Opinion
C. A. 9:23-03347-HMH-MHC
10-10-2023
Carlos D. Robinson, a/k/a Carlos Demond Robinson, Petitioner, v. Warden Janson, Respondent.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
Petitioner Carlos D. Robinson, proceeding pro se and in forma pauperis, brings this action as an application for writ of habeas corpus (Petition) pursuant to 28 U.S.C. § 2241 (§ 2241). He is a federal inmate at FCI-Edgefield. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
I. BACKGROUND
“On May 26, 2004, after a jury trial, Petitioner was found guilty of conspiracy to possess and possession with intent to distribute crack cocaine and cocaine in violation of 21 U.S.C. § 841(b)(1)(A), two counts of possession with intent to distribute 50 grams or more of crack cocaine and a quantity of cocaine in violation of 21 U.S.C. § 841(b)(1)(A), two counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), and two counts of using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c).” Robinson v. Phelps, No. 920CV02356HMHMHC, 2021 WL 3375524, at *1 (D.S.C. July 12, 2021), report and recommendation adopted, 2021 WL 3375520 (D.S.C. Aug. 3, 2021). Petitioner was ultimately sentenced to 960 months' imprisonment (including a 360-month sentence on the drug charges, 120-month concurrent sentence on the felon in possession charges, and two consecutive 300-month sentences on the § 924(c) convictions). He appealed his convictions and the Fourth Circuit remanded pursuant to United States v. Booker, 543 U.S. 220, 245 (2005). See United States v. Robinson, 221 Fed.Appx. 236, 244 (4th Cir. 2007). Petitioner was again sentenced to a 960-month sentence based on the advisory sentencing guidelines, and the Fourth Circuit affirmed Petitioner's convictions and sentences on February 14, 2008. See United States v. Robinson, 264 Fed.Appx. 332, 333-34 (4th Cir. 2008).
Petitioner filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, that was dismissed on October 27, 2008. See United States v. Robinson, No. CR. 6:03-616-HMH, 2008 WL 4833015, at *5 (D.S.C. Oct. 27, 2008). The Fourth Circuit dismissed his appeal. See United States v. Robinson, 350 Fed.Appx. 837, 838 (4th Cir. 2009). On August 5, 2010, Petitioner filed a motion for relief from judgment pursuant to Rule 60 of the Federal Rules of Civil Procedure, which the District Court denied. See United States v. Robinson, Cr. No. 6:03-616-HMH (D.S.C. Aug. 11, 2010), Doc. No. 238. Petitioner appealed, and the Fourth Circuit dismissed the appeal, explaining that Petitioner's Rule 60 motion directly attacked his convictions and therefore was an unauthorized and successive § 2255 motion. See United States v. Robinson, 416 Fed.Appx. 317, 317-18 (4th Cir. 2011). Petitioner filed two other motions in 2011 and 2014, which were dismissed as successive § 2255 motions. See United States v. Robinson, No. CR 6:03-616-HMH, 2011 WL 13238748, at *1 (D.S.C. Aug. 8, 2011); United States v. Robinson, No. CR 6:03-616-HMH, 2014 WL 12634793, at *1-2 (D.S.C. Dec. 1, 2014).
Subsequent notations to “Doc. No. ” in this report and recommendation refer to pleadings in Petitioner's criminal case number 6:03-cr-00616-HMH.
On July 13, 2016, the Fourth Circuit granted Petitioner's application requesting permission to file a second or successive § 2255 motion in light of Johnson v. United States, 576 U.S. 591 (2015) (holding that the residual clause in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague). Petitioner argued that he was improperly sentenced as a career offender under the United States Sentencing Guidelines (U.S.S.G.), § 4B1.1 pursuant to Johnson. However, the § 2255 motion was dismissed for lack of merit. It was noted that even assuming Johnson applied to career offender enchantments under the U.S.S.G., it would afford Petitioner no relief because he still qualified as a career offender under the U.S.S.G. because he had at least two qualifying convictions for either a controlled substance offense or a crime of violence. See United States v. Robinson, No. CR 6:03-616-HMH, 2016 WL 7496167, at *3 (D.S.C. July 18, 2016). The Fourth Circuit dismissed his appeal. See United States v. Robinson, 672 Fed.Appx. 330, 330-31 (4th Cir. 2017).
