Opinion
C. A. 5:20-58-TMC-KDW
03-09-2022
Dedrick G. Smith, Petitioner, v. Bryan K. Dobbs, Respondent.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge.
Dedrick G. Smith (“Petitioner”), proceeding pro se, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's Motion to Dismiss. ECF No. 40. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. ECF No. 41. Following the grant of an extension, Petitioner filed a Response in Opposition to Respondent's Motion to Dismiss on June 3, 2021. ECF Nos. 45, 47.
I. Factual and Procedural Background
On March 10, 1993, a jury found Petitioner guilty of aiding and abetting felony murderof a federal agent while in the line of duty, in violation of 18 U.S.C. §§ 1111 and 1114. See United States v. Smith (“Smith”), No. 2:13-cv-08008-LSC-TMP, ECF No. 6 (N.D. Ala. Nov. 10, 2014). The court sentenced Petitioner to life without parole. Id. Petitioner filed an appeal challenging his sentence and conviction, which the Eleventh Circuit Court of Appeals (“Eleventh Circuit”) denied on September 22, 1994. United States v. Clemons, 32 F.3d 1504 (11th Cir. 1994). Petitioner sought review in the United States Supreme Court and the Court denied his petition for writ of certiorari on April 24, 1995. Smith, ECF No. 6.
See Smith v. Mosley, No. 3:15cv109-DPJ-FKB, 2016 WL 5937956 (S.D.Miss. Oct. 12, 2016).
The court takes judicial notice of Petitioner's prior cases. See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“The most frequent use of judicial notice of ascertainable facts is in noticing the content of court records.”) (citation omitted).
On April 24, 1997, Petitioner filed a motion to vacate judgment under 28 U.S.C. § 2255, which the district court denied on January 25, 2001. Id. Petitioner appealed the denial of his § 2255 motion, and on July 13, 2001, the Eleventh Circuit denied Petitioner's appeal. Id. Petitioner filed a second § 2255 motion to vacate judgment, which the district court dismissed as successive on May 16, 2005. Id. On March 21, 2013, Petitioner filed a third § 2255 motion which the district court dismissed for lack of jurisdiction on November 10, 2014. Id., ECF No. 9.
Petitioner filed the instant habeas petition seeking to vacate his conviction alleging he is actually innocent of his conviction for aiding and abetting under 18 U.S.C § 2. ECF No. 1 at 6.
II. Discussion
A. Standard on Motion to Dismiss
Dismissal is appropriate under Fed.R.Civ.P. 12(b)(1) where the court lacks subject-matter jurisdiction. A motion to dismiss under Rule 12(b)(1) examines whether a complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff'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). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Indeed, the presence of a few conclusory legal terms does not insulate a complaint from dismissal when the facts alleged in the complaint cannot support the legal conclusion. Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Merriweather v. Reynolds, 586 F.Supp.2d 548, 554 (D.S.C. 2008). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
Petitioner cites to Rosemond v. United States, 572 U.S. 65 (2014) and Steiner v. United States, 940 F.3d 1282 (11th Cir. 2019) and argues that the trial court's aiding and abetting instruction was erroneous because it lacked the level of intent required to satisfy what defines “advanced notice.” ECF Nos. 1; 1-2 at 6; 1-3 at 3-6. Petitioner alleges that the government failed to present any evidence to prove beyond a reasonable doubt that he had “advance notice” that his co-defendant would kill the victim, and that Petitioner aided and abetted his co-defendant during the crime. Id.
The undersigned notes Petitioner filed an earlier § 2241 petition in the Southern District of Mississippi in which he raised a Rosemond argument and the court dismissed that petition finding Petitioner did not meet the requirements of § 2255(e) explaining that (1) an argument concerning the intent necessary to support an aiding- and-abetting conviction regarding firearms would not have been foreclosed prior to Rosemond and (2) the holding in Rosemond did not apply retroactively. See Smith, 2016 WL 5937956, at *1-3.
“[I]t 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)). In contrast, a motion filed under § 2241 is typically used to challenge the manner in which a sentence is executed. See In re Vial, 115 F.3d at 1194 n.5. A petitioner cannot challenge his federal conviction and sentence under § 2241 unless he can satisfy the § 2255 savings clause that 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 Rice, 617 F.3d at 807 (finding that if a federal prisoner brings a § 2241 petition that does not fall within the scope of this savings clause, then the district court must dismiss the “unauthorized habeas motion . . . for lack of jurisdiction”).
