Opinion
C/A No.: 1:20-1238-HMH-SVH
04-27-2020
Darwin Lewis Turner, Petitioner, v. Warden, FCI Edgefield, Respondent.
REPORT AND RECOMMENDATION
Darwin Lewis Turner ("Petitioner"), proceeding pro se, filed this action seeking habeas corpus relief pursuant to 28 U.S.C. § 2241. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the district judge. For the following reasons, the undersigned recommends the district judge dismiss the petition without prejudice and without requiring Respondent to file a return. I. Factual and Procedural Background
Petitioner is a federal inmate incarcerated at the Federal Correctional Institution ("FCI") in Edgefield, South Carolina. [ECF No. 1 at 6]. On May 16, 2006, Petitioner pleaded guilty in the Western District of North Carolina to one count of conspiracy to possess with intent to distribute at least 50 grams of crack cocaine and at least 5 kilograms of cocaine powder in violation of 21 U.S.C. § 846 ("conspiracy offense"). See Turner v. United States, C/A No. 5:06- 1-V, 2008 WL 2329318, at *1 (W.D.N.C. June 5, 2008). In Petitioner's presentence report, the probation officer concluded he qualified as a career offender under § 4B1.1 of the United States Sentencing Guidelines Manual ("USSG" or "Sentencing Guidelines") based on a prior North Carolina conviction for aggravated assault and three Texas convictions for delivery of cocaine. Turner v. United States, C/A No. 506-00001-RLV-DCK-2, 2015 WL 13757692, at *1 (W.D.N.C. Aug. 19, 2015). On April 17, 2007, Petitioner was sentenced to 360 months' imprisonment. Id.
A defendant is a career offender if he is at least 18 years old at the time he committed the instant offense of conviction, here the conspiracy offense, and the instant offense and two prior felony convictions are crimes of violence or controlled substance offenses. USSG § 4B1.1(a).
Petitioner filed the instant § 2241 petition challenging the validity of his sentence and seeking a writ of habeas corpus. [ECF No. 1]. Petitioner argues he was improperly sentenced as a career offender because his conspiracy offense no longer qualifies as a controlled substance offense under United States v. Whitley, 737 F. App'x 147 (4th Cir. 2018). Petitioner requests the court vacate his sentence based on his career offender status. [ECF No. 1 at 6]. II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, this petition has been carefully reviewed pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. 104-132, 110 Stat. 1214, and other habeas corpus statutes. 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 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. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean 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).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
B. Analysis
A petition for habeas corpus relief brought pursuant to 28 U.S.C. § 2255 is filed in the sentencing court and a petition brought pursuant to 28 U.S.C. § 2241 petition is filed in the district where the petitioner is incarcerated. See 28 U.S.C. § 2241(a); In re Jones, 226 F.3d 328, 332 (4th Cir. 2000). "[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)). Challenges to the execution of a sentence are properly raised in a § 2241 petition. Vial, 115 F.3d 1194 n.5.
Section 2255 contains a savings clause that "provides that an individual may seek relief from an illegal detention by way of a traditional 28 U.S.C. § 2241 habeas corpus petition, if he or she can demonstrate that a § 2255 motion is 'inadequate or ineffective to test the legality of his detention.'" United States v. Wheeler, 886 F.3d 415, 419 (4th Cir. 2018); see also 28 U.S.C. § 2255(e) ("An application for a writ of habeas corpus on 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."). The Fourth Circuit has joined the Second, Sixth, Eighth, Ninth, and Eleventh Circuits in finding the savings clause requirements are jurisdictional. Id. at 424 n.5, 425. If the savings clause requirements are not met, the court cannot consider the petition.
The Fourth Circuit has found § 2255 inadequate and ineffective to test the legality of a sentence when:
(1) at the time of the conviction, settled law of this circuit or the Supreme Court established the legality of the conviction;Wheeler, 886 F. 3d at 429; see also Jones, 226 F.3d at 333-34 (providing a three-part test to determine whether section 2255 is inadequate and ineffective to test the legality of a conviction).
(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.
"In evaluating substantive claims under the savings clause . . . we look to the substantive law of the circuit where a defendant was convicted." Hahn v. Moseley, 931 F.3d 295, 301 (4th Cir. 2019) (citing In re Davenport, 147 F.3d 605, 611-12 (7th Cir. 1998); Eames v. Jones, 793 F. Supp. 2d 747, 750 (E.D.N.C. 2011)). Here, the substantive law of the Fourth Circuit controls.
As stated above, Petitioner challenges his career offender status based on the Fourth Circuit's holding in Whitley, arguing his conspiracy offense no longer qualifies as a controlled substance offense. However, Petitioner is unable to meet either the second or the fourth prongs of the Wheeler test. Regarding the second prong, it is unclear if there has been a change in settled substantive law sufficient to satisfy Wheeler, and even if there has been, there is no indication it has been deemed to apply retroactively on collateral review. Petitioner cannot meet the fourth prong because his sentence does not present an error sufficiently grave to be deemed a fundamental defect.
First, Whitley was an unpublished, nonprecedential decision holding that a conspiracy under 21 U.S.C. § 846 is not a controlled substance offense for purposes of applying the career offender enhancement under the Sentencing Guidelines. See Whitley, 737 F. App'x at 148-49 (citing United States v. McCollum, 885 F.3d 300, 307-309 (4th Cir. 2018) (holding the generic definition of conspiracy requires an overt act and that the federal crime of conspiracy to commit murder in aid of racketeering is broader than generic conspiracy because it does not require an overt act)).