Petitioner then filed a motion for sentence reduction pursuant to § 404 of the First Step Act, Pub. L. No. 115-391, December 21, 2018, 132 Stat. 5194, and for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). On June 10, 2020, the District Court denied his motion for compassionate release and reduced Petitioner's sentence to a total of 601 months' imprisonment followed by an 8-year term of supervised release. United States v. Robinson, No. CR 6:03-616-HMH, 2020 WL 3071939, at *3-5 (D.S.C. June 10, 2020). The Fourth Circuit affirmed the District Court's decision. United States v. Robinson, No. 20-7451, 2021 WL 4957598 (4th Cir. Oct. 26, 2021).
Petitioner filed a § 2241 habeas petition in June 2020, in which he argued that his felon in possession conviction under § 922(g)(1) should be vacated in light of Rehaif v. United States, 139 S.Ct. 2191 (2019) because the jury instructions were allegedly defective. His Petition was dismissed for lack of jurisdiction. Robinson v. Phelps, No. 920CV02356HMHMHC, 2021 WL 3375524 (D.S.C. July 12, 2021), report and recommendation adopted, 2021 WL 3375520 (D.S.C. Aug. 3, 2021).
In August 2020, Petitioner filed another motion for compassionate release (Doc. No. 445), that was denied in September 2020 (Doc. No. 450), and the Fourth Circuit affirmed on October 26, 2021. See United States v. Robinson, No. 20-7451, 2021 WL 4957598 (4th Cir. Oct. 26, 2021). On September 2, 2022, Petitioner filed a renewed motion (Doc. No. 462) for compassionate release, that was denied (Doc. 468) on October 4, 2022. The Fourth Circuit affirmed on February 24, 2023. See United States v. Robinson, No. 22-7205, 2023 WL 2204398 (4th Cir. Feb. 24, 2023)
Petitioner filed another motion (Doc. No. 463) to vacate under § 2255 on September 2, 2022, that was dismissed on October 4, 2022 (Doc. No. 467). On October 17, 2022, Petitioner appealed to the Fourth Circuit (Doc. No. 475), and the case was placed in abeyance (Doc. No. 494) pending a decision by the Fourth Circuit in United States v. Newby, Case No. 21-4018.
In this Petition pursuant to § 2241, Petitioner asserts that he is “seeking a Review of Section 924(c) and a determination of the Constitutionality of that statute[.]” ECF No. 1 at 2. He does not list any ground for relief on the standard petition for a writ of habeas corpus under § 2241 form (Form AO-242), and instead directs the Court to his attached memorandum. See ECF No. 1 at 6, 8, 10-21. In his memorandum, Petitioner asserts that he seeks a declaratory judgment “that the criminal statute 18 U.S.C. § 924(c) as written, prior to the First Step Act of 2018, is unconstitutionally vague.” ECF No. 1 at 10. He also “seeks a second declaratory judgment to the effect to apply the 18 U.S.C. § 924(c) as amended by the First Step Act of 2018, is unconstitutional under the Expo Facto clause.” Id. (errors in original).
Petitioner appears to be referring to the ex post facto clause. Article 1, Section 9, Clause 3 of the United States Constitution prohibits the enactment of any law that is retrospective in nature and disadvantages the offender affected by it. See Lynce v. Mathis, 519 U.S. 433, 441 (1997); Weaver v. Graham, 450 U.S. 24, 28(1981). A law is retrospective if it “changes the legal consequences of acts completed before its effective date.” Weaver, 450 U.S. at 31. An offender is disadvantaged by “any law ‘which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.”' Weaver, 450 U.S. at 28 (citations omitted). As discussed below, this Court lacks jurisdiction over this § 2241 Petition. Even if this Court has jurisdiction over Petitioner's claim, he has not alleged any facts to indicate that the change in law violates the ex post facto clause because the later change in law he identifies did not make an act punishable that was not punishable at the time he committed it and does not impose additional punishment.
II. STANDARD OF REVIEW
A pro se habeas petition is reviewed pursuant to the procedural provisions of the Rules Governing Section 2254 Proceedings in the United States District Court, 28 U.S.C. § 2254; the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996; 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); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). The Court screens a petitioner's lawsuit to determine “[i]f 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.
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b), Rules Governing § 2254 Cases, 28 U.S.C.A. foll. § 2254.
