Opinion
C. A. 4:21-2221-DCC-TER
08-18-2021
George Theodore Fitzgerald, Petitioner, v. W.E. Mackelburg, Warden, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III Florence, South Carolina United States Magistrate Judge
Petitioner is a federal prisoner in custody in South Carolina at FCI Edgefield. Petitioner was sentenced by the U.S. District Court, Western District of Virginia. He is seeking habeas relief under § 2241 and proceeding in this action pro se. 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 is authorized to review such petitions for relief and submit findings and recommendations to the District Court.
STANDARD OF REVIEW
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). The 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, 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. Following the required initial review, it is recommended that the Petition submitted in this case should be dismissed.
DISCUSSION
On July 15, 2011, in the U.S. District Court, Western District of Virginia, Petitioner pleaded guilty to one count of conspiracy to commit racketeering, 18 U.S.C. § 1962(d), and one count of use of a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c). U.S. v. Fitzgerald, No. 7:10-cr-0080-GEC (W.D.V.A. ECF No. 17). Petitioner was sentenced to 150 months as to count one and 126 months as to count two to run consecutively. Id. In 2013, Petitioner's first § 2255 motion was denied. Id. at (ECF No. 50). In 2014, Petitioner's sentence was reduced. Id. at (ECF No. 55). In the sentencing court in 2019, Petitioner moved for appointment of counsel to address whether Davis would provide Petitioner relief. Id. at (ECF No. 58). The sentencing court denied such motion but noted a District of South Carolina case that held Davis challenges must be brought under § 2255 and Petitioner needed a pre-filing authorization to file a successive § 2255. Id. at (ECF No. 60). So, Petitioner filed an application for a successive § 2255 authorization, which was denied. Id. at (ECF No. 61). Again in 2020, Petitioner filed another application for a successive § 2255 authorization. Id. at (ECF No. 66). Of note to Petitioner's § 2241 arguments, the Fourth Circuit Court of Appeals stayed such pending a decision in In re Thomas, 988 F.3d 783, 790 (4th Cir Feb. 23, 2021). Less than two weeks after the decision in Thomas, the Fourth Circuit Court of Appeals denied Petitioner's successive authorization request without further comment. Id. at (ECF No. 70). In July 2021,
Petitioner filed the instant § 2241 Petition. (ECF No. 1).
“[D]efendants 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)). Petitioner cannot challenge his federal conviction and sentence under § 2241, unless he can satisfy 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); see also Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001). 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. Petitioner was unsuccessful in seeking relief under § 2255 in his petition in his sentencing court. However, “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).
The Fourth Circuit established a test for when a petitioner may meet the savings clause under § 2255 when he contests his sentence, not only his conviction. U.S. v. Wheeler, No. 16-6073, 2018 WL 1514418 (4th Cir. March 28, 2018)(published). 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.” Id. at *10.
While at first blush, this issue may seem complex for initial review under § 1915, consideration of it is required because the § 2255 savings clause is a jurisdictional requirement and subject matter jurisdiction may be raised sua sponte. In the past, 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. In Wheeler, the Fourth Circuit again held that “the savings clause is a jurisdictional provision.” Wheeler, 2018 WL 1514418 at *5. Thus, an analysis of whether Petitioner meets the four factor savings clause test created in Wheeler is required.
Petitioner argues he meets the Wheeler test through Davis v. U.S., 139 S.Ct. 2319 (2019) which found the residual clause of the statutory definition of violent felony, which provided a mandatory minimum sentence based on the using, carrying, or possessing of a firearm in connection with a federal crime of violence unconstitutionally vague under due process principles. (ECF No. 1). Petitioner further argues that he meets the retroactivity requirement because In re Thomas, 988 F.3d 783, 790 (4th Cir Feb. 23, 2021), found Davis retroactive on collateral review. (ECF No. 1).
(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. at 333-34. Thomas and Davis deal with sentences of mandatory minimums under 924(c) and no case law has stated that conspiracy to commit racketeering is no longer a crime/“deemed not to be criminal, ” nor that use of a firearm during a crime of violence is no longer a crime/“deemed not to be criminal.”Petitioner cannot meet Jones. While Petitioner states he is contesting his sentence under Wheeler, it appears Petitioner is also asking for full release, which may imply a vacation of conviction as well. Out of an abundance of caution both tests will be addressed. In In re Jones, 226 F.3d 328 (4th Cir. 2000), the court held that a petitioner must show:
Petitioner argues that he cannot receive relief via § 2255(h) successively because Davis was only made retroactive by the Fourth Circuit Court of Appeals and not the United States Supreme Court. (ECF No. 1 at 2). As to the third Wheeler factor, “the prisoner is unable to meet the gatekeeping provisions of § 2255(h)(2) for second or successive motions, ” in Thomas, the Fourth Circuit noted that Davis was 1) a new rule of constitutional law, 2) made retroactive to cases on collateral review, 3) by the Supreme Court, and 4) was previously unavailable. Thomas, 988 F.3d at788-790(“it was the Supreme Court that made Davis retroactive. The Supreme Court did not state that Davis was retroactive in Davis itself. But such an express statement by the Supreme Court is not required.”). Thomas itself was a grant of a motion to file a successive § 2255; the Fourth Circuit still denied Petitioner's request for successive authorization even with the benefit of Thomas.
Further, Thomas may not be pertinent to Petitioner as Thomas was a conviction under § 924(c) with a conviction under 18 U.S.C. § 1962(c) and Petitioner was convicted under 924(c) but with a conviction under 18 U.S.C. § 1962(d) . But see United States v. Simmons, 999 F.3d 199 (4th Cir. May 28, 2021)(published)(vacating conviction and holding § 1962(d) is not a crime of violence under the force clause, § 924(c)(3)(A)). However, even if Simmons is applicable to Petitioner's facts more so than Thomas, Petitioner cannot meet the second element of Wheeler because no court has deemed the 2021 Simmons case to be retroactive on collateral review.
Petitioner cannot meet the savings clause test for this court to have jurisdiction over his § 2241 action.
RECOMMENDATION
Accordingly, it is recommended that the Petition be dismissed without prejudice and without requiring the respondent to file a return.
See Platts v. O'Brien, 691 Fed.Appx. 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 ORDERED.