Opinion
C. A. 0:21-1923-DCN-PJG
12-06-2021
Travis Nicodemus Grady, Petitioner, v. Warden of Federal Correctional Institution- Bennettsville, Respondent.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
Petitioner Travis Nicodemus Grady, a federal prisoner originally proceeding without counsel, filed this habeas corpus action pursuant to 28 U.S.C. § 2241. The court granted Grady's motion to appoint counsel pursuant to 18 U.S.C. § 3006A(a)(2)(B), appointed Kimberly Harvey Albro of the Federal Public Defender's Office to represent Grady, and granted leave for Grady to file an amended petition. (ECF No. 12.) This matter is now before the court pursuant to 28 U.S.C. § 636 and Local Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Respondent's motion to dismiss the Amended Petition, or in the alternative, motion for summary judgment. (ECF No. 20.) Grady filed a response in opposition (ECF No. 28), and Respondent replied (ECF No. 33.) Having carefully considered the parties' submissions and the record in this case, the court concludes that Respondent's motion to dismiss should be granted.
BACKGROUND
The following allegations are taken as true for purposes of resolving Respondent's motion. In 2010, Grady pled guilty pursuant to a written plea agreement in the United States District Court for the Western District of Virginia to knowingly and intentionally distributing a mixture and substance containing heroin, with serious bodily injury resulting from the use of such substance, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). United States v. Grady, Cr. No. 5:10-cr- 00002-EKD-1 (W.D. Va.). The factual basis of the plea was that Grady gave heroin to a woman who overdosed. Because Grady agreed that serious bodily injury resulted from his distribution of the drugs, he faced an enhanced penalty under § 841(b)(1)(C). That provision states that where serious bodily injury “results from the use of” the distribution of the drug, the defendant “shall be sentenced to a term of imprisonment of not less than twenty years or more than life.” 21 U.S.C. § 841(b)(1)(C). A corresponding provision in the United States Sentencing Guidelines (“U.S.S.G.”), § 2D1.1(a)(2), suggested a base level offense of 38.
The written plea agreement stated that Grady injected the woman with the heroin. However, during a change of plea hearing, Grady told the sentencing court that he disagreed with the written plea agreement and that he did not inject the victim with anything. The Government stated that it would seek to prove at trial that Grady injected her but noted that 21 U.S.C. § 841(b)(1)(C) requires the government to prove only that the heroin he distributed led to the overdose. The sentencing judge noted that the medical evidence “clearly implied” that the overdose “was a result of the heroin” Grady gave the victim. (Plea Hearing Tr., ECF No. 20-5 at 16.) Grady agreed with the Government's statement that he gave the victim heroin and that the victim's overdose “was the direct result of her heroin use that came from Mr. Grady.” (Id.) The sentencing court accepted Grady's guilty plea to 21 U.S.C. § 841(b)(1)(C) in light of the updated factual basis. The presentence investigation report cited to 21 U.S.C. § 841 and its corresponding provision under U.S.S.G. § 2D1.1(a)(2) and listed Grady's base level offense as 38, and the sentencing court adjusted the base by 3 for acceptance of responsibility. Because of Grady's criminal history category of V, his guideline range was 262 to 327 months' imprisonment. The Western District of Virginia sentenced Grady to 262 months' imprisonment followed by three years of supervised release.
On January 27, 2014, the United States Supreme Court held in Burrage v. United States that under 21 U.S.C. § 841(b)(1)(C), the Government must show that the defendant's distribution of the drug was the “but-for” cause of the victim's death or serious bodily injury where the use of the drug itself is not an independently sufficient cause. Burrage v. United States, 571 U.S. 204, 218-19 (2014). In so holding, the Court rejected the argument that a defendant could be held liable under § 841(b)(1)(C) when the distribution of the drug was only a “substantial” or “contributing” factor in the death or serious bodily injury. Id. at 215-16.
Later that year, in November 2014, Grady filed a pro se motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255 in the Western District of Virginia. Among other claims, Grady argued that his sentence enhancement for distribution resulting in serious bodily injury under § 841(b)(1)(C) was unlawful in light of Burrage. The sentencing court dismissed the motion as untimely under 28 U.S.C. § 2255(f). United States v. Grady, Cr. No. 5:10-cr-00002-EKD-1 (ECF No. 60), 2015 WL 4773236 (W.D. Va. 2015). In so doing, the sentencing court expressly rejected Grady's argument that the motion was timely in light of Burrage under § 2255(f)(3), which allows a prisoner to file the motion within one year of the date on which a right is newly recognized by the Supreme Court, if the right is made retroactively applicable to cases on collateral review. The sentencing court first found that evidence supported Grady's conviction even under the “but-for” cause standard required by Burrage, specifically citing Grady's representations during his guilty plea colloquy that the victim's overdose resulted form the heroin he distributed. The sentencing court also found that Grady could not rely on Burrage to meet the statute of limitations under § 2255(f)(3) because the Supreme Court had not held that Burrage applied retroactively on collateral review. Grady filed a second pro se § 2255 motion in September 2017, again relying on Burrage, but the sentencing court summarily dismissed the motion as successive under § 2255(h). United States v. Grady, Cr. No. 5:10-cr-00002-EKD-1 (ECF Nos. 95 & 96) (W.D. Va. 2015). The United States Court of Appeals for the Fourth Circuit denied Grady's request for a certificate of appealability and dismissed the appeal. United States v. Grady, No. 15-7575, 627 Fed.Appx. 193 (4th Cir. Dec. 22, 2015).
