounds in his Petition:
GROUND ONE: The jury instructions as to the § 922(g) offense were improper and had a substantial [e]ffect on the outcome of the petitioner's trial.
Supporting facts: The jury instructions failed to allege the mens rea element of § 922(g)(1).
GROUND TWO: The indictment was defective as to the § 922(g)(1) charge.
Supporting facts: The indictment failed to allege the mens rea element of § 922(g)(1) and doesn't even mention it at all.[Doc. 1 at 6.] For his relief, Petitioner requests that the Court vacate his conviction and sentence for the § 922(g) charge and remand for resentencing. [Id. at 7.]
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.
Further, 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
Petitioner's Arguments
As noted, Petitioner seeks to vacate his conviction and sentence for his felon-inpossession charge. [Doc. 1 at 7; 1-1 at 1.] Petitioner contends he is entitled to relief under Rehaif and he asserts two grounds for seeking relief-(1) the sentencing court gave an improper jury instruction as to the felon-in-possession charge by failing to address the mens rea element and (2) the indictment was “defective” in that it failed to allege the mens rea element of the felon-in-possession charge. [Doc. 1 at 6; 1-1 at 1.] Petitioner contends he has satisfied the savings clause tests under In re: Jones, 226 F.3d 328, 333 (4th Cir. 2000), and United States v. Wheeler, 886 F.3d 426, 429 (4th Cir. 2018), to proceed with this action in this Court under § 2241. [Doc. 1-1 at 21-22.]
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); Jones, 226 F.3d at 333. 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. Wheeler, 886 F.3d at 429.
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 District of Kansas, the Court applies the substantive law of the Tenth 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
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 both the indictment and the jury instructions as to the felon-inpossession charge failed to articulate the proper mens rea element announced in Rehaif. [Doc. 1 at 6.] Nevertheless, after reviewing the entire record and the applicable law, the Court finds that Petitioner is not entitled to relief for the reasons below. The Court will separately address Petitioner's challenge to his conviction under the Jones test and his challenge to his sentence under the Wheeler test.
Jones
To begin, Petitioner cannot satisfy the second prong of the Jones test to challenge his conviction. “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).
First, Petitioner cannot satisfy the Jones test because Rehaif was decided before the resolution of Petitioner's first § 2255 motion. Petitioner is unable to establish the second Jones prong because, for that prong to be satisfied, any change in the law at issue must occur prior to the court's ruling on a petitioner's § 2255 motion, not merely prior to the petitioner's filing of the § 2255 motion. In a case similar to the one presently before the Court, the Honorable Terry L. Wooten dismissed a § 2241 petition asserting a Rehaif challenge for lack of jurisdiction and explained as follows:
Petitioner cannot satisfy § 2255's savings clause due to the timing of the denial of his § 2255 petition. Although he filed his petition prior to the Supreme Court's June 21, 2019 decision in Rehaif . . ., this Court did not deny his petition until April 22, 2020-ten months after Rehaif.... Thus, the substantive law did not change “subsequent to [his] . . . first § 2255 motion.”
...
Petitioner could have moved to amend his § 2255 petition to raise a Rehaif claim at any time in the ten-month period between the issuance of Rehaif and this Court's order denying his petition, but he did not do so. Although this may be much to require of a pro se habeas petitioner, this process is embraced by the caselaw cited above. Because he could have sought to amend his petition to raise a Rehaif claim, the Court cannot say that “he had no opportunity to utilize a § 2255 motion to take advantage of a change in the applicable law.”Hill v. Dobbs, No. 0:20-cv-02011-TLW, 2020 WL 6064576, at *1 (D.S.C. Oct. 14, 2020).
The same is true in the present case.
Petitioner filed his first motion pursuant to 28 U.S.C. § 2255 in the sentencing court on January 14, 2016. Davis, Doc. 218. Although Petitioner filed his § 2255 motion pro se, a notice of appearance was entered on February 29, 2016, by Attorney Kirk C. Redmond. Id., Doc. 220. On May 19, 2016, counsel for Petitioner filed a supplement to the pro se § 2255 motion. Id., Doc. 228. On July 21, 2016, the sentencing court granted the parties' joint motion to stay the § 2255 proceedings pending the resolution of certain cases following the Supreme Court's decision in Johnson. Id., Docs. 238; 239. Thereafter, by Order dated June 29, 2017, the sentencing court directed counsel for Petitioner to provide a status report. Id., Doc. 242. Attorney Redmond filed a status report on July 13, 2017, and the sentencing court issued a briefing schedule on July 19, 2017. Id., Docs. 243; 244. On November 29, 2017, the sentencing court again granted a request to stay the proceedings pending additional cases to be decided by the Supreme Court that might impact Petitioner's claims. Id., Docs. 255; 256. Attorney Redmond subsequently filed status reports and, ultimately, Petitioner requested that certain claims be dismissed from his § 2255 motion following various Supreme Court decisions. Id., Docs. 258; 260; 262. Once the stay was lifted, the sentencing court denied Petitioner's § 2255 motion on August 16, 2019. Id., Doc. 263.
