Case No. 2:20-cv-04183-HMH-MGB
REPORT AND RECOMMENDATION
Adrian O. Parker, a pro se federal prisoner, brings this action seeking a writ of habeas corpus under 28 U.S.C. § 2241. In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2) (D.S.C.), the assigned United States Magistrate Judge has reviewed the petition and submits this Report and Recommendation to the United States District Judge. For the reasons discussed below, the undersigned recommends that the petition be summarily dismissed, without prejudice and without issuance and service of process.
Parker is an inmate at the Federal Correctional Institution in Bennettsville, South Carolina ("FCI Bennettsville"). On May 18, 2010, Parker and ten others were indicted by a grand jury in the Western District of North Carolina, Charlotte Division, for their participation in a long-running drug conspiracy. See United States v. Little et al, 3:10-cr-00087-FDW-4. On October 27, 2010, Parker pled guilty to a single count of conspiracy to possess with intent to distribute crack cocaine in excess of 50 grams in violation of 21 U.S.C. §§ 841(b)(1)(A), 846. (Crim Dkt. Nos. 237, 269.)
A federal court may take judicial notice of the contents of its own records, as well as those records of other courts. Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (noting that courts may take judicial notice of other courts' records and proceedings). The court may also take judicial notice of factual information located in postings on government web sites. See Tisdale v. South Carolina Highway Patrol, No. 0:09-cv-1009-HFF-PJG, 2009 WL 1491409, at *1 n.1 (D.S.C. May 27, 2009), aff'd, 347 F. App'x 965 (4th Cir. Aug. 27, 2009).
On January 14, 2013, the district court sentenced Parker to 210 months' imprisonment with 5 years' supervised release. (Crim. Dkt. Nos. 269, 276.) During the sentencing hearing, the district judge explicitly stated that Parker's sentence accounted for the Fair Sentencing Act ("FSA"), Pub. L. No. 111-220, 124 Stat. 2372, which was enacted August 3, 2010, and increased the amount of crack cocaine required to trigger the mandatory minimum prison terms for drug trafficking offenses under 21 U.S.C. § 841. (See Crim. Dkt. No. 276 at 16.) Specifically, Section 2(a) of the FSA increased the amount of cocaine required to trigger the 10-year mandatory minimum sentence from 50 grams to 280 grams, and the 5-year mandatory minimum sentence from 5 grams to 28 grams. The Supreme Court clarified in Dorsey v. United States, 567 U.S. 260 (2012), that these revised mandatory minimums applied to "pre-Act offenders," like Parker, who were sentenced after the FSA went into effect. 567 U.S. at 273.
Under the FSA's new thresholds, the district judge determined that Parker was subject to a statutory minimum of at least 5 years and a statutory maximum of up to 40 years in prison based on the amount of cocaine involved in his offense. (Crim. Dkt. No. 276 at 32-33, 46.) However, because Parker's applicable Guidelines range of 210 to 262 months already fell "within those statutory constraints," the district judge found that the FSA did not impact Parker's ultimate sentence of 210 months under the Guidelines. (Id. at 46.) Parker filed an appeal with the Fourth Circuit Court of Appeals on February 1, 2013, and the Fourth Circuit affirmed the district court's decision on September 13, 2013. (See Case No. 13-4057; see also Crim. Dkt. Nos. 272, 292.) The United States Supreme Court denied Parker's petition for writ of certiorari on January 13, 2014. (See Case No. 13-7752.)
Parker was charged with 50 to 150 grams of cocaine, meaning that he was no longer subject to the 10-year mandatory minimum sentence under the FSA.
On December 8, 2014, Parker filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, asserting that he did not receive the benefit of the FSA's higher drug thresholds during sentencing and that his attorney failed to argue for such, among other claims. (Crim. Dkt. No. 313.) On May 18, 2015, the district court denied Parker's § 2255 motion on the merits, noting that prior to Parker's sentencing hearing, his attorney did in fact file an objection to the presentence report—which set Parker's statutory range at 10 years to life in prison—and argued that the FSA triggered a statutory range of only 5 to 40 years' imprisonment with respect to Parker's offense. (Crim. Dkt. No. 336 at 8.) The court further noted that the district judge expressly "agreed with this argument" at the sentencing hearing and specifically found that Parker's statutory range was 5 to 40 years pursuant to the FSA's new thresholds. (Id.) Thus, the district court concluded that Parker received the benefit of the FSA during sentencing. The Fourth Circuit Court of Appeals dismissed Parker's subsequent appeal as untimely on December 23, 2015. (See Case No. 15-7436; see also Crim. Dkt. Nos. 340, 345.)
