Opinion
C. A. 5:21-1531-SAL-KDW
12-06-2021
Federico Rivera, Petitioner, v. Brian Dobbs, Warden, Respondent.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
Federico Rivera (“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. ECF No. 21. 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. 22. Petitioner filed a Response in Opposition to the Summary Judgment Motion on September 2, 2021. ECF No. 24.
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 July 8, 1998, Petitioner entered a guilty plea to conspiracy to possess and distribute cocaine, possession with intent to distribute cocaine, use and carrying a firearm during a drug trafficking offense, and felon in possession of a firearm. See United States v. Rivera, C/A No. 1:97-cr-00089-JJM-LDA-1 (D.R.I. Nov. 2, 1998). On November 13, 1998, Petitioner was sentenced to 181 months imprisonment. Id. at ECF No. 63. Petitioner appealed his convictions and sentences, and the First Circuit Court of Appeals affirmed the judgment on June 5, 2000. Id. at ECF No. 70.
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 sentences. ECF Nos. 1; 1-1.
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 for possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1), should be vacated. ECF No. 1-1 at 2-5. 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 he is actually innocent of the offenses brought against him. Id. at 4-5. 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. 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. Subsequent to the filing of the instant petition, the holding in Gary was reversed by Greer v. United States, U.S., 141 S.Ct. 2090 (2021) which held that a Rehaif error is not a basis for plain error review on direct appeal unless the defendant shows that he would have presented evidence that he did not know he was a felon.
“[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 contends Petitioner's claim does not meet the savings clause's jurisdictional requirements. ECF No. 21-1 at 4-7. Respondent argues Petitioner cannot satisfy the first half of the second In Re Jones prong as Petitioner has failed to file a § 2255 motion. Id. at 5. Respondent also contends Petitioner cannot show § 2255 is inadequate or ineffective because his time to file a § 2255 motion has expired. Id. at 6.
In his response, Petitioner contends Respondent's assessment that his claim does not meet the savings clause is incorrect. ECF No. 24 at 3. Petitioner argues In Re Jones does not require every individual to have exhausted § 2255 before requesting a writ under a § 2241 habeas corpus. Id. at 4. Petitioner states he did not file a § 2255 motion because he did not have a viable claim until Rehaif was decided in June 2019, and now the time for filing a § 2255 motion has expired. Id. Petitioner cites to case law addressing the purpose and scope of the writ of habeas corpus and argues his claim satisfies the jurisdictional requirement of In Re Jones. Id. at 5-8.
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 conviction and sentence. Because Petitioner never filed a § 2255 motion to vacate, he is not able to satisfy the second prong of In Re Jones and Wheeler as he cannot show that settled substantive law changed subsequent to his direct appeal and first § 2255 motion. To the extent Petitioner argues his § 2255 remedy is inadequate or ineffective because his time to file a § 2255 motion has expired, this argument is without merit. The Fourth Circuit has unequivocally held that “§ 2255 is not inadequate or ineffective merely because an individual is unable to obtain relief under that provision.” In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000); In re Vial, 115 F.3d at 1194 n.5 (finding that a procedural impediment to § 2255 relief, such as the statute of limitations or the rule against successive petitions, does not render § 2255 review “inadequate” or “ineffective”). The undersigned finds Petitioner fails to meet the In Re Jones and Wheeler standard to show that § 2255 is inadequate or ineffective to test the legality of his sentence. Because Petitioner's claims cannot be addressed under § 2241, the undersigned recommends Respondent's Motion for Summary Judgment be granted.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the court grant Respondent's Motion for Summary Judgment, ECF No. 21, 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
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).