Opinion
C. A. 4:21-17-BHH-TER
03-23-2021
Alonzo Houston, #14598-001, Petitioner, v. Warden Phelps, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
Petitioner is a federal prisoner. Petitioner was sentenced by the United States District Court for the Northern District of Alabama. He is seeking habeas relief under § 2241 and proceeding in this action pro se. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings pursuant to the procedural provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted 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, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, the petition is subject to summary dismissal.
Furthermore, this court is charged with screening Petitioner's lawsuit to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4 of Rules Governing Section 2254 Cases in the United States District Courts. Following the required initial review, it is recommended that the Petition submitted in this case should be dismissed.
DISCUSSION
Petitioner alleges he his contesting the legality of his “detention upon conviction and sentence.” On July 14, 2004, Petitioner was convicted of count one under 18 U.S.C. § 2113(a) and (d), bank robbery by firearm and count two under 18 U.S.C. § 924(c)(1)(A)(ii), brandishing a firearm in relation to and during a credit union robbery and sentenced 300 months and 84 months respectively. U.S. v. Houston, 04-H-179 (N.D. Ala.). Petitioner filed both a direct appeal and a § 2255 motion in the sentencing court.
Petitioner states Ground One is count two did not state a criminal offense. Petitioner states Ground Two is brandishing a firearm during a crime of violence standing alone without the proper criminal elements of possession of a firearm in furtherance of a violent crime is a non-criminal charging. Ground Three is attorneys violated rights by impermissibily constructively amending charge. Ground Four is broadening the basis for conviction of a crime that was not charged in the indictment is a fatal variance. In Petitioner's grounds, Petitioner cites no change in the substantive law that could meet Jones. (ECF No. 1 at 6-8). Petitioner never presents arguments regarding all of the Jones elements. Under the question about the savings clause, all he states is “substantive law changed such that conduct convicted of is deemed not to be criminal” but Petitioner does not explain how or what case does so or discuss the other Jones elements. (ECF No. 1).
The instant Petition, filed pursuant to 28 U.S.C. § 2241, is subject to summary dismissal because “it 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)). 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 Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001); In other words, as applied here, Petitioner's § 2241 action is barred unless he can demonstrate that the relief available to him under § 2255 is inadequate or ineffective. However, “the remedy afforded by § 2255 is not rendered inadequate or ineffective merely because an individual has been unable to obtain relief under that provision, or because an individual is procedurally barred from filing a § 2255 motion.” See In re Vial, 115 F.3d at 1194 n.5 (citations omitted).
Since Petitioner alleges he is contesting both his conviction and his sentence, out of an abundance of caution, both the Jones test and the Wheeler test will be addressed. Petitioner cannot meet either test.
Petitioner fails to satisfy criteria set forth by the Fourth Circuit to determine whether a § 2255 motion would be inadequate or ineffective to test the legality of a prisoner's detention. In In re Jones, 226 F.3d 328 (4th Cir. 2000), the court held that a petitioner must show:
(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.Id. at 333-34.
The Fourth Circuit established a test for when a petitioner may meet the savings clause under § 2255 when he contests his sentence, not only his conviction. U.S. v. Wheeler, 886 F.3d 415 (4th Cir. 2018). Section “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.
Consideration of this issue is appropriate under § 1915 review because the § 2255 savings clause is a jurisdictional requirement and subject matter jurisdiction may be raised sua sponte. In the past, the Fourth Circuit has held that if a petitioner cannot meet the savings clause requirements then the § 2241 petition “must be dismissed for lack of jurisdiction.” Rice, 617 F.3d at 807. In Wheeler, the Fourth Circuit again held that “the savings clause is a jurisdictional provision.” Wheeler, 886 F.3d at 423.
Petitioner was sentenced in 2004, any allegations as to a substantive law change must have occurred afterwards. Petitioner cites to U.S. v. Olano, 507 U.S. 725 (1993), Russell v. U.S., 369 U.S. 749 (1962), and Harris v. U.S., 536 U.S. 545 (2002). None of those cases can meet Jones or Wheeler due to being before his conviction.
To the extent Petitioner is attempting to present Alleyne v. U.S., 570 U.S. 99 (2013) as the applicable substantive law change to meet the savings clause tests, this fails for multiple reasons. Petitioner asserts the charge of brandishing is an element and not a sentencing enhancement after Alleyne. The United States Supreme Court held that “because mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an ‘element' that must be submitted to the jury.” Id. at 99-101. In Alleyne, the defendant was charged with using or carrying a firearm in relation to a crime of violence, 18 U.S.C. § 924(c)(1)(A), which carried a 5-year mandatory minimum sentence and increased to a 7-year mandatory minimum “if the firearm is brandished.” § 924(c)(1)(A)(ii). In Alleyne, the jury did not find that the defendant had brandished the firearm. Id. at 103-105.
In contrast, the jury in Petitioner's case was charged with finding the elements for a brandishing offense. United States v. Houston, 2:04-cr-179-RDP-SGC (N.D. Ala. Feb. 14, 2005, ECF No. 60 at 126-130, 144-146). Thus, the “element” that was problematic in Alleyne was submitted to Petitioner's jury in his case and the jury found him guilty.
Further, Alleyne cannot be used to meet the savings clause because it is a constitutional case and not a statutory interpretation case. See Roche v. Breckon, No. 7:18-CV-00325, 2020 WL 1121108, at *3 (W.D. Va. Mar. 6, 2020); Poe v. LaRiva, 834 F.3d 770, 774 (7th Cir. 2016). Petitioner could have sought § 2255 relief by seeking leave to file a § 2255 motion within one year of Alleyne, but the failure to do so does not make § 2255 ineffective/inadequate for savings clause purposes. See Mueller v. Warden of Lee Cty. No. 7:19-CV-00019, 2020 WL 1433547, at *5 (W.D. Va. Mar. 23, 2020).
Thus, Alleyne is not of assistance to this Petitioner to meet the In re Jones savings clause test.
As to Wheeler, the Alleyne decision has not been made retroactively applicable to cases on collateral review; Petitioner cannot meet the Wheeler test either. United States v. Stewart, 540 Fed.Appx. 171 (4th Cir. 2013); Jones v. Zych, 812 Fed.Appx. 115, 116 (4th Cir. 2020).
Because Petitioner has not shown that a motion filed pursuant to § 2255 is inadequate or ineffective to test the legality of his sentence thereby allowing him to file a § 2241 petition, the undersigned recommends this matter be dismissed.
RECOMMENDATION
Accordingly, it is recommended that the Petition be dismissed without prejudice and without requiring the respondent to file a return.
See Platts v. O'Brien, 691 Fed.Appx. 774 (4th Cir. June 22, 2017) (citing S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) (“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.”).
IT IS SO ORDERED.
Petitioner's 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
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).