As noted in a supplemental filing, Attorney Redmond, with the Federal Public Defender's Office, entered his appearance under an order in the District of Kansas which authorized the Federal Public Defender to represent any indigent defendant that might qualify for post-conviction relief pursuant to Johnson v. United States, 576 U.S. 591 (2015). Davis, Doc. 228 at 1.
However, Rehaif was decided on June 21, 2019, two months before the sentencing court ruled on Petitioner's first § 2255 motion. It is noteworthy that Petitioner was represented by counsel on his first § 2255 motion and that counsel for Petitioner requested multiple stays of that action to evaluate the impact that certain pending cases before the Supreme Court might have on the merits of Petitioner's collateral challenge to his conviction and sentence. Yet, counsel for Petitioner did not amend the § 2255 motion to include a Rehaif challenge even though that case was pending before the Supreme Court and ultimately decided by that Court before the resolution of Petitioner's § 2255 motion. Accordingly, Petitioner cannot satisfy the second prong of the Jones test because the change in substantive law upon which he purports to rely occurred before the resolution of his first § 2255 motion.
Further, Petitioner is unable to establish the second Jones prong because he cannot show that the conduct for which he was convicted is no longer criminal. Petitioner correctly notes that, at the time of his conviction, the Tenth Circuit's “precedent firmly established the legality of his conviction,” thus satisfying the first Jones prong. [Doc. 1-1 at 22.] However, his argument as to the second Jones prong-that Rehaif rendered the conduct for which he was convicted to be no longer criminal-is incorrect. [Id.] Courts in the Fourth Circuit have repeatedly held “the Supreme Court's holding in Rehaif does not amount to a substantive change in the law as being a felon in possession of a firearm remains a valid criminal offense.” Medlyn v. Warden F.C.I. Bennettsville, No. 2:20-cv-2119-RMG, 2022 WL 357450, at *2 (D.S.C. Feb. 4, 2022) (concluding the petitioner failed to establish the second Jones prong and dismissing the petition for lack of jurisdiction); see also Mack v. Maruka, No. 1:20-cv-00102, 2022 WL 18931892, at *5 (S.D. W.Va. Sept. 26, 2022) (“Courts within the Fourth Circuit have held that Rehaif did not change substantive law if the conduct for which the petitioner was convicted is still illegal and being a felon in possession of a firearm is still a valid criminal offense.”) (collecting cases), Report and Recommendation adopted by 2023 WL 2330423 (S.D. W.Va. Mar. 2, 2023). “The doctrinal change worked by Rehaif regarding a clarification in the elements of proof for § 922(g) convictions did not render the conduct of which Petitioner was convicted no longer criminal.” Garcia-Balderas v. Dobbs, No. 6:20-cv-3781-BHH, 2022 WL 3334611, at *2 (D.S.C. Aug. 12, 2022). Accordingly, the Court concludes that Petitioner cannot demonstrate that the conduct for which he was convicted is no longer a crime. See Harrison v. Streeval, No. 7:21-cv-00267, 2022 WL 879461, at *3-6 (W.D. Va. Mar. 24, 2022) (evaluating a § 2241 petition, applying Tenth Circuit substantive law and Fourth Circuit procedural law, and finding the petitioner could not demonstrate under Rehaif that the conduct for which he was convicted is no longer a crime).
The undersigned notes that, while the vast majority of courts in the Fourth Circuit have reached this same conclusion, not all judges agree. See, e.g., Moore v. Warden of FCI Edgefield, 557 F.Supp.3d 704, 712 (D.S.C. 2021) (“Because Rehaif changed the substantive law such that the conduct of which [the petitioner] was convicted is ‘no longer a source of criminal liability,' he has satisfied the second element of the Jones test.”).
