Carter v. United States

• Court: District Court, D. South Carolina
• Decided: February 4, 2022
• Docket: 8:20-cv-03269
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA ANDERSON/GREENWOOD DIVISION

Melvin Christopher Carter, C/A No. 8:20-cv-03269-SAL

Petitioner,

v. OPINION AND ORDER Warden of Bennettsville Federal Correctional Institution,

Respondent.

Pro se petitioner Melvin Christopher Carter (“Petitioner”), a federal inmate, filed this habeas corpus action pursuant to 28 U.S.C. § 2241. This matter is before the court for review of the Report and Recommendation of Magistrate Judge Jacquelyn D. Austin (the “Report”), ECF No. 13, recommending that Petitioner’s § 2241 petition be dismissed. BACKGROUND Petitioner was convicted and sentenced by the United States District Court for the Southern District of Georgia after pleading guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g) and possession of a cocaine base with the intent to distribute. Petitioner now argues that his § 922(g) conviction and sentence should be vacated under Rehaif v. United States, 139 S. Ct. 2191 (2019), because the Government was required to prove he had knowledge that he was in the relevant category of persons barred from possessing a firearm and failed to do so. Petitioner did not file a § 2255 motion challenging his § 922(g) conviction or sentence. The Magistrate Judge recommends that his § 2241 petition be dismissed because the court lacks jurisdiction to consider it, to which Petitioner objects. See [ECF Nos. 13, 17.] STANDARD OF REVIEW The court is charged with making a de novo determination of those portions of the Report to which specific objections are made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge

with instructions. See 28 U.S.C. § 636(b)(1). A district court, however, is only required to conduct a de novo review of the specific portions of the Magistrate Judge’s Report to which an objection is made. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); Carniewski v. W. Virginia Bd. of Prob. & Parole, 974 F.2d 1330 (4th Cir. 1992). In the absence of specific objections to portions of the Report, this court is not required to provide an explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). “An objection is specific if it ‘enables the district judge to focus attention on those issues— factual and legal—that are at the heart of the parties’ dispute.’” Dunlap v. TM Trucking of the Carolinas, LLC, 288 F. Supp. 3d 654, 662 n.6 (D.S.C. 2017) (citing One Parcel of Real Prop. Known as 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996)). A specific objection to the

Magistrate Judge’s Report thus requires more than a reassertion of arguments from the complaint or a mere citation to legal authorities. See Workman v. Perry, No. 6:17-cv-00765, 2017 WL 4791150, at *1 (D.S.C. Oct. 23, 2017). A specific objection must “direct the court to a specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). “Generally stated, nonspecific objections have the same effect as would a failure to object.” Staley v. Norton, No. 9:07-0288, 2007 WL 821181, at *1 (D.S.C. Mar. 2, 2007) (citing Howard v. Sec’y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991)). The court reviews portions “not objected to—including those portions to which only ‘general and conclusory’ objections have been made—for clear error.” Id. (emphasis added) (citing Diamond, 416 F.3d at 315; Camby, 718 F.2d at 200; Orpiano, 687 F.2d at 47). Because Petitioner is proceeding pro se, the court is charged with liberally construing the pleadings to allow Petitioner to fully develop potentially meritorious cases. See Cruz v. Beto, 405

U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). Nevertheless, 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. Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 390–91 (4th Cir. 1990). DISCUSSION The Magistrate Judge thoroughly addressed the issues raised by Petitioner and correctly concluded that his § 2241 petition should be dismissed for lack of jurisdiction. The Magistrate

Judge explained that “defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255,” unless they are able to satisfy the requirements of § 2255’s savings clause. [ECF No. 13 at 5–6 (quoting Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010).] The § 2255 savings clause provides: An application for writ of habeas corpus on 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 sentence.

