Opinion
C/A 4:21-3005-BHH-TER
09-29-2021
Alonzo Houston, #14598-001, Petitioner, v. Warden Merkinburg, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge.
Petitioner is a federal prisoner. Petitioner was sentenced by the United States District Court for the Northern District of Alabama. 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 Court.
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
Petitioner alleges he is contesting the legality of his “conviction upon detention” and “legality of his conviction under 18 U.S.C. § 924(c)(1)(A) brandishing.” (ECF No. 1 at 2). On July 14, 2004, Petitioner was convicted of count one under 18 U.S.C. § 2113(a) and (d), bank robbery by firearm and count two under 18 U.S.C. § 924(c)(1)(A)(ii), brandishing a firearm in relation to and during a credit union robbery and sentenced 300 months and 84 months respectively. U.S. v. Houston, 04-H-179 (N.D. Ala.). Petitioner filed both a direct appeal and a § 2255 motion in the sentencing court.
Petitioner argues as Ground One that brandishing is “non-criminal conduct” and Ground Two that the trial court violated the Fifth Amendment by impermissible constructive amendment of the indictment via the jury instructions. (ECF No. 1 at 7). In the attached memorandum to the Petition, Petitioner argues he meets Jones via Julian as to Ground One and via Madden as to Ground Two. (ECF No. 1-1 at 1).
The instant Petition, filed pursuant to 28 U.S.C. § 2241, is subject to summary dismissal because “it 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)). 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. 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).
Out of an abundance of caution, both the Jones test and the Wheeler test will be addressed. Petitioner cannot meet either test.
Petitioner fails to satisfy criteria set forth by the Fourth Circuit to determine whether a § 2255 motion would be inadequate or ineffective to test the legality of a prisoner's detention. In In re Jones, 226 F.3d 328 (4th Cir. 2000), the court held that a petitioner must show:
(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.Id. at 333-34.
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.
In evaluating claims under the savings clause, the court is to look to the substantive law of the circuit where a defendant was convicted. Hahn v. Moseley, 931 F.3d 295 (4th Cir. 2019)(internal cites omitted); Pullins v. Dobbs, No. 0:19-CV-3492-JFA, 2020 WL 4581743, at *3 (D.S.C. Aug. 10, 2020)(rejecting applicability of Fourth Circuit cases Lockhart and Gary in analyzing subject matter jurisdiction by a 2241 Petitioner sentenced out of Georgia)(appeal filed Aug. 25, 2020). As Petitioner here was convicted in the United States District Court of the Northern District of Alabama, this court considers the substantive law of the Eleventh Circuit Court of Appeals.
Petitioner cites to U.S. v. Julian, 633 F.3d 1250 (11th Cir. 2011) to argue his conduct is noncriminal. (ECF No. 1-1 at 1). Julian stands for the holding that a sentence under 924(j) can run concurrently as opposed to consecutively to the sentence for the underlying crime of violence and does not stand for what Petitioner argues. Further, Julian was in 2011. Alleyne v. U.S., 570 U.S. 99 (2013) overruled Julian. See United States v. Gonzales, 841 F.3d 339, 358 (5th Cir. 2016). Moreover, Petitioner already argued Alleyne in an attempt to meet the savings clause and was summarily dismissed on that argument in a prior 2241 in this court. Houston v. Phelps, No. 4:21-17-BHH-TER (2021)(ECF Nos. 23, 29).
“In contrast, the jury in Petitioner's case was charged with finding the elements for a brandishing offense. United States v. Houston, 2:04-cr-179-RDP-SGC (N.D. Ala. Feb. 14, 2005, ECF No. 60 at 126-130, 144-146). Thus, the “element” that was problematic in Alleyne was submitted to Petitioner's jury in his case and the jury found him guilty. Further, Alleyne cannot be used to meet the savings clause because it is a constitutional case and not a statutory interpretation case. See Roche v. Breckon, No. 7:18-CV-00325, 2020 WL 1121108, at *3 (W.D. Va. Mar. 6, 2020); Poe v. LaRiva, 834 F.3d 770, 774 (7th Cir. 2016). Petitioner could have sought § 2255 relief by seeking leave to file a § 2255 motion within one year of Alleyne, but the failure to do so does not make § 2255 ineffective/inadequate for savings clause purposes. See Mueller v. Warden of Lee Cty. No. 7:19-CV-00019, 2020 WL 1433547, at *5 (W.D. Va. Mar. 23, 2020). Thus, Alleyne is not of assistance to this Petitioner to meet the In re Jones savings clause test.”
Thus, as to Ground One, Petitioner cannot meet the second element of Jones or Wheeler by way of Julian or Alleyne.
For Petitioner's argument as to Ground Two about amendment of the indictment via jury instructions, Petition cites to United States v. Madden, 733 F.3d 1314 (11th Cir. 2013) as the change in law meeting the savings clause test. (ECF No. 1-1 at 3). Madden stands for the proposition that a defendant can be convicted only of a crime that is properly charged in the indictment. Id. at 1318. A constructive amendment to an indictment occurs when the essential elements of the offense contained in the indictment are altered to broaden the possible bases for conviction beyond what is contained in the indictment. Madden did not render Petitioner's conduct of brandishing a firearm in relation to and during a credit union robbery non-criminal and cannot assist Petitioner in meeting the Jones test.
There is no case law supportive of any retroactivity of Madden and thus Petitioner cannot meet the second element of the Wheeler test.
Petitioner makes no argument, but attaches a recent denial of a successive 2255 docket entry. (ECF No. 1-1 at 10). Petitioner had argued Davis to the Eleventh Circuit Court of Appeals. “Davis does not apply to Houston's claims.” No. 21-12376 (11th Cir. July 21, 2021). “Specifically, the predicate offense for Houston's § 924(c) conviction was armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), which we have determined qualifies as a crime of violence under § 924(c)(3)(A)'s elements clause, which remains valid even after Davis. In re Hines, 824 F.3d 1334, 1336-37 (11th Cir. 2016) (determining that an applicant's § 924(c) conviction was valid because armed bank robbery was a predicate offense under § 924(c)'s elements clause, even assuming that § 924(c)'s residual clause was unconstitutional). As such, Houston cannot show that the Supreme Court's invalidation of § 924(c)(3)(B) in Davis has any bearing on the constitutionality of his § 924(c) conviction and sentence.” Id. In Petitioner's particular context, Petitioner's recent denial of a successive application for § 2255 has no bearing on the § 2241 jurisdiction of this court.
Because Petitioner has not shown 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, the undersigned recommends this matter be dismissed.
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.
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).