Further, Plaintiff's stipulation as to his felony status during the trial satisfies the government's burden as to the mens rea element and, therefore, Petitioner cannot argue, in light of that stipulation, that he did not know he belong to the relevant class of individuals prohibited from possessing a firearm. As noted, Rehaif requires that, for a felon-inpossession charge, 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. Rehaif, 139 S.Ct. at 2200. Fatal to Petitioner's arguments in the present case is his stipulation with respect to his status as a convicted felon. The following stipulation was made by Petitioner and read to the jury during his trial:
Prior to January 2011, [Petitioner] was convicted of felony crimes, that is, crimes punishable by imprisonment for a term exceeding one year in the state of Missouri. As a result of said convictions, [Petitioner] would have been prohibited under federal law from owning, possessing, or purchasing a firearm or ammunition.Davis, Doc. 171 at 189; see also Christian Legal Soc'y Chapter of Univ. of Cal. v. Martinez, 561 U.S. 661, 677-78 (2010) (stating that factual stipulations “have the effect of withdrawing a fact from issue and dispensing with the need for proof of the fact” (internal quotation marks omitted)). “Because the Government met its burden of proof, Petitioner cannot show that the conduct of which he was convicted is no longer criminal.” Moss v. Dobbs, No. 8:20-cv-01697-JMC-JDA, 2020 WL 7231993, at *5 (D.S.C. Oct. 16, 2020), Report and Recommendation adopted by 2020 WL 6737668 (D.S.C. Nov. 17, 2020); see also Garcia-Balderas, 2022 WL 3334611, at *3 (“The presence of the stipulation in the underlying trial record demonstrates that at the time Petitioner was prosecuted, he challenged neither the fact of his status as a prior convicted felon, nor that he had knowledge of that status.”).
Petitioner does not allege in his Petition, nor does he argue in his memorandum, that he did not know he was prohibited from possessing a firearm nor does he identify any evidence to support such an assertion. To the contrary, there is ample proof in the record-including Petitioner's own stipulation, the evidence at trial, and Petitioner's criminal history-to support the knowledge-of-status element. Several courts have noted in cases similar to the present one that, “[o]n this issue, and although it involved direct appeals rather than collateral attacks, the Supreme Court's decision in Greer v. United States, (2021), is instructive.” Harrison, 2022 WL 879461, at *5; see also Pleasant v. Streeval, No. 7:20-cv-00233, 2022 WL 212704, at *2 (W.D. Va. Jan. 24, 2022) (explaining that, in light of Greer, “the additional element recognized in Rehaif-that the defendant knew he was a felon-is easily proven in most cases, particularly where, as here, the defendant had been convicted of multiple felony offenses”); Schmutte v. Hudgins, No. 3:19-cv-116, 2022 WL 200968, at *3 (N.D. W.Va. Jan. 21, 2022) (overruling the petitioner's objection that the magistrate judge's citation of Greer was improper because Greer did not involve a Jones analysis, noting that Greer provided a “factually similar[] situat[ion]” particularly in view of the petitioner's stipulation, and finding the magistrate judge therefore “properly relied on the precedent set in Greer”). As one court has explained:
Greer involved consolidated appeals from a Fourth Circuit case, United States v. Gary, 954 F.3d 194 (4th Cir. 2020), and an Eleventh Circuit case, United States v. Greer, 798 Fed.Appx. 483 (11th Cir. 2020). In the Eleventh Circuit case, the defendant had gone to trial. Like [the petitioner] did here, Greer had stipulated that he was a felon, and he did not request or receive a jury instruction requiring that the jury find that he knew he was a felon when he possessed a firearm. Contrary to [the petitioner's] argument here, the Court concluded that the error was not a “structural” one. Instead, it was subject to plain error review, and, to succeed on direct appeal, Greer had to show that, if the district court had correctly instructed the jury on the mens rea element, there is a “reasonable probability” that he would have been acquitted. Id. at 2097.
In making that determination, the Court noted that a defendant like [the petitioner] faces “an uphill climb,” reasoning that “[i]f a person is a felon, he ordinarily knows he is a felon.” Id.; see also id. (“Felony status is simply not the kind of thing that one forgets.”) (citing Gary, 963 F.3d at 423 (Wilkinson, J., concurring in denial of reh'g en banc)). Turnerv. Streeval, No. 7:20-cv-00180, 2022 WL 748501, at *6-7 (W.D. Va. Mar. 11,2022) (some alterations in original). Like the many other courts in this circuit that have cited to Greer with approval in deciding whether a petitioner can satisfy the applicable savings clause test to challenge a conviction for a felon-in-possession charge under § 2241, the undersigned finds the following analysis in Greer to be instructive:
Before their respective felon-in-possession offenses, both Greer and Gary had been convicted of multiple felonies. Those prior convictions are substantial evidence that they knew they were felons. Neither defendant has ever disputed the fact of their prior convictions. At trial, Greer stipulated to the fact that he was a felon. And Gary admitted that he was a felon when he pled guilty. Importantly, on appeal, neither Greer nor Gary has argued or made a representation that they would have presented evidence at trial that they did not in fact know they were felons when they possessed firearms. Therefore, Greer cannot show that, but for the Rehaif error in the jury instructions, there is a reasonable probability that a jury would have acquitted him. And Gary likewise cannot show that, but for the Rehaif error during the plea colloquy, there is a reasonable probability that he would have gone to trial rather than plead guilty.Greer, 141 S.Ct. at 2097-98. The facts of the case regarding Gary are nearly identical to the present case. And, although the present case is a collateral attack rather than a direct appeal, the instruction from Greer is applicable here-demonstrating prejudice under Rehaif “will be difficult for most convicted felons for one simple reason: Convicted felons typically know they're convicted felons.” Id. at 2098. Here, Petitioner has not even suggested that he was not a felon or that he did not know he was a felon. Nor can he do so in light of his own stipulation at trial. As such, Petitioner cannot demonstrate that the conduct for which he was convicted is no longer criminal.
