Opinion
C/A No.: 5:20-169-HMH-KDW
02-05-2020
Rigoberto Gomez-Vazquez, Petitioner, v. Brian K. Dobbs, Warden, Respondent.
REPORT AND RECOMMENDATION
Rigoberto Gomez-Vazquez ("Petitioner"), proceeding pro se, filed this Petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner is a federal inmate incarcerated at Federal Correctional Institution Williamsburg, in the custody of the Federal Bureau of Prisons. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil 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 judge. For the reasons that follow, the undersigned recommends that the district judge dismiss the petition in this case without prejudice. I. Factual and Procedural Background
Petitioner alleges he was convicted of aggravated battery on March 24, 2011 in Palm County, Florida. ECF No. 1 at 10. Plaintiff states that on November 25, 2014, he entered a guilty plea to illegal reentry after deportation in the United States District Court, Southern District of Florida, and he was sentenced to 48 months incarceration. Id. Petitioner states after he was sentenced he wrote to his public defender alleging that the United States Probation Department wrongly determined Petitioner was removed from the United States as an aggravated felon. Id. at 11. Petitioner alleges that his Florida conviction for aggravated battery did not qualify as a violent felony. Id. Petitioner states his public defender did not respond to his letter, and because the statute of limitations for filing a § 2255 motion has expired, he is "filing the instant motion as the correct vehicle in which to pursue his argument." Id.
Petitioner filed the instant habeas petition seeking resentencing without the enhancement for the aggravated battery charge. Id. at 8. A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of this Petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, and other habeas corpus statutes. Pro se pleadings are held to a less-stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a pleading filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se pleading, the pleader's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
B. Analysis
"[I]t is well established that 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)). In contrast, a motion filed under § 2241 is typically used to challenge the manner in which a sentence is executed. See In re Vial, 115 F.3d at 1194 n.5. A petitioner cannot challenge his federal conviction and sentence under § 2241 unless he can satisfy the § 2255 savings clause as follows:
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 Rice, 617 F.3d at 807 (finding court lacked jurisdiction over § 2241 petition outside savings clause).
The Fourth Circuit established an updated savings clause test under § 2255 for a petitioner who contests his sentence. United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018). The court held that § 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 429.
The undersigned finds the court lacks jurisdiction to consider Petitioner's § 2241 Petition because he cannot show that § 2255 is inadequate to test the legality of his sentence. Because Petitioner never filed a § 2255 motion to vacate, he is not able to satisfy the second prong of Wheeler showing that settled substantive law changed "subsequent to [his] direct appeal and first § 2255 motion." To the extent Petitioner argues that his § 2255 remedy is inadequate or ineffective because his time to file a § 2255 motion has expired, this argument is without merit. The Fourth Circuit has unequivocally held that "§ 2255 is not inadequate or ineffective merely because an individual is unable to obtain relief under that provision." In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000); In re Vial, 115 F.3d at 1194 n.5 (finding that a procedural impediment to § 2255 relief, such as the statute of limitations or the rule against successive petitions, does not render § 2255 review "inadequate" or "ineffective"). The undersigned finds Petitioner fails to meet the Wheeler standard to show that § 2255 is inadequate or ineffective to test the legality of his sentence. Accordingly, Petitioner's § 2241 petition should be summarily dismissed. III. Conclusion and Recommendation
Petitioner did not file a motion to vacate judgment under 28 U.S.C. § 2255. ECF No. 1 at 4.
For the foregoing reasons, the undersigned recommends the district judge dismiss the Petition in the above-captioned matter without prejudice.
IT IS SO RECOMMENDED. February 5, 2020
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
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).