United States District Court, D. South Carolina, Charleston Division
July 15, 2014
Jermaine Charles Duffy, Petitioner,
Travis Bragg, Warden, Bennettsville FCI, Respondent.
REPORT AND RECOMMENDATION
WALLACE W. DIXON, Magistrate Judge.
Petitioner, Jermaine Charles Duffy ("Petitioner"), is a federal prisoner at the Federal Correctional Institution in Bennettsville, South Carolina ("FCI Bennettsville"). Petitioner, proceeding pro se and in forma paupers, filed this Petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the 300-month sentence imposed upon him by the United States District Court for the Northern District of Georgia. (See Dkt. No. 1 at 2-3 of 10.) This matter is before the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (DSC) for initial screening.
PRO SE HABEAS REVIEW
Under established local procedure in this judicial district, a careful review has been made of this 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 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, and other habeas corpus statutes. Pro se petitions are held to a less stringent standard than those drafted by attorneys; Gordon v. Leeke , 574 F.2d 1147, 1151 (4th Cir. 1978); and a federal court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially-meritorious case. Erickson v. Pardus , 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se petition, the petitioner's allegations are assumed to be true. Fine v. City of New York , 529 F.2d 70, 74 (2d Cir. 1975). 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). Such is the case here.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner is challenging his enhanced sentence, imposed pursuant to 18 U.S.C. § 924(e), the Armed Career Criminal Act ("ACCA"), after a jury convicted him of violating 18 U.S.C. § 922(g), i.e. being a felon in possession of a weapon. On February 3, 2009, the United States Court of Appeals for the Eleventh Circuit affirmed Petitioner's conviction and sentence. See United States v. Duffy, 315 F.Appx. 216 (11th Cir. 2009). Petitioner alleges in his current petition that his § 2255 motion was dismissed by the United States District Court for the Northern District of Georgia on June 16, 2010. (See Dkt. No. 1 at 4 of 10.)
In the instant § 2241 petition, Petitioner challenges the § 924(e) enhancement of his sentence. (See generally Dkt. No. 1; Dkt. No. 1-1.) Petitioner alleges his sentence was "enhanced under 924(e) utilizing a prior conviction under Georgia state that does not qualify, O.C.G.A. § 16-8-2, theft by taking, as a crime of violence." (Dkt. No. 1 at 8 of 10.) Petitioner contends that his sentence exceeds the statutory maximum because his conviction of "theft by taking... qualifies for a modified categorical approach, " and does not constitute a crime of violence. (Dkt. No. 1 at 8 of 10; Dkt. No. 1-1 at 3 of 9.) In arguing the conviction does not constitute a crime of violence, Petitioner states,
I would argue that theft by taking in my case is distinguishable from other such cases of it's [sic] kind as the car in question belonged to my mother, ... and that the elements fo "risk of physical injury" and "risk of physical force" are not applicable, as my mother was asleep and in no danger, actual or potential, when I took they keys from her purse, ... as there was no confrontation. I've never been violent toward my mother and in fact, she didn't realize the car was gone until the next day. I would also argue that the stealthy manner in which I obtained the keys is indicative of my intent to avoid confrontation with my mother; hence mitigating, if not dispelling completely, any element of potential violence.
(Dkt. No. 1-1 at 3-4 of 9.) Petitioner asserts the conviction should not have served to enhance his sentence because "there was never a potential for physical injury, physical force, nor was there any actual use of force...." (Id. at 4 of 9.) Petitioner seeks to have his "unconstitutional sentence" vacated, and to be resentenced "without the § 924(e) enhancement being applied." (Id. at 8 of 9.)
"[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) (en banc)). A § 2255 motion must be brought in the sentencing court. Generally speaking, a "a § 2255 motion attacks the legality of detention, '" whereas "a § 2241 petition attacks the execution of a sentence rather than its validity.'" Brown v. Rivera, Civ. A. No. 9:08-cv-3177-PMD-BM , 2009 WL 960212, at *2 (D.S.C. Apr. 7, 2009) (quoting Bradshaw v. Story , 86 F.3d 164, 166 (10th Cir. 1996), and citing United States v. Miller , 871 F.2d 488, 489-90 (4th Cir. 1989)). A petition pursuant to § 2241 must be brought against the warden of the facility where the prisoner is being held. 28 U.S.C. § 2241(a); Rumsfeld v. Padilla , 542 U.S. 426 (2004). Because Petitioner is currently incarcerated in the District of South Carolina, this § 2241 petition was properly filed in this Court. However, the threshold question in this case is whether Petitioner's claims are cognizable under § 2241.
Only if a federal prisoner can satisfy the savings clause of § 2255, may he pursue relief through a § 2241 habeas petition. See San-Miguel v. Dove , 291 F.3d 257, 260-61 (4th Cir. 2002); In re Jones , 226 F.3d 328, 333 (4th Cir. 2000). The fact that relief under § 2255 is barred procedurally or by the gate-keeping requirements of § 2255 does not render the remedy of § 2255 inadequate or ineffective. In re Jones , 226 F.3d at 332-33; Chisholm v. Pettiford, Civ. A. No. 606-2032-PMD-WMC , 2006 WL 2707320, at *2 (D.S.C. Sept. 18, 2006); Young v. Conley , 128 F.Supp.2d 354, 357 (S.D.W.Va. 2001) aff'd, 291 F.3d 257 (4th Cir. 2002), cert. denied, 537 U.S. 938 (2002). To trigger the savings clause of § 2255(e), and proceed under § 2241, requires 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.
Jones , 226 F.3d at 333-34.
Petitioner asserts that the "savings clause in § 2255(e) reaches [his] pure § 924(e)-Begay error claim of illegal detention above the statutory maximum penalty in § 924(a)." (Dkt. No. 1 at 8 of 10.) Petitioner asserts that § 2255 is "not adequate to test [his] continued detention" because of the "one year deadline that governs habeas corpus relief under 28 U.S.C. § 2255." (Dkt. No. 1-1 at 4 of 9.) Citing to Bryant v. Warden , 738 F.3d 1253 (11th Cir. 2013), Petitioner argues that he is entitled to proceed under § 2241. (Dkt. No. 1-1 at 6-7 of 9.)
The undersigned disagrees with Petitioner and therefore recommends that his § 2241 petition be dismissed. The Fourth Circuit has not extended the reach of the savings clause to petitioners who challenge only their sentences. See United States v. Poole , 531 F.3d 263, 267 n.7 (4th Cir. 2008); see also Darden v. Stephens , 426 F.Appx. 173, 174 (4th Cir. 2011) (refusing to extend the savings clause to reach the petitioner's claim that he was actually innocent of being a career offender).
Petitioner does not allege that the conduct for which he was sentenced, i.e. being a felon in possession of a weapon in violation of 18 U.S.C. § 922(g), was rendered non-criminal by any substantive law change since the filing of his direct appeal. Further, Petitioner does not allege that he is or was factually innocent of his predicate convictions, which were considered by the sentencing court under § 924(e), which resulted in Petitioner's ACCA sentence enhancement. Accordingly, Petitioner is not entitled to proceed under § 2241.
Based on the foregoing, it is recommended that Petitioner's Motion "for a Change of Venue" (Dkt. No. 3) be DENIED, and that the instant § 2241 Petition be dismissed without prejudice and without requiring Respondent to file a return.