Opinion
2:23-cv-04393-MGL-MGB
01-05-2024
Diego Poloche, #27840-055, Petitioner, v. Warden, F.C.I. Edgefield, Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Diego Poloche (“Petitioner”), a federal prisoner proceeding pro se, brings this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2) (D.S.C.), the undersigned United States Magistrate Judge has reviewed the petition and submits this Report and Recommendation to the United States District Judge. For the reasons discussed below, the undersigned recommends that the petition be summarily dismissed.
BACKGROUND
Petitioner is an inmate at the Federal Correctional Institution, Edgefield (“F.C.I. Edgefield”) in Edgefield, South Carolina. On October 22, 2018, Petitioner pled guilty before the United States District Court for the Western District of New York to possession of cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (“Count 1”) and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i) (“Count 8”).(See United States v. Poloche, Crim. Case No. 1:17-cr-223-LJV-JJM, Dkt. No. 23.) Petitioner was then sentenced to time served plus three years' supervised release on Count 1 and 57 months' imprisonment plus five years' supervised release on Count 8, with the terms of imprisonment imposed consecutively and the terms of supervised release imposed concurrently. (Crim. Case No. 223, Dkt. Nos. 69, 70.) He did not file a direct appeal.
A federal court may take judicial notice of the contents of its own records, as well as those records of other courts. See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); see also Tisdale v. South Carolina Highway Patrol, No. 0:09-cv-1009-HFF-PJG, 2009 WL 1491409, at *1 n.1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. Aug. 27, 2009) (noting that the court may also take judicial notice of factual information located in postings on government web sites). The undersigned therefore takes judicial notice of the records filed in Petitioner's underlying criminal case and subsequent appeal in reaching the recommendation herein.
On February 21, 2023, Petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel. (Crim. Case No. 223, Dkt. No. 78.) Petitioner argued that his counsel failed to “inform him of the relevant circumstances and likely consequences of proceeding to trial,” “conduct an adequate and independent pretrial investigation,” “file any substantive pretrial motions,” and “negotiate a favorable plea agreement.” (Id. at 4.) Upon an initial screening, the district court found that Petitioner's motion was untimely and gave him an opportunity to show cause as to why his motion should not be dismissed. (Crim. Case No. 223, Dkt. No. 79.) Petitioner filed a response on April 4, 2023 (Crim. Case No. 223, Dkt. No. 81), and the district court ultimately dismissed Petitioner's motion as time-barred on September 6, 2023 (Crim. Case No. 223, Dkt. No. 82).
It is against this procedural background that Petitioner now brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his eligibility to receive earned time credits under the First Step Act (“FSA”). (Case No. 2:23-cv-4393-MGL-MGB, Dkt. No. 1.) As Petitioner notes, the FSA allows federal prisoners who successfully complete evidence-based recidivism reduction programs and productive activities to earn time credits to be applied by the Federal Bureau of Prisons (“BOP”) towards time in pre-release custody or supervised release. (Dkt. No. 1-4 at 3-4.) See also 18 U.S.C. § 3632(d)(4)(A). Notably, a prisoner is ineligible to receive time credits under the FSA if he is “serving a sentence for a conviction . . . under Section 924(c), relating to unlawful possession or use of a firearm during and in relation to any crime of violence or drug trafficking crime.” 18 U.S.C. § 3632(d)(4)(D)(xxii).
While Petitioner acknowledges that he pled guilty to possession of a firearm in violation of 18 U.S.C. § 924(c)(1)(A)(i), he contends that he “is in fact eligible to receive the time credits under the FSA based on the relevant facts of his case because he did not possess or use the firearms related to any crime of violence or drug trafficking crime....” (Case No. 4393, Dkt. No. 1-4 at 6; Dkt. No. 1 at 9.) More specifically, Petitioner points to United States v. Taylor, 596 U.S. __, 142 S.Ct. 2015 (2022), in which the United States Supreme Court determined that attempted robbery under the Hobbs Act, 18 U.S.C. § 1951, does not qualify as a “crime of violence” for purposes of § 924(c)(3). Petitioner argues that if attempted robbery-a “deadly” offense as described in the Taylor case-does not constitute a “crime of violence” under § 924(c)(3), his conduct likewise does not rise to such a level, as “he did not even possess the firearms” at the time of his arrest. (Case No. 4393, Dkt. No. 1-4 at 7.) Rather, Petitioner claims that “he was arrested during a traffic stop while his weapons remained at his apartment.” (Id.) Petitioner therefore asks that the Court direct the BOP to “update [his] status in their system as being eligible to receive and apply those time credits earned in accordance with the law under the FSA.” (Case No. 4393, Dkt. No. 1 at 10.)
STANDARD OF REVIEW
Under the established local procedure in this judicial district, a careful review has been made of Petitioner's pro se petition pursuant to the Rules Governing Section 2254 Cases in the United States District Courts;the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”); and 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, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); and Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
See Rule 1(b), Rules Governing § 2254 Cases (allowing district courts to apply the rules to § 2241 petitions).