On January 13, 2015, Parker filed a motion to reduce his sentence pursuant to Amendment 782, which reduced the offense levels assigned to certain drug quantities listed under §§ 2D1.1 and 2D1.11 of the U.S. Sentencing Guidelines. U.S. Sentencing Guidelines Manual, app. C, amend. 782 (Supp. 2014). (Crim. Dkt. No. 314.) On September 16, 2015, the district court granted Parker's motion and lowered his offense level from 34 to 32 pursuant to Amendment 782. (Crim. Dkt. No. 343.) As a result of the lower offense level, Parker's sentence was reduced from 210 months' to 168 months' imprisonment. (Id.)
On January 11, 2016, Parker filed another motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, challenging the two-point enhancement applied during sentencing for his use of a firearm during a drug trafficking offense. (Crim Dkt. No. 346.) The district court dismissed the motion as successive, finding that Parker had failed to "secure the necessary authorization from the Fourth Circuit to file a second, successive motion under Section 2255 to present his challenge to the two-level enhancement." (Crim. Dkt. No. 347.) The Fourth Circuit dismissed Parker's subsequent appeal on June 1, 2016. (See Case No. 16-6200; see also Crim. Dkt. No. 364.)
Parker filed this motion pursuant to "Amendment 599," but the district court found it was more appropriately construed as a § 2255 petition.
On April 3, 2018, Parker filed a motion for a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(2), again challenging the district court's alleged failure to apply the FSA during sentencing. (Crim. Dkt. No. 382.) Specifically, Parker relied on Amendment 750 to the U.S. Sentencing Guidelines, which implemented the statutory ranges promulgated by the FSA. See U.S. Sentencing Guidelines Manual, app. C, amend. 750 (2010). On April 4, 2018, the district court issued the following text order denying Parker's § 2255 motion:
[Parker] moves for his sentence to be reduced, asserting that he did not receive the benefits of USSG Amendment 750 (retroactively applying the benefits of the Fair Sentencing Act). First, [Parker's] pro se motion is effectively a successive section 2255 motion (see 3:14cv676 and 3:16cv35), and [Parker] has not moved for authorization to file this successive motion. Second, the issue he raises was specifically addressed in his prior pro se filings. While he claims in the instant motion that he did not receive the retroactive benefits of Amendment 750, he was sentenced AFTER the Fair Sentencing Act took affect. Therefore he was NOT entitled to the retroactive benefits of Amendment 750 since he already received the benefits of the Fair Sentencing Act in his original sentence. Therefore, the instant pro se motion is DENIED. Furthermore the Court denies him a certificate of appealability. Finally, the Court denies him counsel because this is not a extraordinary issue justifying counsel and this issue has already been fully addressed by the Court.The Fourth Circuit dismissed Parker's subsequent appeal on July 24, 2018. (See Case No. 18-6517; see also Crim. Dkt. No. 386.)
On May 7, 2019 (Crim. Dkt. No. 396), and January 28, 2020 (Crim. Dkt. No. 413), Parker filed two motions, respectively, to reduce his sentence pursuant to Section 404 of the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018). Specifically, Section 404 renders the reforms of the Fair Sentencing Act retroactive, such that "[a] court that imposed a sentence for a covered offense may, on motion of the defendant, . . . impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 . . . were in effect at the time the covered offense was committed." § 404(b), 132 Stat. at 5222. A "covered offense" means "a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010, that was committed before August 3, 2010," such as Parker's drug offense under § 841. Id. In opposing these motions, the Government explained that Parker was not entitled to a sentence reduction under the First Step Act because he had already "received the benefit of the lower statutory sentencing range applicable to a drug-trafficking offense involving 50 grams of crack cocaine provided in the Fair Sentencing Act" in his original sentence. (Crim. Dkt. No. 421 at 2.)
