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Grier v. Thomas

United States District Court, D. South Carolina

May 3, 2016

Tony Andowane Grier, a/k/a Tony Andwoane Grier, Petitioner,
v.
Linda Thomas, F.C.I. Edgefield, Respondent.

          REPORT AND RECOMMENDATION

          Bristow Marchant United States Magistrate Judge.

         The pro se Petitioner, Tony Andowane Grier, brings this application for writ of habeas corpus (Petition) pursuant to 28 U.S.C. § 2241. 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 procedural provisions of the Rules Governing Section 2254 Proceedings in the United States District Court, [1]28 U.S.C. § 2254; 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. 490U.S. 319.324-25 (1989); Haines v. Kemer., 404 U.S. 519(1972); Nasim v. Warden.Md.House of Corr.. 64 F.3d 951 (4th Cir.1995); and Todd v. Baskerville. 712 F.2d 70 (4th Cir.1983).

         Pro se petitions are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. See Hughes v. Rowe. 449 U.S. 5, 9 (1980); Cruz v. Beta, 405 U.S. 319 (1972); Fine v. City of New York. 529 F.2d 70, 74 (2d Cir. 1975). However, even when considered under this less stringent standard, for the reasons set forth here in below the petition submitted in the instant case is subject to summary dismissal. The requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. See Weller v. Dep't of Soc. Serve.. 901 F.2d 387 (4th Cir. 1990).

         Discussion

         Petitioner, an inmate at FCI-Edgefield, asserts that he was "sentence[d] under the Residual Clause that the Supreme Court ruled vague and unconstitutional." Petition, ECF No. 1 at 6. He states that he was charged in the Western District of North Carolina with possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g); pled guilty "to Count 1, that Count 2 would be dismissed"; and was sentenced (on November 20, 2007) to 188 months imprisonment. Id. at 1 -2. On December 15, 2008, the Fourth Circuit affirmed Petitioner's sentence. United States v. Grier. 305 F.App'x 78 (4th Cir. 2008). Petitioner checked "No" to the question of whether he had previously filed any petitions, applications or motions with respect to his judgment (other than his direct appeal). ECF No. 1 at 3. However, on January 20, 2016 (after the filing of this Petition), the Honorable Robert J. Conrad, Jr., United States District Judge for the Western District of North Carolina, granted the government's motion for a reduction of Petitioner's sentence (for substantial assistance) pursuant to Fed, R. Crim, P. 35 and reduced Petitioner's sentence to 152 months imprisonment.[2]

         Petitioner argues that in light of Johnson v. United States, 135 S.Ct. 2551 (2015)[declaring the residual clause in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), unconstitutionally vague], that prior convictions used to enhance a defendant's sentence under the ACCA or as a Career Offender[3] under the United States Sentencing Guidelines (USSG) are unconstitutional. The Supreme Court recently held that the Johnson decision announced a substantive rule that applies retroactively to cases on collateral review. Welch v. United States, 136 S.Ct, 1257 (2016); see ajso In Re Robinson. ___ F.3d ___, No. 16-11304, 2016 WL 1583616, at *l (11th Cir. Apr. 19, 2016). He also asserts that this Fifth and Sixth Amendment rights were violated. ECF No, 1 at 6; Memorandum in Support of Petition, ECF No. 1-1 at 3-11.

         This petition is subject to dismissal because it is "well established that defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through [28 U.S.C] § 2255, " not through a petition filed pursuant to § 2241. 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 provides:

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).

         The Fourth Circuit has announced a three-part test to determine whether a petition challenging the lawfulness of a conviction or sentence can be brought under § 2241:

Section 2255 is inadequate and ineffective to test the legality of a conviction when: (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.

In re Jones. 226 F.3d 328, 333-34 (4th Cir. 2000). This test was formulated expressly to provide a remedy for the "fundamental defect presented by a situation in which an individual is incarcerated for conduct that is not criminal but, through no fault of his own, he has no source of redress." Id. at 333 n. 3. In this case, however, there is no plausible allegation that the savings clause permits Petitioner to bring his claims under § 2241.

         First, it appears that Petitioner has not even filed a § 2255 action with the sentencing court to permit it to review his claims for relief. Courts require a prisoner in federal custody to first proceed with a § 2255 motion before attempting to satisfy the "savings clause." See Hernandez v. Drew. 371 F.App'x 991, 993 (11th Cir. Apr. 7, 2010)[noting that a prisoner may not circumvent the requirements for filing a § 2255 motion merely by filing a § 2241 petition.]; Dinkins v. Thomas, No. 8:15-49Q-RMG. 2015 WL 1877434. at *4 (D.S.C. April 23. 2015); Hackett v. Atkinson. No. 9:13-1274-JFA-BM, 2013 WL 3972393, at *3 (D.S.C. July 31, 2013). Further, Petitioner cannot meet the second prong of In re Jones (that subsequent to his appeal and first § 2255 motion the substantive law changed such that the conduct of which he was convicted is deemed not to be criminal) because he has not alleged (or shown) that he has even filed a first § 2255 motion. Accordingly, Petitioner cannot demonstrate that relief under § 2255 is "inadequate or ineffective."[4]

         However, rather than dismiss this case, the undersigned finds it in the interest of justice to recharacterize this § 2241 habeas petition as a motion to vacate, set aside, or correct Petitioner's sentence pursuant to 28 U.S.C. § 2255. See Castro v. United States, 540 U.S. 375, 381 (2003) ["Federal courts sometimes will ignore the legal label that a pro se litigant attaches to a motion and recharacterize the motion in order to place it within a different legal category .... to avoid an unnecessary dismissal...."]. Because the AEDPA's one-year statute of limitations in 28 U.S.C. § 2255(f)[5] may be an issue in this case, it is appropriate to recharacterize the Petition rather than dismiss it without prejudice because of the proximity of the running of the one-year time clock.[6]To the extent that Johnson applies to the Petitioner, [7] it appears that the one-year period statute of limitations began on June 26, 2015, when the Supreme Court decided Johnson. ...


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