Opinion
C. A. 5:20-2659-BHH-KDW
04-13-2021
Shafeeq Ali Goldwire, Petitioner, v. Warden F.C.I. Bennettsville, Respondent.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
Shafeeq Ali Goldwire (“Petitioner”), proceeding pro se, is a federal prisoner incarcerated at Federal Correctional Institution Bennettsville. 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. ECF No. 19. 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. 21. After being granted an extension, ECF No. 24, Petitioner filed a Response in Opposition to the Summary Judgment Motion on January 25, 2021. ECF No. 28.
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
A jury found Petitioner guilty of armed bank robbery, 18 U.S.C § 2113(a) and (d) and 2; possession/use of a firearm during a crime of violence, 18 U.S.C § 924(c) and 2; and felon in possession of a firearm, 18 U.S.C. § 922(g)(1) and 924(a)(2). See United States v. Goldwire, C/A No. 9:00-cr-08161-RLR-1 (S.D. Fl. July 27, 2001), ECF Nos. 119, 120. The court sentenced Petitioner to 346 months' imprisonment. Id., ECF No. 143. Petitioner appealed his conviction and sentence, and the Eleventh Circuit Court of Appeals (“Eleventh Circuit”) affirmed the judgment on July 31, 2002. Id., ECF Nos. 144, 182. Petitioner filed a motion to vacate judgment under 28 U.S.C. § 2255 on April 8, 2003, which the district court denied on August 22, 2003. Id., ECF Nos. 223, 240. Petitioner filed a second § 2255 motion on June 24, 2016, which the district court denied on October 4, 2016. Id., ECF Nos. 294, 296.
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 filed the instant habeas petition seeking to vacate his convictions and sentence. ECF No. 1.
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/use of a firearm during a crime of violence, 18 U.S.C § 924(c), and possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1), should be vacated. ECF No. 1. Petitioner cites to Rehaif v. United States, 139 S.Ct. 2191 (2019) and United States v. Gary, 954 F.3d 194 (4th Cir. 2020) and argues the district court did not instruct the jury about the elements of the offense resulting in a structural error in Petitioner's trial and sentencing hearing. ECF No. 1-1 at 6. In Rehaif, the Supreme Court held that 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. In Gary, the Fourth Circuit explained, concerning a conviction under 18 U.S.C. § 922(g)(1), that it was plain error when the court failed to instruct defendant of the knowledge-of-status element during the guilty plea colloquy. Gary, 954 F.3d at 200-202. Petitioner alleges his 922(g) and 924(c) convictions and sentences are illegal and in violation of due process because the government did not prove the knowledge-of-status element. ECF No. 1-1 at 8.
“[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. 19-1 at 14-18. Respondent also claims Petitioner is not entitled to habeas relief because any Rehaif error did not have a substantial and injurious effect or influence on Petitioner's convictions. Id. at 18-21.
Respondent acknowledges that 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. 19-1 at 10-14.
In his response, Petitioner agrees with Respondent's assessment that he has met the Fourth Circuit savings clause test. ECF No. 28 at 2. Petitioner contends he has not defaulted his Rehaif claim arguing any default is excused by the unconstitutional indictment and jury instructions in his case. Id. at 3-4. Petitioner claims the Rehaif error had a substantial and injurious effect on his indictment and conviction and his substantial rights were violated because the jury was not given an opportunity to consider whether Petitioner knew he belonged to the relevant category of persons barred from possession a firearm. Id. at 5, 6-8. Petitioner cites to Rehaif and United States v. Medley, 972 F.3d 399 (4th Cir. 2020) in support of his claims. Id. at 6-7.
United States v. Medley, 972 F.3d 399, 406-19 (4th Cir. 2020) (finding plain error in omitting the knowledge-of-status element from the indictment and from the jury instruction in a jury trial).
As an initial matter, the undersigned finds the court lacks jurisdiction to consider Petitioner's challenge to his conviction and sentences under the holdings in United States v. Gary, 954 F.3d 194, and United States v. Medley, 972 F.3d 399. The substantive law change referenced in In re Jones and Wheeler that causes Petitioner's conviction and sentence to be unlawful must arise from the United States Supreme Court or the Eleventh Circuit, which is the circuit in which Petitioner was convicted. See Van Hoorelbeke v. United States, No. CA 0-08-3869-CMC-PJG, 2010 WL 146289, at *4 (D.S.C. Jan. 8, 2010) (citing Chaney v. O'Brien, 2007 WL 1189641 (W.D. Va. Apr. 23, 2007) (holding that in applying the second prong of the Jones test, “the substantive law relevant to a § 2241 petition is that of the circuit in which the petitioner was convicted”)); Eames v. Jones, 793 F.Supp.2d 747, 750 (E.D. N.C. 2011) (finding the substantive law of the circuit of conviction should apply to § 2241 proceedings held in a different circuit). Because Gary and Medley are Fourth Circuit decisions, these cases cannot be used to challenge Petitioner's conviction and sentence.