On July 30, 2020, Parker filed another motion to reduce his sentence, this time relying on Section 402 of the First Step Act, which broadens the safety valve relief available under 18 U.S.C. § 3553(f) and allows a district court to disregard the mandatory minimum sentence for certain drug offenses, including under 21 U.S.C. § 841, if the defendant satisfies various factors. (Crim. Dkt. No. 423.) Section 402 applies only "to a conviction entered on or after the date of enactment of [the First Step Act]," December 21, 2018. § 402(b), 132 Stat. at 5221. On September 15, 2020, the district court concluded that Parker was not entitled to a sentence reduction under Section 402 of the First Step Act and denied his motion accordingly. (Crim. Dkt. No. 427.) Shortly thereafter, the district court denied as moot Parker's two motions for a sentence reduction under Section 404 of the First Step Act (Crim. Dkt. Nos. 396, 413), explaining that the court had already considered and rejected "the information provided by Defendant in the [Section 404] Motions" when it denied his Section 402 request. (Crim. Dkt. No. 433.)
Although Parker was convicted long before December 21, 2018, the district court still addressed his motion on the merits.
On September 11, 2020, Parker filed yet another motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. (Crim. Dkt. No. 426.) The district court dismissed his petition as "largely illegible" and successive on September 17, 2020. (Crim. Dkt. No. 429.) Parker then filed another motion to reduce his sentence on October 21, 2020 (Crim. Dkt. No. 434), and a motion for release from custody on January 12, 2021 (Crim. Dkt. No. 436), neither of which have been addressed by the district court at this time.
It is against this procedural background that Parker now attempts to reduce his sentence under 28 U.S.C. § 2241. In filing the instant petition for a writ of habeas corpus, Parker again cites Section 404 of the First Step Act, claiming that he is entitled to a reduction in sentence pursuant to the Fair Sentencing Act's 5-year mandatory minimum. More specifically, Parker contends that the district court "committ[ed]" to a 5-year sentence under the Fair Sentencing Act when it issued its "Statement of Reasons" for the Judgment in his underlying criminal case, marking the "box" for "mandatory minimum sentence imposed." (Dkt. No. 5 at 2; Dkt. No. 1 at 11; see also Dkt. No. 1 at 2-3, 7; Crim. Dkt. No. 270.) Parker argues that his current sentence of 168 months' imprisonment is therefore unconstitutional. (Dkt. No. 1 at 7.)
Although not entirely clear, Parker also appears to challenge what he considers to be inconsistencies in some of his court records, implying that such errors contributed to or are reflective of an improper sentence. Parker identifies the following court records: the Judgment issued on January 23, 2013 (Crim. Dkt. No. 269); the Statement of Reasons issued on January 23, 2013 (Dkt. No. 1 at 11); the Amended Judgment issued on March 20, 2013 (Crim. Dkt. No. 381); and the Order Regarding Motion for Sentence Reduction issued on September 16, 2015 (Crim. Dkt. No. 343).
STANDARD OF REVIEW
Under the established local procedure in this judicial district, a careful review has been made of Parker's pro se petition pursuant to the Rules Governing Section 2254 Cases in the United States District Courts; the Anti-Terrorism and Effective Death Penalty Act of 1996; 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); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); and Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
See Rule 1(b), Rules Governing § 2254 Cases (allowing district courts to apply any or all of these rules to § 2241 petitions).
The narrow question before the Court is whether it "plainly appears" that Parker is not entitled to any relief. Rule 4, Rules Governing § 2254 Cases. If so, his petition must be dismissed; if not, the warden must respond. Id. Because Parker is a pro se litigant, his petition is accorded liberal construction. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007); Gordon, 574 F.2d at 1151. Even under this less stringent standard, however, the Court cannot 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, 390-91 (4th Cir. 1990). Such is the case here.
