Opinion
C/A No. 5:18-cv-01740-HMH-KDW
02-21-2019
Marcellus James Fennell, Jr., Petitioner, v. Hector Joyner, Warden, Respondent.
REPORT AND RECOMMENDATION
Marcellus James Fennell, Jr., ("Petitioner") proceeding pro se, filed this Petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging that he was erroneously sentenced as a career offender. Petitioner is a federal prisoner currently incarcerated at FCI-Estill in Estill, South Carolina. 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.) for a Report and Recommendation on Respondent's Motion to Dismiss. ECF No. 18. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), on September 25, 2018, the court advised Petitioner of the dismissal procedures and of the possible consequences if he failed to respond adequately to Respondent's motion. ECF No. 19. Petitioner filed a timely Response on October 31, 2018. ECF No. 21.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that the court grant Respondent's motion to dismiss.
I. Factual and Procedural Background
On December 16, 2008, Petitioner pled guilty to one count of conspiracy to possess with the intent to distribute more than 50 grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846, before the United States District Court for the Eastern District of North Carolina (the "Sentencing Court"). See United States v. Fennell, Case No. 7:08-cr-77-D (E.D.N.C.) ("Sentencing Docket"). Petitioner was sentenced to 300 months' imprisonment. Sentencing Docket No. 45 at 58. In reaching its sentencing decision, the Sentencing Court applied the United States Sentencing Guidelines' (the "Guidelines") career offender enhancement based on two predicate state drug offenses and granted the government's motion for a downward departure under § 5K1.1. See Sentencing Docket Nos. 36-37. The Sentencing Court calculated Petitioner's advisory guideline range to be 360 months to life. See Sentencing Docket No. 45.
The Sentencing Court entered judgment on May 6, 2009. Sentencing Docket No. 37. Petitioner appealed the Sentencing Court's decision and, on November 3, 2009, the United States Court of Appeals for the Fourth Circuit dismissed Petitioner's appeal. See United States v. Fennell, No. 09-4457 (4th Cir. Nov. 3, 2009). Petitioner did not seek a writ a certiorari.
Petitioner filed his first motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 on June 20, 2012, arguing, in part, that he no longer qualified as a career offender after the Fourth Circuit's decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). Sentencing Docket No. 54. The Sentencing Court dismissed Petitioner's § 2255 motion on May 6, 2013. The Sentencing Court found that any alleged error in calculating Petitioner's advisory guideline range was not prejudicial or a miscarriage of justice where he received a sentence less than the statutory maximum and that Petitioner's Simmons argument fell within his plea agreement's valid appeal waiver. Sentencing Docket No. 60 at 2-5.
Although the Fourth Circuit decided Simmons prior to Petitioner's first § 2255 motion, it was not made retroactive to cases on collateral review until several months after the Sentencing Court's decision on that motion. See Miller v. United States, 735 F.3d 141 (4th Cir. 2013) (holding Simmons applies retroactively on collateral review, decided August 21, 2013).
Petitioner filed his § 2241 petition in this court on June 25, 2018, again asserting the applicability of Simmons to his case.
II. Standard of Review
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 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, "[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) 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). Furthermore, in analyzing a Rule 12(b)(6) motion to dismiss, a court may consider "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs. Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). If on a motion pursuant to Rule 12(b)(6), matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment under Rule 56. See Fed. R. Civ. P. 12(d).
This court is required to construe pro se petitions liberally. Such pro se petitions are held to a less stringent standard than those drafted by attorneys, see Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978), and a federal district court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, however, the Petition submitted in this case is subject to summary dismissal. 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 currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
III. Discussion
Generally, a § 2241 habeas petition "'attacks the execution of a sentence rather than its validity,' whereas a § 2255 motion 'attacks the legality of detention.'" Brown v. Rivera, No. 9:08-CV-3177-PMD-BM, 2009 WL 960212, at *2 (D.S.C. April 7, 2009) (citation omitted). Here, Petitioner's allegations show that he is attacking the validity of his sentence. This type of claim should usually be brought under § 2255. Rice v. Rivera, 617 F.3d 802 (4th Cir. 2010). However, § 2255 contains a savings clause which permits a district court to consider a § 2241 petition challenging the validity of a petitioner's detention when a § 2255 petition is inadequate or ineffective to test the legality of his detention. Id. The savings clause 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).
