Opinion
C/A No. 0:19-816-TMC-PJG
05-13-2019
Terry Sullivan Dawkins, Petitioner, v. Warden, SPC Edgefield, Respondent.
REPORT AND RECOMMENDATION
The petitioner, Terry Sullivan Dawkins, a self-represented prisoner confined at the Federal Prison Camp in Edgefield, South Carolina, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner files this matter pursuant to 28 U.S.C. § 1915 and § 1915A. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.). Having reviewed the Petition in accordance with applicable law, the court concludes that it should be summarily dismissed with prejudice for failure to state a claim upon which relief can be granted.
I. Factual and Procedural Background
Petitioner is currently serving a federal sentence for felon in possession of a firearm and ammunition. (Pet., ECF No. 1 at 1.) Petitioner claims he is eligible to participate in a residential drug abuse program, but he cannot take advantage of that program's sentence reduction provision. (Id. at 2.) Petitioner indicates that the Federal Bureau of Prisons ("BOP") has determined that possession of a firearm is a "crime of violence" under BOP regulations, 28 C.F.R. § 550.55, and policies, PS 5162.05, which makes him ineligible for a reduction of sentence under the residential drug abuse program. (Id.) Petitioner claims the policy barring prisoners with convictions for crimes of violence is unconstitutionally vague, arbitrary, and unlawful, citing Johnson v. United States, 135 S. Ct. 2551 (2015) (holding the residual clause defining "crime of violence" in the Armed Career Criminal Act ("ACCA") is unconstitutionally vague under the Due Process Clause). (Id. at 3.) Specifically, Petitioner argues that language in PS 5162.05 is identical to the language deemed unconstitutional in Johnson. (Id.) Thus, Petitioner asks the court to issue a writ of habeas corpus correcting BOP's execution of Petitioner's sentence.
See United States v. Dawkins, Case No. 6:16-cr-BHH-1 (D.S.C.)
II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in this case pursuant to the Rules Governing § 2254 Cases, 28 U.S.C. § 2254; the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214; 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) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
The Petition has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit, and is also governed by 28 U.S.C. § 1915A, which requires the court to review a complaint filed by a prisoner that seeks redress from a governmental entity or officer or employee of a governmental entity. See McLean v. United States, 566 F.3d 391 (4th Cir. 2009). Section 1915A requires, and § 1915 allows, a district court to dismiss the case upon a finding that the action is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b).
This court is required to liberally construe pro se pleadings, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, the requirement of liberal construction does not mean that the court can 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 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for "all civil actions").
B. Analysis
The court finds the Petition should be summarily dismissed for failure to state a claim upon which relief can be granted. Petitioner argues that BOP regulation 28 C.F.R. § 550.55 and policy PS 5162.05 are unconstitutionally vague, arbitrary, and capricious based on the United States Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015). In Johnson, the Court invalidated a federal criminal statute on the basis that it was so vague that it failed to give ordinary people fair notice of the conduct it punished, or so standardless that it invited arbitrary enforcement. Id. at 2556-57. Thus, the court determined, the criminal statute failed to comport with the Fifth Amendment's guarantee that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law." U.S. Const. amend V. Id. However, such "void-for-vagueness" challenges only apply to penal statutes. See generally Gonzales v. Carhart, 550 U.S. 124, 149 (2007) ("As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.") (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)).
Other courts that have considered arguments such as Petitioner's here have rejected the claims on the basis that BOP regulations and policies are not subject to void-for-vagueness challenges. See Kuban v. Snyder-Norris, Civil No. 16-52-HRW, 2017 WL 2609037, at * 3 (E.D. Ky. June 15, 2017) (summarily dismissing claim on initial review that 28 C.F.R. § 550.55(b)(5)(iii) was void under Johnson because the regulation does not proscribe conduct, and thus, it is not susceptible to a vagueness challenge); Strausbaugh v. Shartle, CV-15-398-TUC-JAS (JR), 2017 WL 3017135, at *4 (D. Ariz. Apr. 11, 2017) (finding, inter alia, Johnson did not apply to the petitioner's challenge to PS 5162.05 because the program statement did not prohibit conduct), Report and Recommendation adopted, 2017 WL 3007797 (D. Ariz. Jul 14, 2017). Accordingly, Petitioner fails to state a claim upon which relief can be granted. Nor does it appear that any amendment to the Petition could cure this deficiency, since such a challenge fails as a matter of law. See McLean v. United States, 566 F.3d 391, 400-01 (4th Cir. 2009) (providing that dismissal of a pro se litigant's claim with prejudice is appropriate where the claim is substantively meritless and cannot be cured by amendment of the complaint).
III. Conclusion
Based on the foregoing, the court recommends that the Petition be dismissed with prejudice and without requiring the respondent to file a return. May 13, 2019
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' 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
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).