I. Relief Under the First Step Act
As stated above, Parker's § 2241 petition alleges that he is entitled to a reduced sentence based on the First Step Act. (See Dkt. No. 1.) Such relief, however, is more properly raised in a motion filed pursuant to 18 U.S.C. § 3582(c)(1)(B) with the sentencing court. See First Step Act, § 404(b), 132 Stat. at 5222 (authorizing only the district court "that imposed a sentence for a covered offense" to impose a reduced sentence under this section); see also United States v. Wirsing, 943 F.3d 175, 185 (4th Cir. 2019) (confirming that § 3582(c)(1)(B) is the proper vehicle to seek relief under the First Step Act). Parker was not sentenced in this Court; thus, to the extent he is requesting relief under the First Step Act, this Court does not have the authority to grant it. See, e.g., Patton v. Saad, No. 1:17-cv-00186, 2020 WL 1330351, at *2 (N.D. W. Va. Mar. 23, 2020) (finding that district court had no authority to grant § 2241 motion seeking reduced sentence under the First Step Act because such relief is awarded at the sentencing court's discretion in the underlying criminal case and petitioner was sentenced by a different court).
Although a district court may, in its discretion, transfer a wrongly filed petition to the appropriate court, the undersigned finds that any such transfer would be a "waste of judicial resources" in the instant case. Williams v. Warden of Fed. Corr. Inst. Tallahassee, Fla., No. 1:15-cv-01086-RBH, 2015 WL 2345272, at *3 (D.S.C. May 14, 2015). Notwithstanding the fact that 28 U.S.C. § 2241 is not the proper vehicle for the relief sought by Parker, the First Step Act expressly states that,
[n]o court shall entertain a motion made under this section to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 . . . or if a previous motion made under this section to reduce the sentence was, after the date of enactment of this Act, denied after a complete review of the motion on the merits.First Step Act, § 404(c), 132 Stat. at 5222. Here, Parker's original sentence was plainly imposed in accordance with the amendments of the Fair Sentencing Act. Indeed, the district judge explicitly found that Parker's sentence was constrained to a statutory range of 5 to 40 years' imprisonment under the Fair Sentencing Act, and that his sentence of 210 months fell squarely within those statutory constraints. (Crim. Dkt. No. 276 at 16, 32-33, 46.) The district court further reiterated that Parker's original sentence was determined in accordance with the Fair Sentencing Act in denying his § 2255 petition on May 18, 2015, and his motion for a reduction in sentence pursuant to Amendment 270 on April 4, 2018. (Crim. Dkt. No. 336.) And finally, the district court denied Parker's most recent attempts to reduce his sentence under Sections 402 and 404 of the First Step Act. (Crim. Dkt. No. 427, 433.)
Because the appropriate sentencing court considered Parker's sentence in light of the Fair Sentencing Act and ruled accordingly, the undersigned finds that the First Step Act explicitly precludes Parker from filing another motion for reduction in sentence and therefore recommends that the Court dismiss Parker's request here. See Kittrells v. Warden, FCI McDowell, No. 1:18-cv-01365, 2019 WL 4309027, at *1 (S.D.W. Va. Sept. 11, 2019) (adopting recommendation that the court dismiss § 2241 action seeking reduction in sentence pursuant to the First Step Act where the sentencing court already ruled on petitioner's sentence in accordance with the Fair Sentencing Act).
II. Relief Pursuant to 28 U.S.C. § 2241
Parkers' petition plainly seeks relief under the First Step Act. However, in an abundance of caution, the undersigned also considers Parker's claim pursuant to § 2241 insofar as he intends to challenge sentencing issues beyond the purview of the First Step Act. It is well-established that a federal prisoner may only seek collateral review of his conviction and sentence through § 2255. Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010). Once the prisoner has filed an unsuccessful § 2255 motion, as Parker has here, he may not pursue additional collateral review except under narrow circumstances. One such avenue is through the § 2255 savings clause, which allows the prisoner to file a § 2241 petition for a writ of habeas corpus if it "appears that the remedy by [a § 2255] motion is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). 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." In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997).
The Fourth Circuit Court of Appeals held in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), that a petitioner must satisfy the following criteria in order to demonstrate that a § 2255 motion is inadequate or ineffective to test the legality of his sentence:
(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.886 F.3d at 429.
In the instant case, any sentencing error alluded to by Parker falls well-short of a "fundamental defect" as required under Wheeler. As the district court explained in the initial § 2255 action, the sentencing judge properly applied the Fair Sentencing Act's applicable statutory range of 5 to 40 years' imprisonment in determining Parker's sentence; because the Guidelines range fell within 5 to 40 years, the Fair Sentencing Act did not materially impact Parker's sentence. (Crim. Dkt. No. 336.) To the extent Parker believes that his court records indicate otherwise or somehow suggest that he was sentenced to only 5 years' imprisonment under the Fair Sentencing Act, he is mistaken.