Pro se petitions are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even when considered under this less stringent standard, for the reasons set forth below, the Petition submitted in this case is subject to summary dismissal.
III. DISCUSSION
Although Petitioner characterizes his Petition as seeking a declaratory judgment that § 924(c) is unconstitutionally vague, he brought this action under § 2241. It also appears that Petitioner is attempting to have the Court find that his sentence is unconstitutional because a petition under § 2241 is a habeas corpus proceeding, and habeas corpus proceedings are used by a prisoner to challenge the legality or duration of his custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Thus, this report and recommendation addresses Petitioner's claims under § 2241 as well as a motion for declaratory judgment.
A. § 2241
“[I]t is well established that defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255,” not through a petition filed pursuant to § 2241. 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 provides:
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, 617 F.3d at 807 (court lacked jurisdiction over § 2241 petition outside savings clause). “[T]he 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.” In re Vial, 115 F.3d at 1194 n. 5.
A district court may raise a petitioner's failure to satisfy the savings clause sua sponte, and if a petitioner cannot meet the savings clause requirements, then the § 2241 petition “must be dismissed for lack of jurisdiction.” See Rice, 617 F.3d at 807; see also Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (explaining that a district court has an independent duty to ensure that jurisdiction is proper and to dismiss a case whenever it appears that subject matter jurisdiction is lacking).
The Supreme Court recently held that the savings clause of § 2255(e) does not authorize “a prisoner [to] seek[] relief based on a newly adopted narrowing interpretation of a criminal statute that circuit precedent had foreclosed at the time of the prisoner's trial, appeal, and first § 2255 motion[,]” thus abrogating the Fourth Circuit's savings clause test in In re Jones, 226 F.3d 328, 331 (4th Cir. 2000). See Jones v. Hendrix, 143 S.Ct. 1857, 1868 (2023). Additionally, it appears that the Supreme Court's ruling in Jones v. Hendrix has overruled Wheeler. See, e.g., Hall v. Hudgins, No. 22-6208, 2023 WL 4363658, at *1 (4th Cir. July 6, 2023) (noting Jones v. Hendrix held a petitioner cannot use § 2241 to mount a successive collateral attack on validity of a federal sentence and affirming district court's dismissal of § 2241 petition for lack of jurisdiction).
To proceed under § 2241 prior to Jones v. Hendrix, a petitioner in the Fourth Circuit had to meet the savings clause test as contemplated in In re Jones, 226 F.3d at 333-334 (challenges to convictions) or United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018) (challenges to sentences).
In Jones v. Hendrix, the Court noted that there are only two conditions under which a § 2255 motion may proceed. Id. at 1868. The statute specifically identifies the two conditions as:
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h). The Court further explained that:
The inability of a prisoner with a statutory claim to satisfy those conditions does not mean that he can bring his claim in a habeas petition under the saving clause. It means that he cannot bring it at all. Congress has chosen finality over error correction in his case.Jones v. Hendrix, 143 S.Ct. at 1869.
Here, Petitioner has not satisfied either of the two conditions of § 2255(h). First, he has not identified any newly discovered evidence. Second, although Petitioner challenges the constitutionality of § 924(c), he has not identified any new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court that was previously unavailable. Further, to the extent Petitioner bases his claim on an intervening change in statutory interpretation, “§ 2255(e)'s saving clause does not permit a prisoner asserting an intervening change in statutory interpretation to circumvent AEDPA's restrictions on second or successive § 2255 motions by filing a § 2241 petition.” Jones v. Hendrix, 143 S.Ct. at 1864.
Here, Petitioner appears to only challenge his sentence (not his conviction). Under Wheeler, to demonstrate that a § 2255 motion is inadequate or ineffective to test the legality of a sentence, a petitioner must show that:
(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.Wheeler, 886 F.3d at 429. Even if the Wheeler test was not abrogated by Jones v. Hendrix and is applicable, Petitioner cannot meet the second prong of Wheeler as he has not alleged any facts to indicate that, subsequent to his direct appeal and first § 2255, the settled substantive law changed and was deemed to apply retroactively on collateral review.