In June 2018, while he was housed as an inmate at the Federal Correctional InstitutionTerra Haute in Indiana, Grady filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Southern District of Indiana. Grady v. Kreuger, C/A No. 2:18-cv-252-WTL-DLP (S.D. Ind.). In the petition, Grady claimed that his sentence was unlawful in light of Burrage because the Government failed to prove that the heroin he distributed was the but-for cause of the victim's overdose. The Southern District of Indiana granted the respondent's motion to dismiss. Grady v. Kreuger, C/A No. 2:18-cv-252-WTL-DLP (ECF No. 17), 2019 WL 1255486 (S.D. Ind.). In so doing, the Southern District of Indiana found that because Grady's Burrage claim was already considered and rejected by his sentencing court, Grady could not seek relief under 21 U.S.C. § 2241.
In December 2020, the Fourth Circuit acknowledged in Young v. Antonelli that Burrage applies retroactively on collateral review. Young v. Antonelli, 982 F.3d 914 (2020). Relatedly, the Fourth Circuit also held that Burrage's “but-for” causation standard applies retroactively to § 841(b)(1)(C)'s corresponding provision in U.S.S.G. § 2D1.1(a) if the defendant was sentenced prior to the United States Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005) (holding that the Sentencing Guidelines are advisory rather than mandatory).
Grady now files this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner argues again that his sentence enhancement under § 841(b)(1)(C) is unlawful in light of Burrage. However, Petitioner argues that he can now meet the savings clause of § 2255(e) because the Fourth Circuit in Young held that Burrage applies retroactively on collateral review. Respondent moves to dismiss the Amended Petition, arguing that the court lacks jurisdiction over this matter because Grady cannot meet the savings clause, or alternatively, for summary judgment because Grady's claim lacks merit.
DISCUSSION
A. Applicable Standards
Dismissal under Federal Rule of Civil Procedure 12(b)(1) examines whether the pleading fails to state facts upon which jurisdiction can be founded. It is the petitioner's burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
To resolve a jurisdictional challenge under Rule 12(b)(1), the court may consider undisputed facts and any jurisdictional facts that it determines. The court may dismiss a case for lack of subject matter jurisdiction on any of the following bases: “(1) the [the pleading] alone; (2) the [pleading] supplemented by undisputed facts evidenced in the record; or (3) the [pleading] supplemented by undisputed facts plus the court's resolution of disputed facts.” Johnson v. United States, 534 F.3d 958, 962 (8th Cir. 2008) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).
On the other hand, summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322.
B. Habeas Corpus Standard of Review Pursuant 28 U.S.C. § 2241
Generally, a federal prisoner may only seek collateral review of his conviction pursuant to 28 U.S.C. § 2255. See Davis v. United States, 417 U.S. 333, 344-45 (1974); In re Jones, 226 F.3d 328, 332-33 (4th Cir. 2010); In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997). To begin, 28 U.S.C. § 2255(a) provides four separate avenues for a federal prisoner to challenge his sentence. See generally United States v. Foote, 784 F.3d 931, 936 (4th Cir. 2015) (discussing § 2255(a)). The Supreme Court has held that if the alleged sentencing error is neither constitutional nor jurisdictional, a petitioner must show that the sentence contains “a fundamental defect which inherently results in a complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346 (1974) (discussed in Foote, 784 F.3d at 936). Moreover, to pursue relief under this statute, a prisoner's petition must be timely under subsection (f). See 28 U.S.C. § 2255(f) (providing various dates from which a one-year limitations period runs).
If a defendant has already exhausted his direct appeals and pursued relief under § 2255, a favorable change in the law might still result in additional review if he can meet other statutory requirements. One of these avenues is to file a second or successive § 2255 petition. The requirements to do so are found in § 2255(h), often referred to as the “gatekeeping provision.” If those requirements cannot be met, a defendant may still seek additional review of his sentence through the so-called “savings clause” of § 2255, found at subsection (e):
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 v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (providing that if a federal prisoner brings a § 2241 petition that does not fall within the scope of the savings clause, the district court must dismiss the unauthorized habeas petition for lack of jurisdiction).