28 U.S.C. § 2255(e).

Petitioner failed to file a § 2255 motion in this matter, and the time to do so has expired. The Magistrate Judge explained that Petitioner’s filing of a § 2255 motion in a separate case (No. 1:17- cv-00130-DHB-BKE) where he was not convicted of a § 922(g) charge was insufficient to satisfy the requirement that he file a § 2255 motion in this criminal matter challenging his § 922(g) conviction at case number 1:02-cr-00006-DHB-BKE-1. See [ECF No. 13 at 9.] Petitioner’s failure to file a § 2255 motion challenging his conviction and sentence forecloses him from now being able to bring such a challenge under § 2241 because he cannot show that § 2255 was an “inadequate or ineffective remedy.” See In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (“[T]he 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.”). Petitioner’s objection that § 2241 is the proper avenue for this action is therefore, overruled. Furthermore, as the Report explained, even if Petitioner had previously challenged his § 922(g) conviction and sentence in the sentencing court, he cannot satisfy the requisite In Re Jones or Wheeler savings clause tests. When a petitioner contests his conviction under § 2241, he must demonstrate that § 2255 would be inadequate or ineffective to provide relief by establishing that: (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). And when a petitioner challenges his sentence, he must establish that: (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. United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018). If the Petitioner cannot satisfy each prong of the requisite savings clause test, the court lacks subject matter to consider his § 2241 petition. As the Magistrate Judge correctly explained, Petitioner is unable to satisfy the second prong of the Jones or Wheeler tests. First, there has not been a subsequent change in substantive law that renders the conduct upon which the Petitioner was convicted no longer criminal, as required by the Jones test. Indeed, being a felon in possession of a weapon remains criminal conduct.

Petitioner, however, argues that his § 922(g) conviction is no longer valid following Rehaif because the government could not prove that he knew he was a person prohibited from possessing a weapon. However, as the Report explained, Petitioner voluntarily entered a guilty plea to the charge of possession of a firearm by a convicted felon, and under the applicable Eleventh Circuit law, this plea was sufficient for the government to satisfy its burden of proof. See [ECF No. 13 at 2, 10–11 (citing Pullins v. Dobbs, No. 0:19-cv-3492-JFA, 2020 WL 4581743, at *3 (D.S.C. Aug. 10, 2020) (applying Eleventh Circuit law to find that a defendant’s guilty plea satisfies the Government’s burden and renders Rehaif irrelevant); Hughes v. Mackelburg, No. 8:19-cv-03390, 2020 WL 1429351, at *2 (D.S.C. Mar. 24, 2020) (same); Allen v. Dobbs, 1:20-cv-00321, 2020 WL

907513, at *4 (D.S.C. Jan. 31, 2020) (same), report and recommendation adopted, 2020 WL 901407 (D.S.C. Feb. 25, 2020), aff'd, 855 F. App’x 162 (4th Cir. 2021)]; see also Shepard v. Dobbs, No. 4:20-cv-2302, 2020 WL 6018923, at *2 (D.S.C. Oct. 12, 2020). Petitioner, therefore, is unable to satisfy the second prong of the Jones test. Second, the Report correctly found that Rehaif has not been held to apply retroactively on collateral review, as required by the second prong of the Wheeler test. See In re Price, 964 F. 3d 1045, 1048 (11th Cir. 2020) (“Rehaif did not announce a new rule of constitutional law and, even if it did, it has not been made retroactive to cases on collateral review by the Supreme Court (citing In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019))).

For the foregoing reasons, Petitioner has not satisfied the § 2255 savings clause requirements, and the court must dismiss his § 2241 petition for lack of jurisdiction. CONCLUSION After a thorough review of the Report, the applicable law, and the record of this case, the court finds no clear error in the Report. After a de novo review of each part of the Report to which

Petitioner specifically objected, the court hereby adopts the Report, ECF No. 13, and incorporates it by reference herein. Accordingly, Petitioner’s § 2241 petition is DISMISSED without prejudice and without requiring Respondent to file an answer or return. It is further ordered that a certificate of appealability is DENIED because Petitioner has failed to make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).1

IT IS SO ORDERED. /s/Sherri A. Lydon February 4, 2022 Sherri A. Lydon Florence, South Carolina United States District Judge

1 A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A prisoner satisfies this standard by demonstrating that reasonable jurists would find both that his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In the instant matter, the court finds that Petitioner has failed to make “a substantial showing of the denial of a constitutional right.”