In sum, Petitioner cannot rely on Rehaif to meet the savings clause test to challenge his conviction under Jones. Accordingly, because Petitioner has failed to satisfy the requirements of the savings clause test, the Court is without jurisdiction to consider the challenge to his conviction.
Wheeler
Finally, to the extent Petitioner challenges the validity of his sentence rather than or in addition to the validity of his conviction, the Petition fails to satisfy the savings clause test applicable to challenge a sentence for the same reason stated above. 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 gate keeping 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, although Petitioner cites Wheeler [Doc. 1 at 21], he makes no argument whatsoever that he can satisfy the four-part test. In any case, Petitioner cannot meet the savings clause test under Wheeler because Rehaif has not been deemed to apply retroactively on collateral review. Courts in the Fourth Circuit have noted that “the Supreme Court did not indicate the holding in Rehaif was retroactively applicable to cases on collateral review.” Washington v. Dobbs, No. 5:19-cv-3224-RBH-KDW, 2022 WL 4084225, at *3 (D.S.C. Aug. 1, 2022) (collecting cases), Report and Recommendation adopted by 2022 WL 4082199 (D.S.C. Sept. 6, 2022). And, both the District of Kansas and the Tenth Circuit, where Petitioner was convicted and sentenced, have also recognized that “Rehaif is not retroactively available on collateral review.” United States v. Scuderi, No. 12-cv-10059-EFM, 2020 WL 6939796, at *3 (D. Kan. Nov. 25, 2020), certificate of appealability denied by, United States v. Scuderi, 842 Fed.Appx. 304, 305 (10th Cir. 2021) (“Rehaif has not been made retroactive by the Supreme Court or any Court of Appeals.”). Further, “since the Supreme Court's decision in Rehaif, several courts within the Fourth Circuit have held that Rehaif did not change substantive law because the conduct for which the petitioner was convicted is still illegal.” Willis v. Adams, No. 3:21-cv-0082, 2021 WL 7451268, at *6 (N.D. W.Va. Dec. 7, 2021) (finding the petitioner could not satisfy the second prong of the Wheeler test), Report and Recommendation adopted by 2022 WL 761481 (N.D. W.Va. Mar. 11, 2022).
The undersigned notes that Petitioner made a passing reference in his memorandum of law in support of his Petition to Seabrooks v. United States, 32 F.4th 1375 (11th Cir. 2022), arguing that it is “directly in accordance with [Petitioner's] reasoning here.” [Doc. 1-1 at 18.] In Seabrooks, the Eleventh Circuit noted, among other things, that “Rehaif announced a new rule of substantive law that applies retroactively to [the petitioner's] initial § 2255 motion.” 32 F.4th at 1383 (emphasis added). Because Petitioner filed the present action in this Court, Fourth Circuit precedent applies. Thus, “[t]he rule established by the Eleventh Circuit in Seabrooks does not control the Petitioner's case because the Petitioner filed his petition pursuant to § 2241 in the Fourth Circuit, while the claimant in Seabrooks filed a § 2255 petition in the Eleventh Circuit.” Dorsey v. Adams, No. 3:19-cv-132, 2022 WL 2713550, at *5 (N.D. W.Va. July 13, 2022). Indeed, the Eleventh Circuit has also held that “Rehaif did not announce a new rule of constitutional law and, even if it did, it has not been made retroactive to cases on collateral review by the Supreme Court.” In re Price, 964 F.3d 1045, 1048 (11th Cir. 2020) (emphasis omitted).
Therefore, Petitioner cannot satisfy the savings clause test announced in Wheeler to challenge his sentence on the felon-in-possession charge and the Court is without jurisdiction to consider his claims.
Conclusion
Accordingly, because Petitioner cannot satisfy the tests under either Jones or Wheeler, his claims may not be considered under § 2241, and this Court is without jurisdiction to consider the Petition. When subject-matter jurisdiction does not exist, “the only function remaining to the court is that of announcing the fact and dismissing the cause.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (citation and internal quotation marks omitted); Reinbold v. Evers, 187 F.3d 348, 359 n.10 (4th Cir. 1999).
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) (“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.” (internal quotation marks omitted)).
IT IS SO RECOMMENDED.
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 250 East North Street, Suite 2300 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).