Opinion
C. A. 5:19-3224-RBH-KDW
09-06-2022
Hubert Lee Washington, Jr., Petitioner, v. Bryan Dobbs, Respondent.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, MAGISTRATE JUDGE
Hubert Lee Washington, Jr. (“Petitioner”), proceeding pro se, is a federal prisoner incarcerated at Federal Correctional Institution Williamsburg. He filed this petition seeking 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 for Summary Judgment and Return. ECF Nos. 46, 47. 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. 48. Petitioner filed a Response in Opposition to the Summary Judgment Motion on February 7, 2022. ECF No. 50.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that the court grant Respondent's Motion for Summary Judgment. I. Factual and Procedural Background
On October 15, 2012, Petitioner entered a guilty plea to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(e)). See United States v. Washington, C/A No.: 4:12-cr-00444-RBH-1 (D.S.C. April 14, 2013) (“Washington”), ECF No. 38. On April 12, 2013,
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).
Petitioner was sentenced to 180 months imprisonment. Id., ECF No. 45. Petitioner did not appeal his conviction and sentence. ECF No. 1. On April 24, 2014, Petitioner filed a motion to vacate judgment under 28 U.S.C. § 2255, that the district court dismissed on April 23, 2015. Washington, ECF Nos. 49, 59. On January 29, 2015, Petitioner appealed the denial of his 2255 motion and on May 23, 2016, the Fourth Circuit Court of Appeals affirmed the decision of the district court. Washington, ECF Nos. 68, 73.
Petitioner filed the instant petition seeking an order vacating his §§ 922(g)(1) and 924(e) conviction and sentence based on holding in Rehaif v. United States, 139 S.Ct. 2191 (2019). ECF No. 1 at 6-10. Petitioner argues the government failed to prove he knew he possessed a firearm and that he knew he was a felon, and therefore he is no longer guilty of the firearm offense. Id.
II. Discussion
A. Standard for Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 323 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
B. Analysis
Petitioner contends his conviction and sentence for possession of a firearm by a convicted felon pursuant to 18 U.S.C. § 922(g)(1) should be vacated. ECF No. 1 at 6-11. Petitioner cites to Rehaif, 139 S.Ct. 2191, and argues the prosecuting court failed to put him on notice that he could not possess a firearm due to his felony conviction, and the prosecuting attorney failed to establish he had been put on notice. Id. at 10. In Rehaif, the Supreme Court held the Government must prove, in a prosecution under 18 U.S.C. § 922(g)(1), both that a defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm. Rehaif, 139 S.Ct. at 2200. Petitioner asks that his conviction and sentence be set aside. ECF No. 1 at 11.
“[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, 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 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 also established a savings clause test under § 2255 for a petitioner who contests his sentence. U.S. v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018). The court held that § 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.
In support of his summary judgment motion, Respondent concedes Petitioner meets the Jones test, but argues Petitioner procedurally defaulted his Rehaif claim because he failed to raise the claim in an earlier proceeding. ECF No. 47 at 4-13. Respondent also claims Petitioner is not entitled to habeas relief under a Rehaif error as Petitioner cannot demonstrate he is actually innocent of his firearm conviction. Id. at 13-14. Respondent also argues Petitioner failed to establish any Rehaif error had a substantial and injurious effect or influence on his conviction. Id. at 14-16.
Respondent acknowledges this court has held that § 2241 petitions raising Rehaif claims do not meet the second prong of the Jones test, but Respondent disagrees with these decisions. ECF No. 47 at 5-6, n. 2.
In his response, Petitioner argues Rehaif requires the Government to prove both substantial elements of the crime charged, and a failure to prove one or both elements require the charge to be dismissed. ECF No. 50 at 1-2. Petitioner contends he did not know he was a felon and argues the indictments and state judgment show he was “never charged, indicted, nor was he sentenced as a felon.” Id. at 2. Petitioner claims Respondent's procedural bar defense is frivolous as a Rehaif claim was unavailable prior to the 2019 decision and raising such a claim before 2019 would have barred any subsequent claim. Id. at 2-3. Petitioner argues he has overcome any procedural default. Id. at 3.
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 sentence. The undersigned finds Petitioner does not meet the second prong of the Jones or Wheeler tests. Petitioner cannot show the conduct for which he was convicted-being a felon in possession of a firearm- has been deemed to be non-criminal. Courts in this district have examined Rehaif claims in cases where a defendant has pleaded guilty and have found Rehaif did not create a substantive change in law but simply clarified the elements the Government would have to prove if defendant exercised his right to a trial. See Rhodes v. Dobbs, C/A No. 1:20-cv-1725-JFA-SVH, 2021 WL 805503, at *3 (D.S.C. Mar. 3, 2021) (collecting district court cases in the Fourth Circuit finding Rehaif did not change substantive law because the conduct for which the petitioner was convicted is still illegal), appeal dismissed, C/A No. 21-6373 (4th Cir. Sept. 17, 2021). See also Byron Bernard Sadler, Petitioner, v. M. Travis Bragg, Respondent, C/A No. 0:20-0665-JFA-PJG, 2020 WL 6110989, at *4 (D.S.C. Oct. 16, 2020) (collecting district court cases in the Fourth Circuit finding the same). Second, in terms of Wheeler, the Supreme Court did not indicate the holding in Rehaif was retroactively applicable to cases on collateral review. See Erby v. Breckon, Civil Action No. 7:18-cv-00588, 2020 WL 1443154, at *7 (D. Va. March 24, 2020); Williams v. United States, No. 3:17-cr-00241, 2019 WL 6499577, at *2 (W.D. N.C. Dec. 3, 2019) (“[T]he Supreme Court did not make Rehaif retroactive to cases on collateral review.”); Waters v. United States, No. 4:15-cr-158, 2019 WL 3495998, at *5 (D.S.C. Aug. 1, 2019) (noting “there is no indication that the Supreme Court has made the holding in Rehaif retroactively applicable to invalidate an otherwise final conviction under § 922(g).”). The undersigned finds the court lacks jurisdiction to consider Petitioner's § 2241 Petition and recommends the habeas Petition be dismissed. See Wheeler, 886 F.3d at 426 (holding that the failure to meet the requirements of the savings clause is a jurisdictional defect that may not be waived).
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the court grant Respondent's Motion for Summary Judgment, ECF No. 46, deny the petition for writ of habeas corpus, and dismiss the petition.
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. [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 committees 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. D 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).