In other words, as applied here, Petitioner's § 2241 Petition is barred unless he can demonstrate that the relief available to him under § 2255 is inadequate or ineffective. In the Fourth Circuit, a § 2255 motion is inadequate or ineffective to test the legality of a prisoner's sentence if:
(1) [A]t 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.United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018).
Here, Petitioner argues that Simmons substantively changed the law applicable to his sentence; under Simmons, one of his prior drug convictions does not qualify as a predicate "drug substance offense" under the Guidelines; and, thus, he should be resentenced without the career offender enhancement. Respondent counters that: (1) Petitioner waived his right to attack his sentence in his plea agreement and (2) Petitioner has failed to show that § 2255 is inadequate or ineffective because the alleged error is not a fundamental defect. ECF No. 18-1 at 1, 9-11.
In his written plea agreement, Petitioner agreed:
[t]o waive knowingly and expressly all rights, conferred by 18 U.S.C. § 3742, to appeal whatever sentence is imposed, including any issues that relate to the establishment of the advisory Guideline range, reserving only the right to appeal from a sentence in excess of the applicable advisory Guideline range that is established at sentencing, and further to waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to 28 U.S.C. § 2255, excepting an appeal or motion based upon grounds of ineffective assistance of counsel or prosecutorial misconduct not known to the Defendant at the time of the Defendant's guilty plea.Sentencing Docket No. 27 at 1-2. Thus, Petitioner expressly waived his right to bring this challenge to his sentence in any appeal, including the current post-conviction proceeding.
A court will generally uphold a plea waiver if the record establishes the waiver is valid and the issue being appealed is within the scope of the waiver. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). Petitioner does not contest the validity of his waiver, but asserts that, under Fourth Circuit precedent, this proceeding is outside of the scope of the waiver because it "affects constitutional rights and fundamental fairness." ECF No. 1-1 at 6 (citing United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992); United States v. Broughton-Jones, 71 F.3d 1143, 1147 (4th Cir. 1995); United States v. Blick, 408 F.3d 162, 172 (4th Cir. 2005)).
"[E]ven a knowing and voluntary waiver of the right to appeal cannot prohibit the defendant from challenging a few narrowly-construed errors." United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). Those permissible appeals include: (1) claims that the sentence was imposed in excess of the maximum penalty allowed by law, (2) claims that the sentence was based on a constitutionally impermissible factor such as race, and (3) claims that the defendant was deprived of effective assistance of counsel at a proceeding following the entry of the waiver. United States v. March, No. 3:08-cv-590-CMC, 2012 WL 570183, at *4 (D.S.C. Feb. 22, 2012) (citing United States v. Attar, 38 F.3d 727, 732 (4th Cir. 1994); United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992)).
Petitioner does not assert any of these errors. See ECF No. 1-1 at 6-7. However, Petitioner relies on a line of cases in the United States District Court for the Eastern District of North Carolina that he asserts found that a valid appeal waiver does not bar consideration of whether a defendant was improperly classified as a career offender in light of Simmons. ECF No. 1-1 at 7. He contends that these cases correctly hold that an alleged Simmons error falls outside of the scope of valid appeal waivers because the defendant "could not have reasonably contemplated" the error when executing the plea agreement. Id. Respondent disagrees and argues that the Fourth Circuit has determined that valid appeal waivers may apply to collateral challenges to a petitioner's sentence or conviction, and has specifically held that "claims regarding the application of Simmons fall within the scope of [a] valid appeal waiver." United States v. Copeland, 707 F.3d 522, 529-30 (4th Cir. 2013); see also United States v. Jones, 549 F. App'x 219, 220 (4th Cir. Jan. 9, 2014) (finding collateral attack on sentence based on Simmons fell within scope of valid appeal waiver in plea agreement); United States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005) (holding that a petitioner "may waive his right to attack his conviction and sentence collaterally, so long as the waiver is knowing and voluntary").
