Opinion
1:21-cv-82
11-18-2022
ISAIAH HICKS, Petitioner v. BRADLEY TRATE, Respondent
SUSAN PARADISE BAXTER United States District Judge
REPORT AND RECOMMENDATION
Richard A. Lanzillo Chief United States Magistrate Judge
I. Recommendation
It is respectfully recommended that the petition for a writ of habeas corpus filed by federal prisoner Isaiah Hicks (Petitioner) pursuant to 28 U.S.C. § 2241 be dismissed.
At the time that he filed his petition, Petitioner was incarcerated at FCI-McKean, a federal correctional institution located within the territorial boundaries of the Western District of Pennsylvania. The Warden of FCI-McKean is the Respondent in this action.
II. Report
A. Background
On March 2, 2010, a grand jury in the United States District Court for the Northern District of Illinois returned a superseding indictment charging Petitioner with the following offenses: 1) conspiracy to possess with intent to distribute and to distribute 50 grams or more of crack cocaine and 5 kilograms or more of cocaine, in violation of 21 U.S.C. § 846 (Count 1); 2) distribution of cocaine base in the form of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) (Counts 2 and 9); 3) possession with intent to distribute cocaine base in the form of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) (Counts 13 and 17); 4) using a telephone to commit a narcotics trafficking crime, in violation of 21 U.S.C. § 843(b) (Counts 4, 7, 8, 10, 11, and 16); 5) using a firearm during and in relation to a narcotics trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 18); and 6) being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (Count 19). ECF No. 21-1. Following a trial, a jury found Petitioner guilty of Counts 1, 2, 4, 7, 8, 9, 10, 11, 17, and 18. ECF No. 21 -3. The jury did not consider Count 19 - the §922(g) felon in possession charge - because the Court had previously granted a defense motion to sever that count for trial purposes. ECF No. 21-5. The government later made an oral motion to dismiss Count 19 at sentencing, which the Court granted. ECF No. 21-6. The Court then sentenced Petitioner to 30 years of imprisonment based on a 25-year sentence for the narcotics offenses and the mandatory consecutive 5-year sentence for the § 924(c) conviction. Id.
Petitioner filed a timely appeal. On April 1, 2014, the Court of Appeals for the Seventh Circuit affirmed the district court's judgment and dismissed the appeal. See United States v. Long, 748 F.3d 322 (7th Cir. 2014). Petitioner then filed a Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255, which the sentencing court denied without a hearing. United States v. Hicks, 886 F.3d 648, 650 (7th Cir. 2018). The Seventh Circuit affirmed the denial of Petitioner's § 2255 motion on April 2, 2018. Id.
The instant petition ensued. In his petition, Petitioner maintains that he is actually innocent of his § 924(c) charge based on the United States Supreme Court's decision in Rehaif v. United States, - U.S. -, 139 S.Ct. 2191 (2019). In Rehaif, the Supreme Court held that to convict a defendant under 18 U.S.C. § 922(g), the Government “must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status [as, inter alia, a felon] when he possessed it.” 139 S.Ct. at 2194. Somewhat opaquely, Petitioner maintains that Rehaif's holding “has to [do] with 922(g) and 924(a) proves [his] factual innocence of § 924(c).” ECF No. 10 at 7. Following a response by the government, see ECF No. 21, Petitioner's Rehaif argument is ripe for review.
This matter has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
B. Discussion
Before examining the merits of Petitioner's claims, the Court must determine whether they are cognizable in a § 2241 action. For federal prisoners, “[t]he ‘core' habeas corpus action is a prisoner challenging the authority of the entity detaining him to do so, usually on the ground that his predicate sentence or conviction is improper or invalid.” McGee v. Martinez, 627 F.3d 933, 935 (3d Cir. 2010); see also Cardona v. Bledsoe, 681 F.3d 533, 535-38 (3d Cir. 2012). “Two federal statutes, 28 U.S.C. §§ 2241 & 2255, confer federal jurisdiction over habeas petitions filed by federal inmates.” Cardona, 681 F.3d at 535. Section 2255 motions must be filed in the federal district court that imposed the conviction and sentence the prisoner is challenging. 28 U.SC. § 2255(a). In contrast, a habeas corpus action pursuant to § 2241 must be brought in the custodial court - i.e., the federal district court in the district in which the prisoner is incarcerated. Bruce v. Warden Lewisburg USP, 868 F.3d 170, 178 (3d Cir. 2017).
