United States District Court, D. South Carolina
March 21, 2014
Frankie L. Doctor, Petitioner,
Mansukhani, Warden, Respondent.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, Magistrate Judge.
The petitioner, Frankie L. Doctor ("Petitioner"), a self-represented prisoner confined at Federal Correctional Institution ("FCI") Estill, filed a petition for 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 Civil Rule 73.02(B)(2)(c) DSC. Having reviewed the petition in accordance with applicable law, the court concludes that it should be summarily dismissed.
I. Factual and Procedural Background
On April 20, 2006, this court sentenced Petitioner to 260 months' imprisonment after being found guilty of possession of a firearm by a convicted felon. (ECF No. 1 at 2S3.) Petitioner's conviction and sentence were affirmed by the United States Court of Appeals for the Fourth Circuit on August 17, 2006. (Id. at 4); see also United States v. Doctor, No. 06-4428, 2006 WL 3407820 (4th Cir. Nov. 27, 2006), cert. denied, 549 U.S. 1300 (2007). Petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on February 10, 2012, which the sentencing court denied on January 10, 2013. (Id. at 4); see also United States v. Doctor, C/A No. 3:05-681-JFA, 2013 WL 139485 (D.S.C. Jan. 10, 2013), aff'd, No. 13-6205, 2013 WL 1735639 (4th Cir. Apr. 23, 2013). Petitioner alleges actual innocence of his sentence enhancement,  claiming that his former conviction for assault and battery of a high and aggravated nature ("ABHAN") does not qualify as a predicate offense under the Armed Career Criminal Act ("ACCA"), citing United States v. Hemingway , 734 F.3d 323 (4th Cir. 2013) (finding that South Carolina crime of ABHAN is not a categorically violent felony under the ACCA). (ECF No. 1 at 8; see also ECF No. 1-1 at 1S4.) Plaintiff seeks re-sentencing without the ACCA enhancement. (ECF No. 1 at 9.)
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in this case pursuant to the Rules Governing § 2254 Cases,  28 U.S.C. § 2254; the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214; 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) (en banc); Todd v. Baskerville , 712 F.2d 70 (4th Cir. 1983).
This court is required to liberally construe pro se petitions. Erickson v. Pardus , 551 U.S. 89 (2007). Pro se petitions are held to a less stringent standard than those drafted by attorneys, id.; Gordon v. Leeke , 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. Hughes v. Rowe , 449 U.S. 5, 9 (1980); Cruz v. Beto , 405 U.S. 319 (1972). When a federal court is evaluating a pro se petition the petitioner's allegations are assumed to be true. Erickson , 551 U.S. at 93 (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555-56 (2007)).
However, 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 (4th Cir. 1990). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so; however, a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett , 174 F.3d 1128 (10th Cir. 1999), construct the petitioner's legal arguments for him, Small v. Endicott , 998 F.2d 411 (7th Cir. 1993), or "conjure up questions never squarely presented" to the court, Beaudett v. City of Hampton , 775 F.2d 1274, 1278 (4th Cir. 1985).
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); Ennis v. Olsen, No. 00-7361 , 2000 WL 1868982, at *1 (4th Cir. Dec. 22, 2000). In this case, Petitioner's records reflect that he filed a motion to vacate under § 2255 on February 10, 2012, which the court denied on January 10, 2013. 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).
Additionally, 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.
In re Jones , 226 F.3d at 333-34. In the present case, Petitioner alleges that he is "actually innocent" of his sentence enhancement pursuant to the ACCA. (ECF No. 1 at 8.) Petitioner argues that his "ABHAN conviction in South Carolina is not a crime of violence as defined under the ACCA in light of [Hemmingway]. (ECF No. 1-1 at 1.) However, Petitioner has not demonstrated that the conduct for which he was convicted has been deemed non-criminal by any substantive law change since his direct appeal or first § 2255 motion. Further, the Fourth Circuit has not extended the reach of the savings clause to petitions which challenge only a sentence. United States v. Poole , 531 F.3d 263, 267 n.7 (4th Cir. 2008). Accordingly, Petitioner's action, seeking a determination that his sentence is illegal, fails to state a cognizable § 2241 claim. See United States v. Pettiford , 612 F.3d 270, 284 (4th Cir. 2010). As Petitioner has not shown that a motion filed pursuant to § 2255 is inadequate or ineffective to test the legality of his conviction or sentence, this matter should be dismissed.
Accordingly, the court recommends that the petition in the above-captioned case be dismissed without prejudice and without requiring the respondent to file a return.