However, as recently noted by the Fourth Circuit, the court has previously "repeatedly concluded that § 846 conspiracies are controlled substance offenses," "neither McCollum nor Whitley distinguished" those prior cases, and thus these cases "leav[e] open the question of which precedent controls." United States v. Chavez-Lopez, 767 F. App'x 431, 437 (4th Cir. 2019); see also United States v. Williams, 772 F. App'x 37, 39 (4th Cir. 2019) ("Because this court has repeatedly concluded that a § 846 drug conspiracy is a controlled substance offense, and neither McCollum nor Whitley distinguished this court's precedent on the issue, we conclude that it was not plain error for Williams to have been considered eligible for career offender status."); see also McMellon v. United States, 387 F.3d 329, 333 (4th Cir. 2004) ("When published panel opinions are in direct conflict on a given issue, the earliest opinion controls, unless the prior opinion has been overruled by an intervening opinion from this court sitting en banc or the Supreme Court").
Second, even if McCollum and Whitley did announce a change to settled substantive law sufficient to satisfy Wheeler, there is no indication this change has been deemed to apply retroactively on collateral review. See, e.g., Parker v. Rickard, C/A No. 1:18-01069, 2019 WL 4145622, at *10 (S.D.W. Va. Feb. 6, 2019), report and recommendation adopted, C/A No. 1:18-01069, 2019 WL 4145545 (S.D.W. Va. Aug. 29, 2019) ("Petitioner, however, cites no authority holding that McCollum and its progeny apply retroactively.").
Finally, even if Petitioner were able to demonstrate that he could meet the second prong of Wheeler, he would not be able to meet the fourth prong. The fourth prong requires a showing that due to a retroactive change in the law, Petitioner's sentence "now presents an error sufficiently grave to be deemed a fundamental defect." Wheeler, 886 F.3d at 429.
The Fourth Circuit has concluded that a misclassification as a career offender can be a fundamental defect if the sentencing occurred pre-United v. Booker, 543 U.S. 220, 245 (2005), when the Sentencing Guidelines were mandatory. Lester v. Flournoy, 909 F.3d 708, 715 (4th Cir. 2018). The Fourth Circuit, however, explicitly noted that if Lester had been sentenced under the post-Booker advisory Sentencing Guidelines, his petition would be barred as failing to meet the fourth prong of Wheeler. Id. ("Foote undoubtedly would bar Lester's petition [under § 2241] had he been sentenced under the advisory Guidelines."); see also Kornegay v. Warden, FCI Butner, No. 13-7565, 2019 WL 258720, at *1 (4th Cir. Jan. 17, 2019) (affirming a district court's order denying § 2241 relief because petitioner "was sentenced under the advisory Guidelines and Foote bars his petition"); Peacock v. Bragg, C/A No. 2:18-1987-HMH-MGB, 2019 WL 1499270, at *4 (D.S.C. Apr. 5, 2019) ("In this case, Peacock was sentenced in 2008, after Booker rendered the USSG advisory only. Thus, Peacock's USSG sentencing range was considered advisory only, and the sentencing court had discretion in determining Peacock's sentence based on the factors in 18 U.S.C. § 3553(a). Moreover, the sentencing court imposed a below-guidelines sentence of 205-months' imprisonment. Accordingly, Peacock's sentence, imposed under the advisory USSG, does not present a fundamental defect under Wheeler."); United States v. Robinson, C/A No. 0:08-401-CMC, 2020 WL 1536224, at *2 (D.S.C. Mar. 31, 2020) ("as Defendant was sentenced under the advisory, not mandatory, Sentencing Guidelines, his sentence does not present an error so grave as to be a fundamental defect"); Goodwin v. Mackelburg, C/A No. 0:19-1816-HMH-PJG, 2019 WL 4784411, at *4 (D.S.C. Oct. 1, 2019), aff'd, No. 19-7500, 2020 WL 1910479 (4th Cir. Apr. 20, 2020) ("Goodwin was sentenced under the advisory U.S.S.G. Consequently, Goodwin cannot satisfy the fourth prong of the savings clause test under Wheeler because there is no fundamental defect in his sentencing."). Because Petitioner was sentenced in 2007 and post-Booker, he cannot meet the fourth prong of Wheeler.
In United States v. Foote, 784 F.3d 931, 935-36 (4th Cir. 2015), the Fourth Circuit held that a prisoner could not challenge a trial court's misapplication of the advisory Sentencing Guidelines under § 2255.
Petitioner's citation to Molina-Martinez v. United States is inapposite where, in that case, the Supreme Court held that an incorrectly-calculated Sentencing Guidelines range presumptively satisfies the prejudice prong of plain-error review because of its "centrality" to a district court's sentence. 136 S. Ct. 1338, 1346 (2016). Here, Petitioner does not challenge the calculation of his Sentencing Guidelines range, but whether or not his conspiracy offense qualifies as a controlled substance offense.
Because Petitioner has not met the savings clause requirements set forth in Wheeler, the court does not have jurisdiction pursuant to 28 U.S.C. § 2241 to entertain his challenge to the validity of his sentence. Therefore, the undersigned recommends the court dismiss the petition without prejudice. III. Conclusion and Recommendation
"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." Platts v. O'Brien, 691 F. App'x 774 (4th Cir. 2017) (citing S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013).
For the foregoing reasons, the undersigned recommends the district judge dismiss the petition without prejudice and without requiring Respondent to file a return.
IT IS SO RECOMMENDED. April 27, 2020
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
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. "[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
901 Richland Street
Columbia, South Carolina 29201
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).