Opinion
C/A No. 4:19-cv-3418-JFA-TER
02-05-2020
Lonnie Goodrich, Petitioner, v. Warden Mackelburg, Respondent.
Report and Recommendation
Petitioner is a federal prisoner in custody in South Carolina at FCI-Estill. Petitioner was sentenced by the U.S. District Court, Western District of Missouri. 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 judge.
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 April 27, 2012, after a bench trial, Petitioner was found guilty of maintaining a residence for the purposes of distributing cocaine base, 21 U.S.C. § § 856(a)(2) and (b). Petitioner was found to be a career offender under the U.S. Sentencing Guidelines. Goodrich v. U.S., No. 4:16-cv-00216-GAF, (W.D. Mo. Apr. 12, 2017)(ECF No. 19, § 2255 order). Petitioner's predicate offenses were two different charges, second-degree robbery and second degree burglary in Missouri. Id. Petitioner's 2012 conviction and sentence were affirmed by the Eighth Circuit Court of Appeals and certiorari was denied by the United States Supreme Court in 2015. On March 10, 2016, Petitioner filed a § 2255 motion arguing he was entitled to relief under Johnson. Id. His § 2255 motion was denied.
Petitioner has filed a § 2241 in this court arguing that pursuant to Wheeler and after Johnson that his second-degree Missouri burglary conviction no longer qualifies as a crime of violence under the Sentencing Guidelines. (ECF No. 1 at 8). Petitioner requests that his enhanced career offender sentence be vacated. (ECF No. 1 at 9). Petitioner argues that U.S. v. Naylor, 887 F.3d 397 (8th Cir. 2018) held that second-degree Missouri burglary is not a crime of violence under the Sentencing Guidelines. (ECF No. 1 at 8).
"[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, 886 F.3d 415 (4th Cir. 2018). 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 429.
Consideration of this issue is appropriate under § 1915 review 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, 886 F.3d at 423. Thus, an analysis of whether Petitioner meets the four factor savings clause test created in Wheeler is set forth below.
Petitioner argues his second-degree Missouri burglary conviction predicate no longer qualifies as a crime of violence under the Sentencing Guidelines. (ECF No. 1 at 8). Petitioner argues U.S. v. Naylor, 887 F.3d 397 (8th Cir. 2018) held that second-degree Missouri burglary is not a crime of violence under the Sentencing Guidelines. (ECF No. 1 at 8).
Petitioner appears to be able to meet the first requirement that his sentence was legal at the time of sentencing. As for the second factor, "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," Petitioner cannot meet the second element. The Naylor case held prior Missouri convictions for second degree burglary did not qualify as "violent felonies" under the ACCA. U.S. v. Naylor, 887 F.3d 397 (8th Cir. 2018). The holding in Naylor does not affect Petitioner's sentence because Petitioner's career offender status and sentencing arose under the Sentencing Guidelines, not the ACCA. Petitioner was not sentenced under the ACCA as an armed career criminal.
The Eighth Circuit Court of Appeals case, United States v. Cantrell, 530 F.3d 684, 695-96 (8th Cir. 2008) is the applicable case to Petitioner. Cantrell was cited by the 2255 court and has not been overruled as of the filing date of this report. The Eighth Circuit in Cantrell found that "regardless of whether Cantrell's [Missouri] burglary conviction was a 'generic burglary,' " he was a career offender under the Guidelines "because Cantrell's [Missouri] second-degree burglary conviction constituted a 'crime of violence' under the 'otherwise involves conduct that presents a serious potential risk of physical injury to another' clause." Id. Beckles held "that the advisory Sentencing Guidelines are not subject to a vagueness challenge under the Due Process Clause and that § 4B1.2(a)'s residual clause is not void for vagueness." Beckles v. United States, 137 S. Ct. 886, 895 (2017). Naylor is not the applicable law to Petitioner. Naylor's holding only affects qualification of Missouri second degree burglary convictions under the ACCA, not the sentencing guidelines. See Jackson v. United States, No. 18-CV-02221-NJR, 2019 WL 1040137, at *3 (S.D. Ill. Mar. 5, 2019)(distinguishing Naylor because it involved the ACCA and not the Guidelines). The holding in Beckles extinguishes Petitioner's argument that after Johnson, his burglary conviction no longer qualified as a crime of violence under the sentencing guidelines because Beckles distinguished the provisions of the Armed Career Criminal Act from the Sentencing Guidelines and concluded that the ruling in Johnson does not apply to Sentencing Guidelines provisions. Beckles, 137 S. Ct. at 892.
Petitioner has not demonstrated that he can meet the elements of Wheeler. Petitioner has not demonstrated that a motion filed pursuant to § 2255 is inadequate or ineffective to test the legality of his sentence thereby allowing him to file a § 2241 petition, under Wheeler.
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.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge February 5, 2020
Florence, 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).