Opinion
C/A No. 8:19-cv-1271-DCC-JDA
06-04-2019
David Ellis, Petitioner, v. B. M. Antonelli, Warden, Respondent.
REPORT AND RECOMMENDATION
David Ellis ("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. Proceeding pro se and in forma pauperis, Petitioner brings this habeas action 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, the Petition is subject to summary dismissal for lack of jurisdiction.
BACKGROUND
Petitioner's Conviction, Sentence, and Appeal
On August 26, 2013, Petitioner pled guilty in the United States District Court for the Eastern District of North Carolina at case number 5:12-cr-208-D to Count 2 of an Indictment, charging him with possession of a stolen firearm, and to Count 3 of an Indictment, charging him with possession of an unregistered firearm. [Doc. 1 at 2]; United States v. Ellis, No. 5:12-cr-00208-D (E.D.N.C. Aug. 26, 2013), Doc. 60. On February 24, 2014, the Honorable James C. Dever III, sentenced Petitioner to, among other things, a term of 120 months' imprisonment as to Count 2 and a consecutive term of 115 months' imprisonment as to Count 3, for a total term of 235 months' imprisonment. [Doc. 1 at 3]; United States v. Ellis, No. 5:12-cr-00208-D (E.D.N.C. Feb. 24, 2014), Docs. 77, 81. Plaintiff filed a direct appeal, and, on October 23, 2014, the Fourth Circuit Court of Appeals affirmed Petitioner's conviction and dismissed the appeal as to his sentence. [Doc. 1 at 2]; United States v. Ellis, 585 F. App'x 58 (4th Cir. 2014). The United States Supreme Court denied Petitioner's petition for writ of certiorari on March 2, 2015. Ellis v. United States, 135 S. Ct. 1510 (2015).
The Court takes judicial notice of the records in Petitioner's criminal case in the Eastern District of North Carolina. 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 § 2255 Motion
On June 19, 2015, Petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in the sentencing court. [Doc. 1 at 4]; United States v. Ellis, No. 5:12-cr-00208-D (E.D.N.C. Jun. 19, 2015), Docs. 95, 99. However, the sentencing court denied his motion and granted the Government's motion to dismiss on May 27, 2016. Ellis v. United States, No. 5:15-cv-00268-D, 2016 WL 3064079 (E.D.N.C. May 27, 2016). Petitioner appealed and, on October 18, 2016, the Fourth Circuit Court of Appeals dismissed Petitioner's appeal. Ellis v. United States, 669 F. App'x 655, 656 (4th Cir. 2016).
The Court further notes that, on January 9, 2019, Petitioner filed a motion to reduce his sentence pursuant to the First Step Act, which remains pending in the sentencing court. United States v. Ellis, No. 5:12-cr-00208-D (E.D.N.C. Jan. 9, 2019), Docs. 128, 129.
Petitioner's Present Action
Petitioner now seeks habeas relief pursuant to 28 U.S.C. § 2241 in this Court, claiming that his sentence is unconstitutional because trial counsel was ineffective in failing to adequately or meaningfully explain the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") at any time during the pendency of the criminal proceedings against him. [Doc. 1 at 8.] Specifically, Petitioner contends that trial counsel failed to explain Chapters 2 and 3 of the Guidelines to him, even though Petitioner was subject to a Chapter 2 enhancement, and that Petitioner entered a guilty plea without knowing the consequences of that plea with regard to the applicable sentencing enhancements under the Guidelines. [Id.] For his relief, Petitioner seeks resentencing and an evidentiary hearing. [Id. at 9.]