Section 2241 petitions must be filed in the district in which the prisoner is incarcerated because:
[t]he prisoner must direct his [§ 2241] petition to “the person who has custody over him.” § 2242; see also Wales v. Whitney, 114 U.S. 564, 574, 5 S.Ct. 1050, 29 L.Ed. 277 (1885); Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 494-95, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). Longstanding practice under this immediate custodian rule “confirms that in habeas challenges to present physical confinement...the default rule is that the proper respondent is the warden of the facility where the prisoner is being held.” Rumsfeld v. Padilla, 542 U.S. 426, 435, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004). And under the statute's jurisdiction of confinement rule, district courts may only grant habeas relief against custodians “within their respective jurisdictions.” § 2241(a); see also Braden, 410 U.S. at 495, 93 S.Ct. 1123 (“[T]he language of § 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian.”).Bruce, 868 F.3d at 178.
Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal prisoners may challenge the validity of their conviction or sentence on collateral review. Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002) (emphasis added). Bruce, 868 F.3d at 178 (“[A] federal prisoner's first (and most often only) route for collateral review of his conviction or sentence is under § 2255.”). In contrast, § 2241 “confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but the execution of his sentence.” Cardona, 681 F.3d at 535 (internal quotations and citations omitted) (emphasis added); Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 243 (3d Cir. 2005) (defining “execution of' the sentence to mean the manner in which it is “put into effect” or “carr[ied] out”). The interplay of these two statutes ordinarily prohibits a court from entertaining a § 2241 petition filed by a federal prisoner challenging the validity of his underlying conviction or sentence.
There is, however, one important statutory exception: where it “appears that the remedy by [§ 2255 motion] is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). To date, the Court of Appeals for the Third Circuit has applied this provision, commonly referred to as § 2255's “savings clause,” in only one circumstance: when a prisoner “had no earlier opportunity to challenge his conviction for a crime that an intervening change in substantive law may negate.” In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). See also Bruce, 868 F.3d at 179 (“[I]n the unusual situation where an intervening change in statutory interpretation runs the risk that an individual was convicted of conduct that is not a crime, and that change in the law applies retroactively in cases on collateral review,” a petitioner “may seek another round of post-conviction review under § 2241.”).
An inmate must satisfy two conditions to take advantage of § 2255 's savings clause under Dorsainvil. “First, a prisoner must assert a claim of actual innocence on the theory that he is being detained for conduct that has subsequently been rendered non-criminal by an intervening Supreme Court decision and our own precedent construing an intervening Supreme Court decision - in other words, when there is a change in statutory caselaw that applies retroactively in cases on collateral review.” Bruce, 868 F.3d at 180 (internal quotations omitted). “[S]econd, the prisoner must be ‘otherwise barred from challenging the legality of the conviction under § 2255.”' Id. (quoting U.S. v. Tyler, 732 F.3d 241, 246 (3d Cir. 2013)).
Petitioner's Rehaif claim appears to fall squarely within the scope of the Dorsenvail savings clause. Because Rehaif represents an intervening decision of statutory construction issued by the United States Supreme Court, and because Petitioner is alleging that he is being detained for conduct that has been rendered non-criminal by that decision, this Court has jurisdiction to consider his claim. See Richardson v. Warden of USP-Allenwood, 2021 WL 5038960, at *4 (M.D. Pa. Oct. 29, 2021) (“We find that Richardson may bring his knowledge of status claim pursuant to the Third Circuit's holding in Dorsainvil. . . because Rehaif could negate his conviction for unlawful possession of a firearm and Richardson had already filed a § 2255 motion by the time Rehaif was decided in 2019”); In re Sampson, 954 F.3d 159, 161 (3d Cir. 2020) (holding that Rehaif “did not set forth a new rule of constitutional law as contemplated by § 2255(h)” and, thus, a second or successive § 2255 based on Rehaif would not be permitted).
