Opinion
C/A No. 8:20-cv-2059-HMH-JDA
06-11-2020
Richard Junior Frazier, Petitioner, v. Nanette Barnes, Warden Bennettsville Federal Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Richard Junior Frazier ("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. Proceeding pro se, 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, this habeas action is subject to summary dismissal for lack of jurisdiction.
BACKGROUND
Petitioner commenced this action to challenge his sentence by filing a petition for writ of habeas corpus (the "Petition"). [Doc. 1]. The Court has carefully reviewed the Petition filed in this case as well as the records from the sentencing court. Petitioner's Conviction, Sentence, Appeal, and § 2255 Motion
The Court may take judicial notice of the records in Petitioner's criminal case, related appeals, and prior habeas actions. 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.'").
On June 20, 2001, a jury in the United States District Court for the Northern District of Georgia convicted Petitioner of the crime of kidnapping in violation of 18 U.S.C. § 1201(a)(1). [Doc. 1 at 1]; see also United States v. Frazier, No. 2:00-cr-00070-RWS-JRS-1 (N.D. Ga. June 20, 2001) ("Frazier"), Doc. 71. On August 10, 2001, the sentencing court sentenced Petitioner to a term of life imprisonment pursuant to 18 U.S.C. § 3559(c), the federal three-strikes statute. [Doc. 1 at 1]; see also Frazier, Docs. 75; 76.
On October 15, 2004, the Eleventh Circuit Court of Appeals affirmed Petitioner's conviction. [Doc. 1 at 2]; see also United States v. Frazier, 387 F.3d 1244, 1273 (11th Cir. 2004) (en banc).
On May 19, 2006, Petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in the sentencing court. See Frazier, Doc. 105. The sentencing court denied Petitioner's motion for relief on May 30, 2006. Frazier, Doc. 106.
On June 27, 2016, with authorization from the Eleventh Circuit Court of Appeals and assisted by counsel, Petitioner filed a second motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in the sentencing court. See Frazier, Docs. 110; 112. On June 3, 2019, the sentencing court granted Petitioner's motion to withdraw his § 2255 motion. See Frazier, Docs. 122; 123.
In his second § 2255 motion, Petitioner argued that his enhanced life sentence was unlawful, claiming that the residual clause § 3559(c)(2)(F)(ii) is unconstitutionally vague under Johnson v. United States, 135 S. Ct. 2551 (2015), and Welch v. United States, 136 S. Ct. 1257 (2016), which held that 18 U.S.C. § 924(e)'s residual clause was unconstitutionally vague. See Frazier, Doc. 110. Specifically, Petitioner argued that, in light of Johnson and Welch, his prior Georgia state court convictions for armed robbery, robbery, aggravated assault, and burglary do not qualify as "serious violent felonies" under § 3559(c)(2)(F). Id. at 3-4. Petitioner later moved to dismiss his § 2255 motion, explaining that "since [Petitioner] filed his petition, the Eleventh Circuit has now addressed each of [the statutes regarding Petitioner's prior convictions] in turn and [Petitioner] still has at least two prior convictions that qualify as predicates under 18 U.S.C. § 3559(c). Frazier, Doc. 122 at 1.
Petitioner's Present Action
Petitioner now seeks habeas relief pursuant to 28 U.S.C. § 2241 in this Court. Petitioner contends that his mandatory sentence of life imprisonment is illegal because his crime of conviction, kidnapping in violation of 18 U.S.C. § 1201(a)(1), is not a crime of violence as required under 18 U.S.C. § 3559(c). [Doc. 1 at 2.]
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. 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 (citations omitted).
The Fourth Circuit has 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.
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." Jones, 226 F.3d at 333 (citations omitted).
Analysis
The crux of Petitioner's claim is that his sentence is unlawful because his crime of conviction, kidnapping in violation of 18 U.S.C. § 1201(a)(1), is not a crime of violence for purposes of mandatory sentencing under the federal three-strikes statute, 18 U.S.C. § 3559(c). However, Petitioner cannot satisfy the requirements of Wheeler because he has not demonstrated that, subsequent to his direct appeal and first § 2255 motion, the settled substantive law changed and was deemed to apply retroactively on collateral review. See Reynolds v. Joyner, No. 9:18-cv-1809-TMC-BM, 2018 WL 5650035, at *3 (D.S.C. Oct. 10, 2018) (finding petitioner could not satisfy Wheeler where he failed to point to any Circuit or Supreme Court case showing that the settled substantive law changed and was deemed to apply retroactively in his claim that his prior convictions no longer qualify as predicates under ACCA), Report and Recommendation adopted by 2018 WL 5634223 (D.S.C. Oct. 31, 2018).