In Copeland, the Fourth Circuit considered whether the defendant's Simmons challenge to his career offender classification on direct appeal fell within the scope of his valid appeal waiver. Like Petitioner, Copeland waived the right to appeal his sentence or contest his sentence in any post-conviction proceeding, including any appeal or challenge based on 18 U.S.C. § 3742, unless the sentence was in excess of the applicable advisory guideline range established at sentencing. See Copeland, 707 F.3d at 525. Relying on principles established in United States v. Blick, 408 F.3d 162 (4th Cir. 2005), and United States v. Brown, 232 F.3d 399 (4th Cir. 2000), the Fourth Circuit found "Copeland was sentenced within the appropriate Guidelines range established at the time of sentencing, precisely in the manner he anticipated," and, therefore, could not "invalidate his appeal waiver now to claim the benefit of subsequently issued case law." Copeland, 707 F.3d at 529-30.
The undersigned agrees with Respondent. All of the Eastern District of North Carolina cases Petitioner cites rely on United States v. Yancey, 463 F. App'x 202 (4th Cir. Feb. 2, 2012), for the proposition that whether a defendant was properly classified as a career offender in light of Simmons is the type of error a defendant could not have reasonably contemplated at the time of the plea agreement and, therefore, is not barred by a valid appeal waiver. However, in Yancey, unlike here, the government agreed at sentencing that Yancey could appeal his career offender classification. See Yancey, 463 F. App'x at 203, n.1. Further, the Fourth Circuit has vacated one of those district court cases and, in doing so, has expressly concluded that a Simmons challenge to a petitioner's sentence "is not the type of issue that [a petitioner] could not have reasonably contemplated at the time of his plea agreement." United States v. Woodard, 523 F. App'x 262, 263 (4th Cir. June 6, 2013). The Fourth Circuit also indicated that Yancey was inapplicable in that case because the government had not conceded at sentencing that the defendant could appeal his classification as a career offender. Id.
Here, Petitioner's sentence was within the applicable Guidelines range established at his sentencing and there is no indication that the government agreed to allow Petitioner to appeal his career offender classification. Thus, Petitioner's Simmons challenge falls squarely within the parameters of his valid appeal waiver and must be dismissed.
Further, under Fourth Circuit precedent, the alleged sentencing error is not a fundamental defect and, thus, Petitioner cannot satisfy the fourth prong of the Wheeler test. In United States v. Foote, 784 F.3d 931 (4th Cir. 2015), the Fourth Circuit considered a Simmons sentencing error on appeal from the denial of a § 2255 motion. Id. at 932. Relying on Davis v. United States, 417 U.S. 333, 346 (1974) (instructing that only those errors presenting a fundamental defect which inherently results in a complete miscarriage of justice are cognizable on collateral review), and Hill v. United States, 368 U.S. 424, 428 (1962) (indicating this standard is only satisfied when a court is presented with exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is present), the Fourth Circuit held that sentencing a defendant pursuant to advisory Guidelines based on a career offender status that is later invalidated does not amount to a fundamental sentencing defect where neither the defendant's federal offense of conviction nor his state convictions qualifying him as a career offender had been vacated. Foote, 784 F.3d at 932, 936. Like Foote, Petitioner was sentenced under the advisory Guidelines, his federal offense has not been vacated, and he does not assert that his qualifying state conviction was vacated, only that it no longer qualifies as a predicate offense for career offender status.
Accordingly, not only is Petitioner's claim barred by his valid appeal waiver, but Petitioner has failed to show that § 2255 is inadequate or ineffective to test the legality of his sentence and that he may proceed under the savings clause.
IV. Recommendation
For the foregoing reasons, the undersigned recommends granting Respondent's motion to dismiss, ECF No. 18.
IT IS SO RECOMMENDED. February 21, 2019
Florence, South Carolina
/s/
Kaymani D. West
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
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. § 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).