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
Unlike a § 2255 motion, which is filed in the sentencing court, a § 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). 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)). This is so because a § 2241 petition generally "attacks the execution of a sentence rather than its validity," whereas a § 2255 motion "attacks the legality of detention." Rice v. Lamanna, 451 F. Supp. 2d 755, 758 (D.S.C. 2006) (quoting Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)); see also United States v. Miller, 871 F.2d 488, 489-90 (4th Cir. 1989) (distinguishing between attacks to the "computation and execution of the sentence rather than the sentence itself"). However, § 2255 includes a savings clause, which permits a district court to consider a § 2241 petition challenging the validity of the 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 cannot challenge his federal sentence under § 2241 unless 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). In other words, as applied here, Petitioner's § 2241 action is barred unless he can demonstrate that the relief available to him under § 2255 is inadequate or ineffective. Here, Petitioner has already filed a motion under § 2255 in the sentencing court seeking relief from his conviction and sentence but was unsuccessful. 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." See In re Vial, 115 F.3d at 1194 n.5 (citations omitted).
Recently, the Fourth Circuit established a test for evaluating whether a petitioner meets the savings clause under § 2255 when he contests 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.United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018). This savings clause test is a jurisdictional requirement that must be met before the Court can entertain a petition filed pursuant to § 2241. Id. at 426 (explaining, "the savings clause requirements are jurisdictional"). The Court may sua sponte raise subject matter jurisdiction, and the Fourth Circuit has held that, 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.
Analysis
As stated, Petitioner seeks re-sentencing, asserting that trial counsel's failure to advise him of the Guidelines resulted in Petitioner's sentence being enhanced without Petitioner ever having any knowledge of the enhancement before entering into the plea agreement. However, Petitioner cannot meet the savings clause test announced in Wheeler. Petitioner appears to meet the first requirement of Wheeler that his sentence was legal at the time of sentencing. However, Petitioner cannot meet the second element because he cannot show that, subsequent to his first § 2255 motion, the settled substantive law under which he was sentenced changed and was deemed to apply retroactively on collateral review.
Many federal prisoners, such as Petitioner, have erroneously attempted to overturn federal convictions or sentences by filing a § 2241 action. See, e.g., San-Miguel v. Dove, 291 F.3d 257, 259-61 (4th Cir. 2002) (upholding summary dismissal of a § 2241 action filed in the District of South Carolina that challenged convictions and sentences entered in the United States District Court for the District of Puerto Rico). As noted, § 2255 is not an inadequate or ineffective remedy simply because a motion under § 2255 is unsuccessful, untimely, or successive. In Re Vial, 115 F.3d at 1194 n.5. In its seminal decision regarding the savings clause requirements under § 2255, the Fourth Circuit Court of Appeals held that "§ 2255 is not inadequate or ineffective merely because an individual is unable to obtain relief under that provision. A contrary rule would effectively nullify the gatekeeping provisions." In re Jones, 226 F.3d 328, 333 (4th Cir. 2000) (citations omitted). As such, the Fourth Circuit has provided stringent tests, in Jones for challenging a conviction and in Wheeler for challenging a sentence, to meet the savings clause provision of the habeas statute. 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. 6:06-2032-PMD-WMC, 2006 WL 2707320, at *2 (D.S.C. Sept. 18, 2006).
Because Petitioner challenges his sentence in this action and not his conviction, the Court must evaluate his claims pursuant to Wheeler. However, Petitioner has failed to identify any substantive law change that occurred subsequent to his direct appeal and first § 2255 motion and was deemed to apply retroactively on collateral review, as required by Wheeler. Indeed, Petitioner presents no allegations whatsoever that he meets the Wheeler test.