As noted, after Petitioner was convicted of kidnapping, he was sentenced to a mandatory term of life imprisonment. Under § 3559(c)(1)(A)(i), a mandatory sentence of life imprisonment is imposed if (1) the defendant is convicted of a serious violent felony and (2) the defendant has previously been convicted of two or more such felonies. Here, Petitioner does not challenge his prior convictions. Indeed, after filing his second § 2255 motion filed in the sentencing court in which he challenged his prior convictions, Petitioner acknowledged that he was not entitled to relief because he had at least two qualifying prior convictions constituting serious violent felonies, and the court denied the motion. See Frazier, Docs. 122 at 1; 123. Instead, Petitioner challenges only his conviction for kidnapping that triggered the mandatory life sentence under § 3559(c), arguing that kidnapping is not a crime of violence.
Contrary to Petitioner's argument, his conviction for kidnapping qualified as a "serious violent felony" under the explicit terms of the enumerated clause of § 3559(c)(2)(F)(I). The statute defines a "serious violent felony" in part as "a Federal or State offense, by whatever designation or wherever committed, consisting of . . . kidnapping." 18 U.S.C. § 3559(c)(2)(F)(i). Kidnapping is defined in the statute as "an offense that has as its elements the abduction, restraining, confining, or carrying away of another person by force or threat of force." 18 U.S.C. § 3559(c)(2)(E). Accordingly, because kidnapping is an enumerated crime explicitly defined in the statute as a serious violent felony to trigger the three strikes statute under § 3559(c)(1)(A) and because Petitioner has acknowledged that his criminal record includes at least two prior convictions classified as serious violent felonies under § 3559(c)(2)(F)(ii), Petitioner's mandatory life sentence is lawful.
Petitioner asserts that two recent cases—United States v. Gillis, 938 F.3d 1181 (11th Cir. 2019), and United States v. Walker, 934 F.3d 375 (4th Cir. 2019)—together constitute a change in the law applicable to his case. [Doc. 1 at 2.] Petitioner argues that, in light of these two cases, federal kidnapping under § 1201(a)(1) is no longer considered a crime of violence for purposes of the mandatory life sentencing provision of § 3559(c). [Id.] However, Petitioner's cited cases are inapplicable here and do not present any change in the settled substantive law under which he was sentenced.
In Gillis, the Eleventh Circuit vacated a defendant's conviction for solicitation of another to commit the crime of federal kidnapping in violation of 18 U.S.C. § 373, because § 1201(a) kidnapping did not categorically qualify as a crime of violence under the force clause of § 373. Gillis, 938 F.3d at 1186, 1210. In Walker, the Fourth Circuit vacated a defendant's conviction under 18 U.S.C. § 924(c), holding that § 1201(a) kidnapping did not categorically qualify as a crime of violence under the force clause of § 924(c)(3)(A). Walker, 934 F.3d at 379.
However, neither of these two cases help Petitioner. Although the courts in Gillis and Walker determined that federal kidnapping under § 1201(a) did not categorically qualify as a crime of violence, both cases involved the application of other statutes—18 U.S.C. § 373(a) in Gillis and 18 U.S.C. § 924(c)(3)(A) in Walker. Here, the statute providing the mandatory term of sentencing applicable to Petitioner's case is 18 U.S.C. §3559(c). Neither Gillis nor Walker evaluated whether the crime of federal kidnapping constitutes a serious violent felony to trigger the three strikes provision of § 3559(c). Further, Petitioner has failed to identify any case, and the Court is not aware of any case, holding that federal kidnapping is not a serious violent felony under § 3559(c). Accordingly, in the absence of any case indicating a change in the law as to the statute at issue here, Petitioner is unable to satisfy the requirements of Wheeler. Because Petitioner has failed to satisfy the savings clause test announced in Wheeler, this Court lacks jurisdiction over this action.
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 11, 2020
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
300 East Washington Street
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).