Indeed, the Judgement issued on January 23, 2013 (Crim. Dkt. No. 269), clearly states that Parker was sentenced to 210 months' imprisonment. The accompanying Statement of Reasons—which notes, "mandatory minimum imposed"—does not override that sentence or imply that Parker is entitled to a sentence of only 5 years. (Dkt. No. 1 at 11.) Rather, it simply indicates that Parker's conviction carried a statutory minimum of 5 years at the time of sentencing, and that his sentence met or surpassed that minimum threshold, as required under the Fair Sentencing Act. The district judge touched on this point during the sentencing hearing, explaining to Parker that while the court could theoretically depart downward from his Guidelines range, his sentence at the very least had to impose a term of 5 years' imprisonment as required under the Fair Sentencing Act. And because the district judge expressly declined to apply a variance to the Guidelines range, Parker's sentence plainly satisfied and exceeded this mandatory minimum at 210 months' imprisonment. (See Crim. Dkt. No. 276 at 46-51.)
Contrary to his contentions, Parker's court records are consistent with the above sentence. Indeed, the Amended Judgment issued on March 20, 2013 (Crim. Dkt. No. 281), reflects the same 210-month sentence contained in the initial Judgment (Crim. Dkt. No. 269). The only change to Parker's sentence came in September 2015, when the district court granted his motion for a reduction in his sentence pursuant to Amendment 782 and reduced Parker's term from 210 months' to 168 months' imprisonment under the Guidelines. (Crim. Dkt. No. 343.) Thus, the undersigned finds that there is no fundamental defect within Parker's court records, and that his 210-month sentence—now reduced to 168 months—is proper under the Fair Sentencing Act. See McCoy v. Bolster, No. 2:19-cv-00425, 2020 WL 4690350, at *5 (E.D. Va. July 1, 2020), adopted, 2020 WL 4680134 (E.D. Va. Aug. 12, 2020) ("Because Petitioner's requested remedy would mandate the exact same sentence, Petitioner cannot show there has been an error sufficiently grave to be deemed a fundamental defect, and Petitioner fails to satisfy the fourth prong from Wheeler."); see also Hernandez-Vilar v. Antonelli, No. 5:18-cv-00183-MGL-KDW, 2018 WL 1320238, at *2 (D.S.C. Feb. 14, 2018), adopted, 2018 WL 1124399 (D.S.C. Mar. 1, 2018) (finding that the court could not proceed under § 2241 "to overrule the sentencing court, which has already considered and rejected Petitioner's claims relating to the underlying validity of his convictions and sentence").
It appears the purpose of the Amended Judgment was simply to correct a clerical error; the amended filing does not impact the sentence itself. (Crim. Dkt. No. 396.)
Parker's petition expresses confusion with respect to his initial Judgment (Crim. Dkt. No. 269) and the district court's subsequent Order Granting Motion to Reduce Sentence (Crim. Dkt. No. 343). More specifically, he asks this Court to clarify which document is "accurate." (See Dkt. No. 1 at 7.) To be clear, both documents are accurate. However, the district court's more recent order reducing Parker's term to 168 months' imprisonment (Crim. Dkt. No. 343) governs his sentence in the underlying criminal case as of the date of this Report and Recommendation. --------
Because a petitioner must satisfy all four requirements under Wheeler in order to confer jurisdiction on the § 2241 court, Parker cannot use the savings clause to challenge his conviction here. See Wheeler, 886 F.3d at 426 (4th Cir. 2018) (explaining that the savings clause requirements are jurisdictional and may not be waived). Thus, to the extent Parker seeks relief beyond the First Step Act, the undersigned still recommends that the Court dismiss his § 2241 action for lack of jurisdiction.
The undersigned therefore RECOMMENDS that the Court DISMISS the petition for lack of jurisdiction, without prejudice and without requiring the respondent to file a return.
IT IS SO RECOMMENDED.
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE January 28, 2021
Charleston, South Carolina
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
Post Office Box 835
Charleston, South Carolina 29402
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).