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 detention:
(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 (4th Cir. 2000). The Fourth Circuit has repeatedly held that the savings clause only preserves claims in which the petitioner alleges actual innocence of a conviction. See United States v. Poole, 531 F.3d 263, 267 n.7 (4th Cir. 2008). As the Supreme Court has told us, “‘actual innocence' means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998).
Respondent moves to dismiss the instant petition arguing Petitioner cannot satisfy the second element of In Re Jones. ECF No. 40-1 at 5-6. Respondent contends Petitioner's reliance on Rosemond is misplaced as Rosemond did not change the substantive law of aiding and abetting in violation of § 1111 or § 1114. Id. at 6. Respondent alleges Rosemond found the intent needed to aid and abet a § 924(c) violation is shown by a defendant who knows in advance his confederate will use a gun in the predicate crime. Id. Respondent claims the Supreme Court did not hold, or suggest, that the advance-knowledge holding applies to aiding and abetting under § 1111 or § 1114. Id. Respondent argues the holding in Steiner also does not satisfy In Re Jones's second prong because although Steiner made Rosemond retroactive to cases on collateral review, Steiner did not expand the holding in Rosemond. Id.
In his Response, Petitioner argues the holding in Rosemond meets the second prong of In Re Jones. ECF No. 47 at 2. Petitioner contends the substantive nature of Rosemond declares Petitioner stands “convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him.” Id. Petitioner argues the holding in Rosemond changes the substantive law under 18 U.S.C. § 2, and declares Petitioner is “actually innocent of aiding and abetting 1111 & 1114.” Id. at 3. Petitioner claims a jury found Petitioner guilty under the incorrect standard of law, and if the jury had been appraised of the correct standard of law, Petitioner would not have been found guilty. Id. at 3-4. Petitioner contends a Supreme Court's holding can extend to any case with an identical or similar statute, and therefore the holding in Rosemond is not limited to § 924(c) convictions. Id. at 5.
The undersigned finds the court lacks jurisdiction to consider Petitioner's § 2241 petition as he cannot show that § 2255 is inadequate to test the legality of his conviction. Addressing the second prong of In Re Jones, the undersigned finds Petitioner's reliance on Rosemond, 572 U.S. 65, and Steiner, 940 F.3d 1282, is erroneous. In Rosemond, the Supreme Court held a defendant must know in advance that a firearm will be used or carried to aid and abet a firearm offense in violation of § 924(c). 134 S.Ct. at 1249-1251. In Steiner, the Eleventh Circuit found the holding in Rosemond applied retroactively to cases on collateral review. 940 F.3d at 1294. In considering the holding in Rosemond, the Eleventh Circuit, Petitioner's circuit of conviction, has determined that “Rosemond did not purport to change the law of aiding and abetting generally, only to clarify its application to a § 924(c) firearm offense.” United States v. Aplesa, 690 Fed.Appx. 630, 634 (11th Cir. 2017). See also, United States v. Persaud, 605 Fed.Appx. 791, 801 (11th Cir. 2015) (explaining Rosemond “did not hold that its ruling applied beyond aiding or abetting § 924(c) offenses.”). Moreover, the Court in Rosemond did not hold that its ruling applied beyond aiding or abetting § 924(c) offenses. See 134 S.Ct. at 1251-52. Because Petitioner was convicted of aiding and abetting felony murder of a federal agent while in the line of duty, in violation of 18 U.S.C. §§ 1111 and 1114, the holding in Rosemond does not apply to the criminal conduct for which Petitioner was convicted. Petitioner is unable to meet the § 2255 savings clause, therefore, this court lacks jurisdiction to consider the petition in this case. Petitioner's § 2241 petition should be summarily dismissed.
“In evaluating substantive claims under the savings clause, ” a district court must “look to the substantive law of the circuit where a defendant was convicted.” Hahn v. Moseley, 931 F.3d 295, 301 (4th Cir. 2019).
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends that the court grant Respondent's Motion to Dismiss, ECF No. 40, deny the petition for writ of habeas corpus, and dismiss the petition without prejudice.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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. D[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must Donly satisfy itself that there is no clear error on the face of the record in order to accept the recommendation DD Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d310 (4fh 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. D 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 maybe 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. D 636(b)(1); Tliomas v. Am, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d91 (4th Cir. 1984).