United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
KAYMANI D. WEST, Magistrate Judge.
A Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 was submitted to the court by a federal prisoner appearing pro se. Pursuant to 28 U.S.C. §636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court. See 28 U.S.C. §§ 1915(e), 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).
I. Factual and Procedural Background
William Brown ("Petitioner") is a federal prisoner currently incarcerated at FCI-Estill and serving a statutory mandatory-minimum life sentence for numerous drug (crack cocaine) possession-, manufacture-, and distribution-related convictions entered on a jury verdict in the Eastern District of Kentucky ("the sentencing court") in January 2007. ECF No. 1-8, at 2 (Suppl. Pet.); see United States v. Brown, No. 2:05-cr-00087-DLB (E.D. Ky.); see also 21 U.S.C. § 841(b)(1) (providing for mandatory-minimum sentences up to life in prison for certain drugrelated convictions against a person with prior felony drug convictions). His convictions and sentences were affirmed by the Sixth Circuit, United States v. Brown, 272 F.App'x 465 (6th Cir.), cert. denied, 128 S.Ct. 2981 (2008), and his initial § 2255 motion was finally denied by the sentencing court on March 9, 2011, United States v. Brown, No. 2:05-cr-00087-DLB (ECF No. 305). On August 3, 2011, the Sixth Circuit dismissed his appeal from the denial of his initial § 2255 motion because his notice of appeal was filed too late. Brown v. United States, No. 11-5293 (6th Cir. 2011). The records of the Sixth Circuit Court of Appeals indicate that Petitioner requested authorization pursuant to 28 U.S.C. § 2244 to file a second or successive § 2255 motion on June 19, 2012. In re Brown, No. 12-5690 (6th Cir.) (ECF No. 1). The successive motion included, among other contentions of ineffective assistance of counsel, allegations that, in light of the then-recent United States Supreme Court case of Depierre v. United States, 131 S.Ct. 2225, 180 L.Ed.2d 114 (2011) (addressing statutory sentencing distinctions between crack and powder cocaine), Petitioner's constitutional rights were violated when he was convicted and sentenced for an un-charged crack-cocaine-related offense. In re Brown, No. 12-5690 (6th Cir.) (ECF No. 6). Finding that the cases Petitioner relied on "did not involve new rules of constitutional law made retroactive to cases on collateral review, " the Sixth Circuit denied the requested authorization on September 19, 2013. In re Brown, No. 12-5690 (6th Cir.) (ECF No. 35-2). Petitioner submitted the § 2241 Petition now under review to his institutional mailroom on January 9, 2015,  and asks this court to "apply" Persaud v. United States, 134 S.Ct. 1023 (2014) and to vacate his current sentence and resentence him without a mandatory-minimum sentence or order him released from custody. ECF Nos. 1 at 1; 1-8 at 9.
II. Standard of Review
Under established local procedure in this judicial district, a careful review was made of the pro se Petition filed in this case. The review was conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915, 1915A, and 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); Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979).
This court is required to construe pro se petitions liberally. Such 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 district 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. De'Lonta v. Angelone, 330 F.3d 630, 630 n.1 (4th Cir. 2003). 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, 391 (4th Cir. 1990).
Furthermore, this court is charged with screening Petitioner's lawsuit to determine if "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4 of Rules Governing Section 2254 Cases in the United States District Courts; see Rule 1(b) of Rules Governing Section 2254 Cases in the United States District Courts (a district court may apply these rules to a habeas corpus petition not filed pursuant to § 2254). Following the required initial review, it is recommended that the Petition submitted in this case should be summarily dismissed.
Petitioner submits this § 2241 Petition to this court and argues that the § 2255 remedy is inadequate and ineffective because "the Supreme Court's holding in [HARRIS]" was allegedly caused to "fall" by a subsequent unnamed case decided after the conclusion of his direct appeal and initial § 2255 motion. ECF No. 1-8 at 4; see also ECF No. 1, at 4. According to Petitioner, the subsequent case changed the previously applicable law as stated in "Harris, " by holding that, to protect the accused's Sixth Amendment rights, a jury must decide all of "the essential elements of the aggravated crimes, " including "individualized drug amount." ECF No. 1-8 at 4-5; see also ECF No. 1 at 2. Petitioner does not provide a citation for "Harris" or a name or citation for the subsequent case that allegedly changed the law, but he contends that, as a result of the issuance of that case since the conclusion of his initial § 2255 motion, his enhanced sentence is manifestly unjust. ECF Nos. 1, at 3-5; 1-8, at 8-9. Petitioner contends that his life sentence should be vacated because it is based on facts that were not included in the indictment against him or determined by a jury. Id. Petitioner refers to " Persaud (2014)" and liberally paraphrases from the United States Solicitor General's Supreme Court brief, without citations, for his contentions that this court should exercise its subject-matter jurisdiction pursuant to 28 U.S.C. § 2241 to determine that the sentencing court's imposition of a mandatory minimum life sentence in 2007 is now manifestly unjust because Congress did not provide for such sentences without the required grand-jury charge and jury findings of applicable facts. ECF No. 1 at 6; see ECF No. 1-8 at 8. Petitioner finally asserts that his sentence should be vacated because the sentencing court violated his constitutional rights by improperly choosing the harshest penalty available under 21 U.S.C. § 841 to "create" a mandatory minimum life sentence that was not authorized by Congress where the facts supporting that sentence were not charged by indictment or determined beyond a reasonable doubt by a jury. ECF Nos. 1 at 9-10; 1-6 at 8-9.