Addressing Petitioner's challenge to his indictment, conviction, and sentence under the holding in Rehaif, the undersigned has reviewed caselaw from the Eleventh Circuit, Petitioner's circuit of conviction, and has not found any case that has found the possession of a firearm by a felon under 18 U.S.C. § 922(g) to no longer be criminal. See In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019) (finding Rehaif “did not announce a ‘new rule of constitutional law,' but, instead, clarified that, in prosecuting an individual under 18 U.S.C. § 922(g). . . the government must prove that the defendant knew he violated each of the material elements of § 922(g).”); In re Wright, 942 F.3d 1063, 1064-65 (11th Cir. 2019) (stating Rehaif “clarified the requirements for prosecuting an individual under 18 U.S.C. §§ 922(g) and 924(a)(2)”); United States v. McLennan, 958 F.3d 1110, 1118 (11th Cir. 2020) (holding that the failure to charge an element of the offense pre-Rehaif is a non-jurisdictional defect that does not affect the rights of the accused). The undersigned therefore finds Petitioner does not meet the second prong of the Wheeler or Jones test because the conduct for which Petitioner was convicted continues to be deemed criminal. Further, as to Petitioner's contest of his § 924(c) conviction and sentence under Rehaif, Rehaif did not address the requirements for prosecuting a defendant charged with possession/use of a firearm during a crime of violence. Thus, Petitioner's claim that he is entitled to relief from his § 924(c) conviction and sentence in light of Rehaif is without merit. Accordingly, the undersigned recommends Petitioner's habeas petition be 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).
Courts in this district have held that Rehaif claims pursuant to § 2241 do not meet the second prong of the Jones or Wheeler test because Rehaif clarified the elements the government has to prove for a conviction under 922(g), but did not create a substantive change of law. 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 cases); Midkiff v. Warden, C/A No. 8:19-2656-TMC, 2020 WL 3651591, at * 4-5 (D.S.C. July 6, 2020).
To the extent the court determines Petitioner meets the requirements of the Jones or Wheeler savings clause test, the undersigned finds Petitioner has failed to establish he is entitled to habeas relief under Eleventh Circuit substantive law. The record before the court shows Petitioner entered a stipulation at his trial where he admitted he had been convicted of a crime punishable by imprisonment for a term exceeding one year prior to his arrest for possessing a firearm. ECF No. 35-2 at 7-8. Petitioner's Pre-Sentence Report also shows Petitioner was previously sentenced to 12 months in prison for possession of cocaine, possession of a firearm by a convicted felon, and discharging a firearm in public. ECF No. 32 at 14. The undersigned finds Petitioner has failed to establish that at the time he possessed the firearm he was unaware he had been convicted of a crime punishable by imprisonment for a term exceeding one year. Accordingly, the undersigned finds Petitioner has failed to show that a Rehaif error in his indictment or at his trial had a substantial or injurious effect on the outcome of the proceedings against him. See United States v. Reed, 941 F.3d 1018 (11th Cir. 2019) (noting parties' stipulation to defendant's prior felony conviction, defendant's admission that he was not permitted to have a gun, and defendant's eight-year sentence for possessing a firearm, and holding that the omission of the knowledge-of-status element from an indictment and jury instructions for a violation of 922(g) did not amount to an error that affected the defendant's substantial rights or the fairness, integrity, or public reputation of his trial); United States v. Raymore, 965 F.3d 475, 485 (6th Cir. 2020) (“A jury could infer from Raymore's stipulation to his prior felony conviction the requisite knowledge of his status for a § 922(g)”); United States v. Hollingshed, 940 F.3d 410, 416 (8th Cir. 2019), cert. denied, 140 S.Ct. 2545 (Mar. 23, 2020) (defendant could not show Rehaif error in light of having served a four-year prison sentence). The undersigned recommends the court dismiss Petitioner's habeas petition.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the court grant Respondent's Motion for Summary Judgment, ECF No. 19, 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 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. 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).