The United States Court of Appeals for the Fourth Circuit has held that a petitioner must establish the following criteria to demonstrate that a § 2255 motion is “inadequate or ineffective” to test the legality of a prisoner's conviction:
(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.In re Jones, 226 F.3d 328, 333-34 (2000). Similarly, when the petitioner challenges the legality of his sentence, the Fourth Circuit provides the following test:
(1) [A]t 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). A petitioner's failure to meet the requirements of the savings clause is a jurisdiction defect that may not be waived. Id. at 426.
C. Respondent's Motion
1. Applicable Saving Clause Test
Initially, the parties disagree as to whether Grady is challenging the validity of his conviction or sentence, and in turn, whether the Fourth Circuit's savings clause test from In re Jones or Wheeler applies. Respondent argues Grady is challenging his conviction because the “but-for” causation element under § 841(b)(1)(C) is an essential element of the offense that, as the Supreme Court concluded in Burrage, must be proved beyond a reasonable doubt. See Burrage, 571 U.S. at 210. Therefore, Respondent argues, the court should consider whether Grady meets the savings clause under the standard in In re Jones. The court disagrees.
Grady's Amended Petition is properly considered under Wheeler because Grady seeks to vacate his sentence, not his conviction. Respondent is semantically correct that Grady was “convicted” under § 841(b)(1)(C) because that provision's causation requirement is an element that must be proven beyond a reasonable doubt. But, relief under In re Jones is only available to a prisoner who claims his conviction is unlawful because he “is incarcerated for conduct that is not criminal.” In re Jones, 226 F.3d at 333. Even if Grady is entitled to relief on his claim under Burrage, Grady will still have committed the criminal offense of distributing heroin under 21 U.S.C. § 841(a)(1). The purported Burrage error affects only the length of his sentence, not the fact of criminality, regardless of whether the Government must prove the elements beyond a reasonable doubt to support the sentence. See, e.g., Burrage, 571 U.S. at 217 (“Moreover, even when the prosecution is unable to prove but-for causation, the defendant will still be liable for violating § 841(a)(1) and subject to a substantial default sentence under § 841(b)(1).”); Id. at 210 n.3 (describing a violation of § 841(a)(1) as a “lesser included offense” of a violation of § 841(b)(1)(C)). And in Burrage, on which Respondent relies, the Court specifically refers to § 841(b)(1)(A)-(C) as a “penalty enhancement provision,” rather than a separate offense. Therefore, Grady cannot proceed under In re Jones because he does not argue that he is incarcerated for conduct that is no longer deemed criminal. In re Jones, 226 F.2d at 334. Instead, Wheeler provides the only remedy to Grady, if any, because he asserts that the erroneously applied sentencing enhancement has unlawfully extended his sentence. See Wheeler, 886 F.3d at 428 (distinguishing challenges to the “legality of the underlying criminal conviction” as contemplated by In re Jones and relief for an “illegally extended sentence” as provided by Wheeler).
2. “Settled Law”
Pursuant to Wheeler, Respondent must first show that “at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence.” Wheeler, 886 F.3d at 429. Respondent argues that Grady cannot show that his but-for causation claim was foreclosed at the time of his conviction. The court agrees.
The first prongs of the tests in Wheeler and In re Jones are the same-the petitioner must show that settled law of this circuit or the Supreme Court established the legality of the sentence or conviction. Therefore, even if Respondent is correct that Grady's claim is properly analyzed under In re Jones, Respondent's motion to dismiss should still be granted.
To show that “settled law” originally established the legality of his sentence, a petitioner must demonstrate that “at the time of his conviction, binding precedent from the Supreme Court or the circuit of conviction foreclosed the argument he contends entitles him to habeas relief.” Marlowe v. Warden, FCI Hazelton, 6 F.4th 562, 569 (4th Cir. 2021). Precedent is “binding” if it is a published case from the applicable circuit court of appeals or Supreme Court. Id. at 571; see also Chorley Enters., Inc. v. Dickey's Barbecue Rests., Inc., 807 F.3d 553, 562 n.10 (4th Cir. 2015) (“[A]n unpublished decision is not binding on this Court.”). Stated differently, the petitioner must demonstrate that raising his claim in his original proceeding “was or would have been futile” because binding precedent “foreclosed the argument.” Marlowe, 6 F.4th at 571 (“Generally speaking, habeas proceedings are not the time to raise arguments a prisoner could have made, but did not, in the proceedings culminating in his conviction.”).