Further, the Court notes that Petitioner has already raised the same ineffective assistance claim that he now raises in his § 2255 motion filed in the sentencing court. While claims of ineffective assistance of counsel are not generally procedurally defaulted if they are not raised on direct appeal and may be brought in a § 2255 claim, Massaro v. United States, 538 U.S. 500, 506-09 (2003), Petitioner is not raising this ineffective assistance of counsel claim in the first instance here in a § 2255 filing after appeal, see also White v. Savage, No. 2:02-cv-2013-PMD, 2002 WL 32078922, at *3 (D.S.C. July 30, 2002) ("'ineffective assistance of counsel [claims]' also suggests a challenge to [a petitioner's] conviction and sentence" which should be brought as a motion under § 2255), aff'd, 50 F. App'x 641 (4th Cir. 2002). Petitioner is instead attempting to raise his ineffective assistance claim in a § 2241 motion, after having filed a previous § 2255 motion in which he raised an identical claim. Petitioner does not explain how this ineffective assistance of counsel claim meets the savings clause requirement as he points to no intervening change of law that permits him to raise this claim for the first time, as is required by Fourth Circuit precedent. And, Petitioner's ineffective assistance of counsel claim has already been decided on the merits by the sentencing court in his § 2255 motion, see Ellis, 2016 WL 3064079, at *4, and his appeal was dismissed by the Fourth Circuit, see Ellis, 669 F. App'x at 656. See Keaton v. Mosley, No. 9:18-cv-2041-RMG, 2018 WL 4954121, at *3 (D.S.C. Oct. 12, 2018) ("Petitioner[ ] renewed an argument alleging ineffective assistance of counsel at his trial and sentencing. This argument challenges his conviction and sentence, was already dismissed in Petitioner's first § 2255 motion, and Petitioner cannot meet the Wheeler test."). Consequently, this claim is not appropriate under § 2241 and must be brought under § 2255, if at all. See Barnett v. Quintana, No. 5:18-cv-00279, 2018 WL 7078579, at *9 (S.D.W. Va. Dec. 18, 2018), Report and Recommendation adopted by 2019 WL 267731 (S.D.W. Va. Jan. 18, 2019); Coney v. Masters, No. 1:15-cv-10927, 2016 WL 8604321, at *3 (S.D.W. Va. Aug. 8, 2016) (explaining that claims for ineffective trial counsel do not "fall within the category of claims contemplated by the savings clause") (citations and quotation marks omitted), Report and Recommendation adopted by 2017 WL 1102594 (S.D.W. Va. Mar. 23, 2017); Tovar-Flores v. Saad, No. 2:15-cv-100, 2016 WL 3080710, at *2 (N.D.W. Va. May 10, 2016) (noting that claims of ineffective assistance of counsel are not properly brought under § 2241), Report and Recommendation adopted by 2016 WL 3080833 (N.D.W. Va. May 31, 2016). Further, Petitioner "'will not be allowed to recast, under the guise of collateral attack, questions fully considered by [previous] courts.'" Garcia v. Kallis, No. 3:17-cv-112, 2018 WL 5019412, at *6 (N.D.W. Va. Sept. 19, 2018) (quoting Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976)) (finding the petitioner had previously raised ineffective assistance of counsel claims in her § 2255 motion and was unable to meet the requirements of Wheeler in her § 2241 petition as to those claims), Report and Recommendation adopted by 2018 WL 5018467 (N.D.W. Va. Oct. 16, 2018).
Petitioner has already attempted to challenge his sentence in his direct appeal and his first § 2255 motion in the sentencing court, in part on the grounds he now asserts in this Petition, but his attempts were unsuccessful. And, the instant Petition fails to assert any new substantive law change subsequent to his first § 2255 motion applicable to his sentence. Petitioner has failed to satisfy the elements of the Fourth Circuit's Wheeler test to invoke the savings clause to challenge his sentence in this § 2241, and his Petition is therefore subject to summary dismissal as this Court lacks the jurisdiction to consider the motion. See United States v. Miller, No. 6:06-cv-548-HFF, 2007 WL 2684844, at *3 (D.S.C. Sept. 7, 2007) (explaining § 2255 affords petitioner the relief which he seeks and § 2241 cannot be used in lieu of a proceeding under § 2255) (citing Swain v. Pressley, 430 U.S. 372, 381 (1977)).
CONCLUSION AND RECOMMENDATION
For the reasons explained above, this Court lacks jurisdiction to consider the Petition. Accordingly, 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 F. App'x 774 (4th Cir. June 22, 2017) (citing S. Walk at Broadlands Homeowner's Ass'n v. OpenBand 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.
s/ Jacquelyn D. Austin
United States Magistrate Judge June 4, 2019
Greenville, South Carolina
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
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).