The narrow question before the Court is whether it “plainly appears” that Petitioner is not entitled to any relief. Rule 4, Rules Governing § 2254 Cases. If so, his petition must be dismissed; if not, the warden must respond. Id. Because Petitioner is a pro se litigant, his petition is accorded liberal construction. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007); Gordon, 574 F.2d at 1151. Even under this less stringent standard, however, the Court cannot ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
DISCUSSION
As noted above, the instant petition appears to challenge the execution of Petitioner's sentence by arguing that his conduct does not amount to a “crime of violence” under the holding in United States v. Taylor and, consequently, does not preclude him from receiving earned time credits through the FSA's recidivism reduction programs.(Case No. 4393, Dkt. No. 1-4 at 6-7.) However, Petitioner misapplies the Taylor Court's decision, as his conviction under 18 U.S.C. § 924(c) involved possession of a firearm in furtherance of a drug trafficking crime, not a crime of violence. (Id. at 4; see also Crim. Case No. 223, Dkt. Nos. 21, 70.) And the relevant statutory language plainly states that unlawful possession or use of a firearm during and in relation to “any crime of violence or drug trafficking crime” is a disqualifying offense under the FSA. 18 U.S.C. § 3632(d)(4)(D)(xxii) (emphasis added). In other words, contrary to Petitioner's suggestion, his conviction for possession of a firearm in furtherance of a drug trafficking crime under § 924(c) precludes him from receiving earned time credits regardless of whether the conduct also constituted a crime of violence.
A federal prisoner may challenge the “legality” or “execution” of his detention under § 2241, so long as he is not attacking the validity of his sentence. See Preiser v. Rodriguez, 411 U.S. 475, 494 (1973) (explaining that an inmate may challenge “the fact or length of confinement” or the “execution” of the confinement under § 2241); see also Jones v. Hendrix, 599 U.S. 465, 475 (2023) (noting that § 2241 is the proper vehicle for a prisoner to contest the denial of good time credits).
It is also worth noting that the Supreme Court's holding in United States v. Taylor did not discuss whether a prisoner convicted of attempted robbery under the Hobbs Act is eligible to receive earned time credits under the FSA; rather, it addressed whether the offense triggered the enhanced punishment prescribed under § 924(c)(1)(A). See United States v. Taylor, 596 U.S. __, 142 S.Ct. 2015, 2025-26 (2022).
Moreover, while Petitioner presents his argument under 28 U.S.C § 2241, the petition-at its core-more accurately challenges the validity of Petitioner's conviction under § 924(c), not the execution of his sentence. Indeed, Petitioner spends much of the pleading reiterating that the firearms in this case were not in his “possession” or “in use” during the “drug transaction” that occurred in his vehicle; rather, they were “found at his apartment in a dresser drawer and . . . in a closet.” (Case No. 4393, Dkt. No. 1-4 at 6.) Petitioner therefore maintains that he could not have possessed or used the firearms “in furtherance” of a drug trafficking crime as contemplated by § 924(c). (See id. at 5, arguing that the firearm must “be strategically located so that it is quickly and easily available for use” and “promote or facilitate the crime.”) Thus, Petitioner's argument, for all practical purposes, challenges the adequacy of the facts underlying his § 924(c) conviction and asks this Court to disregard the validity of the same.
It is well-established that a federal prisoner generally must challenge the legality of his conviction and/or sentence pursuant to 28 U.S.C. § 2255. Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010); In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997). Once a federal prisoner has filed an unsuccessful § 2255 motion, as Petitioner has done here, he may submit a second or successive motion only upon a showing of “newly discovered evidence,” or a new, retroactive “rule of constitutional law.” 28 U.S.C. § 2255(h)(1), (2). Notably, a prisoner cannot circumvent these restrictions on second or successive § 2255 motions by challenging his conviction and/or sentence in a petition for a writ of habeas corpus under 28 U.S.C. § 2241. See Jones v. Hendrix, 599 U.S. 465, 480 (2023) (holding that a federal prisoner may not use § 2241 to mount a successive collateral challenge to his conviction and/or sentence simply because he cannot satisfy the restrictions under § 2255(h)). Because Petitioner cannot satisfy either of the requirements for a second or successive petition, the undersigned finds that it would be futile to construe his argument under § 2255 and declines to do so at this time. See Rice, 617 F.3d at 807 (providing that if a federal prisoner brings an improper § 2241 petition, the district court must dismiss the unauthorized successive habeas petition for lack of jurisdiction).
CONCLUSION
Based on the above, the undersigned finds that Petitioner cannot cure the deficiencies in his petition and therefore RECOMMENDS that the Court DISMISS the petition without prejudice and without an opportunity to amend.
IT IS SO RECOMMENDED.
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 835
Charleston, South Carolina 29402
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).