Thus, this action is subject to summary dismissal for lack of jurisdiction because Petitioner fails to satisfy the savings clause in 28 U.S.C. § 2255(e). See McNeill v. Warden R. Ramos, No. 23-6488, 2023 WL 6442551 (4th Cir. Oct. 3, 2023) (citing Jones v. Hendrix in dismissing the petitioner's § 2241 petition seeking to challenging his conviction and sentence by way of the savings clause in § 2255, finding that the petitioner could not assert that he was actually innocent of his 18 U.S.C. § 924(c) conviction due to an alleged change in the statutory interpretation of the statute); Hubbard v. Brown, No. 23-6023, 2023 WL 4839396, at *1 (4th Cir. July 28, 2023) (holding that Jones v. Hendrix precluded the petitioner's challenge to his conviction by way of the savings clause on the basis of an intervening change in statutory interpretation); Holmes v. United States, No. 23-6434, 2023 WL 4839596, at *1 (4th Cir. July 28, 2023) (holding that Jones v. Hendrix precluded the petitioner's § 2241 challenge to his conviction and sentence by way of the savings clause). To the extent Petitioner is attempting to file another § 2255 motion, his potential remedy may be to seek permission from the United States Court of Appeals for the Fourth Circuit to file a successive § 2255 petition in this Court.
B. Declaratory Judgment
As noted above, Petitioner states that he seeks only a declaratory judgment. However, he fails to state the basis for such relief. Even if this action is construed as a motion for a declaratory judgment pursuant to Rule 57 of the Rules of Civil Procedure and 28 U.S.C. § 2201 (§ 2201), it is still subject to summary dismissal. See Manigault v. Lamanna, No. 8:06-0047-JFABHH, 2006 WL 1328780 at 4 n. 4 (D.S.C. May 11, 2006) (“This Court is not bound by [the petitioner's] characterization of his claims because, when considering the issue of its own jurisdiction, district courts are authorized to disregard such characterizations to avoid ‘unjust manipulation or avoidance of its jurisdiction.'”). Although Rule 57 and § 2201 permit a party to seek a declaration of rights and “‘the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate,' . . . a declaratory judgment should not be granted where a special statutory proceeding is provided.” Miller v. Burt, No. 3:06-cv-2755-TLW-JRM, 2007 WL 2428542, at *5 (D.S.C. Aug. 21, 2007).
This statute provides, in pertinent part:
(a) In a case of actual controversy within its jurisdiction, except with respect to ..., any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.28 U.S.C. § 2201(a). Section 2201 is “an enabling Act, which confers a discretion on the courts rather than an absolute right upon the litigant.” Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995) (citation omitted). As such, the Court's assumption of jurisdiction over a declaratory judgment action is not “automatic or obligatory.” Id. at 288.
Instead, a prisoner, like Petitioner in this case, must obtain equitable relief through the habeas statutes as provided by Congress. See Miller v. Burt, 2007 WL 2428542, at *5; see also Pruitt v. Campbell, 429 F.2d 642, 645 (4th Cir. 1970) (“Where habeas corpus is an available remedy, it becomes unnecessary to consider whether declaratory relief may be granted.”). Therefore, a declaratory judgment action is not appropriate, and Petitioner's motion for declaratory judgment should be denied without prejudice to his right to seek relief through the appropriate habeas statute. See Miller v. Burt, 2007 WL 2428542, at *5; see also Wilson v. North Carolina, No. 5:23-CT-3199-M, 2023 WL 4569537 (E.D. N.C. July 14, 2023) (“To the extent [the petitioner] attacks the validity of his conviction, he cannot circumvent the provisions of AEDPA through the Declaratory Judgment Act.”); Cyrus v. United States, No. 8:07-cv-2720-CMC, 2007 WL 2815589, at *4 (D.S.C. Sept. 25, 2007) (noting that the plaintiff was not entitled to declaratory relief because of the special provisions of the habeas statutes and that the relief he sought was properly pursued in a habeas action); United States ex rel. Bennett v. Illinois, 356 F.2d 878, 879 (7th Cir. 1996) (stating that the Declaratory Judgment Act “may not be used as a substitute for a petition to correct a sentence in the court where the sentence was imposed”).
To the extent Petitioner seeks habeas relief pursuant to 28 U.S.C. § 2255 in the sentencing court, he must obtain authorization from the United States Court of Appeals for the Fourth Circuit to file a second or successive § 2255 motion. 28 U.S.C. §§ 2255, 2244(b)(3).
IV. RECOMMENDATION
Accordingly, it is RECOMMENDED that the Petition in this action be DISMISSED without prejudice and without requiring Respondent to file a return.
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 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).