In this § 2241 Petition, Petitioner is attacking the validity of at least some of his convictions and his life sentence. These are the type of claims that should normally be brought under 28 U.S.C. § 2255 unless Petitioner can satisfy the savings clause of § 2255. "As a threshold matter, it is well established that defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255." See Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citing In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997)); San-Miguel v. Dove, 291 F.3d 257, 260-61 (4th Cir. 2002). The § 2255 savings clause states as follows:
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). It is settled law in this Circuit that the fact that relief has become unavailable under § 2255 because of the prohibition against successive petitions does not demonstrate that the § 2255 remedy is inadequate or ineffective. In re Vial, 115 F.3d at 194 n.5. Under existing precedent in this Circuit, for a § 2255 motion to be inadequate or ineffective to test the legality of continued detention because of changes in the law after a conviction becomes final, a petitioner must satisfy the test provided in In re Jones, 226 F.3d 328 (4th Cir. 2000). The In re Jones test requires that (1) at the time of the 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. Id. at 333-34. Specifically, the second element of the test requires that "substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal." Id. at 334 (emphasis added). This statement has been extended to include sentencing decisions made pursuant to the Armed Career Criminal Act, United States v. Pettiford, 612 F.3d 270, 284 (4th Cir. 2010) (holding that "actual innocence applies in the context of habitual offender provisions only where the challenge to eligibility stems from factual innocence of the predicate crimes, and not from the legal classification of the predicate crimes."); Farrow v. Revell, 541 F.App'x 327, 328 (4th Cir. 2013); Darden v. Stephens, 426 F.App'x 173, 174 (4th Cir. 2011), or under 21 U.S.C. § 841. United States v. Poole, 531 F.3d at 267 n.7 (4th Cir. 2008) ("Fourth Circuit precedent has likewise not extended the reach of the savings clause to those petitioners challenging only their sentence.") (citing In re Jones, 226 F.3d at 333-34)); see Newborn v. Apker, No. 5:13-HC-2176-FL, 2014 WL 2589418 (E.D. N.C. June 10, 2014) (collecting cases), aff'd, 585 F.App'x 191 (4th Cir. 2014); Wall v. Owens, No. 2:10-3205-CMC-RSC, 2011 WL 704729 (Jan. 31, 2011), report adopted, 2011 WL 703676 (D.S.C. Feb. 22, 2011), aff'd, 438 F.App'x 224 (4th Cir. 2011). Petitioner does not specifically discuss the Jones test in either his Petition or Supplemental Petition, but, even if he had, his allegations show that he cannot satisfy all the elements of this test insofar as his challenges to his convictions or sentence are concerned.
Petitioner's allegations about an insufficiently identified case named "Harris" and an unidentified subsequently decided case that allegedly caused "Harris" to "fall" do not show that the § 2255 remedy is inadequate or ineffective in his case, especially where there is no showing that Petitioner cited to "Harris" or argued its "fall" as a basis for his unsuccessful 2012 request to the Sixth Circuit for authorization for a successive § 2255 motion. Moreover, Petitioner's allegations about the manner in which the sentencing court arrived at his convictions and sentences do not satisfy the Fourth Circuit's standards for a viable "actual innocence" claim as contemplated in the §§ 2241, 2255 contexts because he provides no allegations of new evidence, unavailable at the time of the convictions, which undermines the validity of his 2007 federal criminal convictions for drug-related charges. See Schlup v. Delo, 513 U.S. 298, 324 (1995). The type of "actual innocence" that might require the court to consider a claim under § 2241 is factual innocence of the crime of conviction, not legal innocence of the requirements for statutory ...