In his attempt to satisfy this prong, Grady first points to the Fourth Circuit's decision in Young v. Antonelli, 982 F.3d 914 (4th Cir. 2020), which concluded that Burrage applies retroactively and held that Burrage applies to pre-Booker sentencing errors under U.S.S.G. § 2D1.1(a). Grady argues that the court in Burrage recognized that Fourth Circuit settled law did not require a showing of “but-for” causation to satisfy § 841(b)(1)(C), and he notes that the Government conceded as much in that case. Grady misreads Young. Young sought habeas relief under § 2241 and Wheeler, arguing that his sentence was unlawfully enhanced based on the corollary “death results” provision of U.S.S.G. § 2D1.1(a). Young, 982 F.3d at 915-16. The district court denied Young's petition, concluding that Young's petition was premature because Burrage had not been applied to the Sentencing Guidelines. Id. On appeal, the only issue before the Fourth Circuit was whether Young could meet the second prong of Wheeler-that the settled substantive law changed and was deemed to apply retroactively on collateral review. Id. at 91718. The Fourth Circuit expressly noted that the respondent did not contest Young's ability to satisfy the first prong-whether the settled law established the legality of the sentence-and therefore, the Court restricted its analysis to the second prong. Id. at 917 n.3. Consequently, Young does not stand for the proposition that the settled law of the Fourth Circuit prior to Burrage foreclosed the argument that the Government must prove “but-for” causation to satisfy the death results provision of § 841(b)(1)(C).
Grady next points to the Fourth Circuit's decisions in United States v. Patterson, 38 F.3d 139 (4th Cir. 1994), and United States v. Harris, 225 F.3d 656 (4th Cir. 2000) (unpublished), to argue that his “but-for” causation argument was foreclosed at the time of his conviction. Specifically, Grady argues that because the Fourth Circuit in Harris cited Patterson to hold that § 841(b)(1)(C) “does not suggest that the [drug at issue] must be the sole cause of death or serious bodily injury,” (Pet.'s Resp., ECF No. 28 at 5-6) (original alterations), Patterson foreclosed any argument that § 841(b)(1)(C) required “but-for” causation. However, the reference to “sole cause” in Patterson and Harris is not synonymous with “but-for” cause because an act can be a “but-for” cause of an injury even if it is not the only cause of an injury. See, e.g., Burrage, 571 U.S. at 21112 (explaining that but-for cause is the minimum requirement for finding cause and does not exclude the possibility that other acts contributed to the result). Also the Fourth Circuit in Patterson and Harris did not define the precise causation standard under § 841(b)(1)(C); the Court merely rejected the defendants' arguments that § 841(b)(1)(C) required the Government to demonstrate that the distributed drug was the sole cause of the victim's death. Therefore, had Grady sought to argue that § 841(b)(1)(C) required “but-for” causation in his original criminal proceeding in the Wester District of Virginia, Patterson and Harris would not have foreclosed that argument.
Moreover, on March 25, 2010, months before Grady's change of plea hearing and sentencing, the Fourth Circuit issued an unpublished decision in United States v. Schnippel, 371 Fed.Appx. 418, 419 (4th Cir. 2010), which expressly stated that to establish the death results element of the sentencing enhancement at issue here, “the Government must show that the victim's use of the heroin received from [the defendant] was a but for cause of [the victim's] death.” Schnippel, 371 Fed.Appx. at 419 (citing United States v. Hatfield, 591 F.3d 945, 948 (7th Cir. 2010)). Though Schnippel is unpublished and did not squarely consider the question of what level of causation must be shown under § 841(b)(1)(C), it shows that such an argument was not foreclosed at the time of Grady's original criminal proceeding. Therefore, Grady fails to meet the first prong of the test in Wheeler to meet the saving clause to show that § 2255 is inadequate or ineffective to test the legality of his conviction. See Marlowe, 6 F.4th at 571-72 (“The exclusion of previously available claims from Section 2255's reach compels a similar approach to the savings clause.”).
Consequently, the court finds this matter should be dismissed for lack of subject matter jurisdiction. See Wheeler, 886 F.3d at 426 (holding that the savings clause requirements are jurisdictional and may not be waived); see also Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995) (stating that dismissal pursuant to Rule 12(b)(1), rather than summary judgment, is appropriate when the court concludes it lacks jurisdiction over an action).
In light of the court's conclusions, the court need not address Respondent's arguments that Grady's petition fails to meet the second and fourth prongs of Wheeler, or that Grady's Amended Petition fails on the merits or that the Amended Petition is an abuse of the writ pursuant to 28 U.S.C. § 2244(a).
RECOMMENDATION
For the foregoing reasons, the court recommends that Respondent's motion to dismiss (ECF No. 20) be granted and that this case be dismissed for lack of subject matter jurisdiction.
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
901 Richland Street
Columbia, South Carolina 29201
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).