United States District Court, D. South Carolina, Florence Division
ORDER ADOPTING THE REPORT AND RECOMMENDATION AND DISMISSING PETITIONER'S HABEAS PETITION WITHOUT PREJUDICE AND WITHOUT REQUIRING RESPONDENT TO FILE A RESPONSE
MARY G. LEWIS, District Judge.
This case was filed as a 28 U.S.C. § 2241 action. Petitioner is proceeding pro se. The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting that Petitioner's petition for habeas relief be dismissed without prejudice and without requiring Respondent to file a response. The Report was made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina.
The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
The Magistrate Judge filed the Report on October 1, 2014, and the Clerk of Court entered Petitioner's objections on October 14, 2014. The Court has carefully considered the objections, but finds them to be without merit. Therefore, it will enter judgment accordingly.
Petitioner is presently incarcerated in the Federal Correctional Institution in Estill, South Carolina. He was convicted on June 30, 1995, in the United States District Court for the Southern District of Florida of possession with intent to distribute cocaine base and conspiracy to possess with intent to distribute cocaine base. Prior to his conviction, the government filed notice that it intended to seek sentencing enhancements under 21 U.S.C. §§ 841 and 851. On October 27, 1995, the district court sentenced Petitioner to a term of life imprisonment. The Eleventh Circuit affirmed the convictions and sentence and the Supreme Court denied Petitioner's petition for certiorari. Thereafter, the district court denied Petitioner's motion to vacate under 28 U.S.C. § 2255 and the Eleventh Circuit denied Petitioner's request for a certificate of appealability. Petitioner then filed a Fed.R.Civ.P. 60(b) motion, which the district court denied. The Eleventh Circuit affirmed the district court's judgment. Petitioner later filed a § 2241 petition with this Court, which the Court dismissed without prejudice.
Habeas relief pursuant to § 2241 in a case such as this is available only if a § 2255 motion is inadequate or ineffective to test the legality of detention. In re Jones, 226 F.3d 328, 333 (4th Cir. 2000) (citing 28 U.S.C. § 2255). "It is the petitioner's burden to establish that his remedy under § 2255 is inadequate or ineffective." Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999).
Section 2255 is inadequate and ineffective to test the legality of a conviction when:
(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. According to the Magistrate Judge, "Petitioner cannot satisfy all of the elements of this test." Report 4. The Court agrees.
In Petitioner's first objection to the Report, he argues that, in recommending dismissal, the Magistrate Judge failed to consider Persaud v. United States, 134 S.Ct. 1023 (2014). In the underlying Fourth Circuit Persaud case, the court, in effect, agreed with the district court that, for purposes of the savings clause of § 2255, a § 2241 petition is limited to an attack on a petitioner's conviction. United States v. Persaud, 517 F.Appx. 137 (4th Cir. 2013). In other words, a petitioner could not use § 2241 to challenge his sentence. Id.
Persaud filed a petition for certiorari with the Supreme Court. In its response to Persaud's petition, the government agreed with the petitioner and argued that a § 2241 petition can be employed to test the validity of both a conviction and a sentence. In the Supreme Court's short three-sentence opinion, it granted Persaud's petition for certiorari and vacated and remanded the Fourth Circuit's judgment "for further consideration in light of the position asserted by the Solicitor General in his brief for the United States." United States v. Persaud, 134 S.Ct. 1023 (2114). Later, in granting a joint motion filed by the parties, the Fourth Circuit remanded the case to the district court for consideration of the government's arguments in the first instance. United States v. Persaud, No. 12-8068, slip op. at 2 (4th Cir. May 7, 2014). The case is presently pending before the district court in the Western District of North Carolina.
In his objections, Petitioner states that he "cites... Persaud for the proposition... that his mandatory minimum (in light of Alleyne ) is based upon the erroneous conviction(s) set forth in the government's information now verified [by] the U.S. Probation Office with supporting document(s)." Objections 2 n.1. Although not entirely clear, it appears that the essence of Petitioner's argument is that he is citing Persaud for the proposition that he can challenge his sentence under § 2241. There are several problems with Petitioner's position. For purposes of this opinion, however, the Court will discuss just two.
First, assuming that Petitioner can attack his sentence under § 2241, to the extent that he seeks to benefit from the Supreme Court's ruling in Alleyne v. United States, 133 S.Ct. 2151, 2155 (2013) (holding that a fact that triggers a mandatory minimum sentence must be submitted to the jury and found beyond a reasonable doubt), he is unable to do so. Unfortunately for Petitioner, Alleyne is not retroactive to cases on collateral review. United States v. Reyes, 755 F.3d 210, 212-13 (3d Cir. 2014). To the extent, however, that Petitioner avers that the district court improperly considered his predicate convictions for sentencing purposes, this is a matter that should be raised in a § 2255 action. Moreover, even if Alleyne was applicable to this particular argument, again, its holding is not retroactive. Consequently, for these reasons, the Court will overrule this objection.
In Petitioner's second objection, he maintains that the district court did not have subject matter jurisdiction over his case. Objections 2-3. According to Petitioner, "the indictment [that] Petitioner was convicted did not allege a drug amount." Id. 3. Petitioner further contends that, "to be sentence[d] pursuant to Section (b)(1)(A), the fact that increases the mandatory minimum (50 grams or more of crack (cocaine base))[ ] must be charged in the indictment and submitted to a jury and found beyond a reasonable doubt." Id. Petitioner states that the Magistrate Judge's "failure to address Petitioner's subject matter jurisdiction question... constitutes a complete concession." Id. at 4. Petitioner is mistaken. Simply stated, Petitioner's indictment argument should be raised in an action pursuant to § 2255. In addition, ...