Overcoming this jurisdictional hurdle, however, is only the first step towards obtaining relief. To ultimately prevail on his claim of actual innocence, Petitioner must demonstrate that, but for the Rehaif error, “it is more likely than not that no reasonable juror would have convicted him.” Bruce, 868 F.3d 184 (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)/ See also Greer v. United States, 141 S.Ct. 2090, 2097 (2021). In support of his claim, Petitioner presents only the following argument:
Violation of 922(g) the term “Knowingly” is normally read as applying to all the subsequently listed elements of a crime, the change in law made by Supreme Court is a new element for Title 18 U.S.C. § 922(g) “Status Element”. The underlining offence of 924(c) is 922(g) possession of a firearm and the elements there of. I was never indicated nor found guilty of the “Status Element.”ECF No. 10 at 7.
Respondent's argument in opposition is both succinct and ironclad: Petitioner's Rehaif-based challenge to the knowledge-of-status element of § 922(g) must fail for the simple reason that Petitioner was never convicted of a § 922(g) crime. Although a grand jury indicted Petitioner on one charge of being a felon in possession, that charge was severed prior to trial and subsequently dismissed on the government's motion at sentencing. Consequently, Petitioner's argument that he was “never indicted nor found guilty of the ‘Status Element'” of § 922(g) has no bearing on his conviction or sentence. No relief is warranted.
By way of background, Section 922(g) makes it illegal for certain individuals, including convicted felons, to possess firearms. See 18 U.S.C. § 922(g)(1). 18 U.S.C. § 924(a)(2) provides that anyone who "knowingly” violates that provision is subject to up to ten years imprisonment. In Rehaif, the United States Supreme Court clarified that the word “knowingly” in § 924(a)(2) applies to both elements of a § 922(g) charge - i.e., “both to the defendant's conduct and to the defendant's status.” Rehaif, 139 S.Ct. at 2194. In other words, to convict an individual of violating § 922(g), the government must show that the defendant knew he possessed a firearm and knew that he was a convicted felon. United States v. Boyd, 999 F.3d 171, 183 (3d Cir. 2021).
To the extent that Petitioner suggests that Rehaif provides a basis for overturning his § 924(c) conviction, Petitioner is again incorrect. Unlike § 922(g), the “knowledge of status” requirement addressed in Rehaif is not an element of a § 924(c) violation. See United States v. Bobb, 471 F.3d 491, 496 (3d Cir. 2006) (noting that the “essential elements” of a § 924(c) violation are that the defendant committed a drug trafficking crime and “knowingly possessed a firearm” in furtherance of that crime). As such, each court to have confronted the issue has expressly declined to extend Rehaif to § 924(c) convictions. See United States v. Bilodeau, 2022 WL 4940141, at *2 (D. Maine Oct. 4, 2022) (“Rehaif did not address the requisite mens rea for a violation of 18 U.S.C. § 924(c)(1)(A), which is charged here.”); United States v. Sampo, 2020 WL 7634161, at *4 (D. Alaska Dec. 22, 2020) (concluding Rehaif is “inapplicable” to § 924(c)); United States v. Tatum, 2021 WL 795158, at *17 (D. Md. Mar. 2, 2021) (concluding that Rehaif, which “involved a conviction ... under 18 U.S.C. § 922(g) and § 924(a)(2),” was “entirely inapplicable to [the defendant]'s conviction under § 924(c)”). The Court agrees with this analysis; absent any authority to the contrary, the same conclusion is warranted here.
Section 924(c) provides for enhanced penalties when an individual is convicted of misconduct involving a firearm and a federal “drug trafficking offense,” defined as “any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or Chapter 705 of Title 46.” See United States v. Fielder, 2020 WL 5232824, at *3 (W.D. Pa. Sept. 2, 2020).
In short, Petitioner has failed to establish that, had the district court correctly advised the jury (or grand jury) as to the mens rea element of a felon-in-possession offense, he would not have been convicted. Greer, 141 S.Ct. at 2097. Accordingly, his petition is without merit and must be dismissed.
III. Conclusion
For the foregoing reasons, it is respectfully recommended that the petition for a writ of habeas corpus be dismissed, with prejudice.
Because “[f]ederal prisoner appeals from the denial of a habeas corpus proceeding are not governed by the certificate of appealability requirement,” the Court need not make a certificate of appealability determination in this matter. Williams v. McKean, 2019 WL 1118057, at *5 n. 6 (W.D. Pa. Mar. 11, 2019) (citing United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000), abrogated on other grounds by Gonzalez v. Thaler, 565 U.S. 134 (2012)); 28 U.S.C. § 2253(c)(1)(B).
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).