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Ewing v. Warden of FCI-Edgefield

United States District Court, D. South Carolina

May 10, 2016

KALONJI SKOU EWING, Petitioner,
v.
WARDEN OF FCI-EDGEFIELD, Respondent.

          REPORT AND RECOMMENDATION

          BRISTOW MARCHANT, Magistrate Judge.

         This action was filed by the Petitioner, pro se, pursuant to 28 U.S.C. § 2241. Petitioner, a federal prisoner serving his sentence at the Federal Correctional Institution (FCI) located in Edgefield, South Carolina, asserts that he was wrongly sentenced as a career offender.

         The Respondent filed a Response in Opposition to the Petition and a Motion to Dismiss on October 26, 2015. As the Petitioner is proceeding pro se, a Roseboro order was entered by the Court on October 27, 2015, advising Petitioner of the importance of a dispositive motion and of the need for him to file an adequate response. Petitioner was specifically advised that if he failed to provide an adequate response, his Petition could be dismissed. The Petitioner thereafter filed a response in opposition to Respondent's motion on November 17, 2015.

         This matter is now before the Court for disposition.[1]

         Background

         In May 2009, Petitioner was indicted for, among other things, conspiracy to distribute and possession with intent to distribute more than fifty (50) grams of cocaine base [Eastern District of North Carolina Docket Criminal Action No. 5:09-cr-151-FL-1 (E.D. N.C. ), Docket Entry 1]; see also Attachment to Petition, p. 2. On October 6, 2009, Petitioner pled guilty pursuant to a written plea agreement to conspiracy to distribute and possession with intent to distribute more than fifty (50) grams of cocaine base, as charged in Count One of the Indictment. See Eastern District of North Carolina Docket Criminal Action No. 5:09-cr-151-FL-1 (E.D. N.C. ), Docket Entries 23-25. [2] Petitioner's plea agreement contained the following waiver:

[T]o waive knowingly and expressly all rights... to appeal whatever sentence is imposed, ... and further to waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to§ 2255, excepting an appeal or motion based upon grounds of ineffective assistance of counsel or prosecutorial misconduct not known to the Defendant at the time of the Defendant's guilty plea.

         See Eastern District of North Carolina Docket Criminal Action No. 5:09-cr-151-FL-1 (E.D. N.C. ), Docket Entry 25, ¶ 2(c).

         After Petitioner entered his guilty plea, a Presentence Investigation Report ("PSR") was prepared by the United States Probation Office, in which Petitioner was declared to be a Career Offender with an advisory guideline range of 262 to 327 months. PSR, ¶¶ 57-, 62. The statutory range on Count One was a minimum of 120 months and a maximum of life. PSR, ¶ 61. The government moved for a downward departure based on substantial assistance, and at sentencing on May 11, 2010, the Court granted the government's motion for downward departure and imposed a sentence of 228 months. See Eastern District of North Carolina Docket Criminal Action No. 5:09-cr-151-FL-1 (E.D. N.C. ), Docket Entries 34-35[3]; see also Attachment to Petition, p. 3. Judgment was entered on May 11, 2010. See Eastern District of North Carolina Docket Criminal Action No. 5:09cr-151-FL-1 (E.D. N.C. ), Docket Entry 35.

         Petitioner did not pursue a direct appeal. However, on June 20, 2012, Petitioner filed a motion under 28 U.S.C. § 2255 in the United States District Court for the Eastern District of North Carolina, asserting that, based on United States v. Simmons, 649 F.3d 237 (4th Cir. 2011)(en banc), he should not have been classified as a career offender, and that his advisory guideline range was therefore calculated incorrectly.[4] The government moved to dismiss the motion based on the waiver contained in the plea agreement. See Eastern District of North Carolina Docket Criminal Action No. 5:09-cr-151-FL-1 (E.D. N.C. ), Docket Entry 45. On April 3, 2013, the United States District Court for the Eastern District of North Carolina dismissed the motion because Petitioner had waived his right to challenge his sentence in post-conviction proceedings. See Eastern District of North Carolina Docket Criminal Action No. 5:09-cr-151-FL-1 (E.D. N.C. ), Docket Entry 47. Petitioner filed a notice of appeal; see Eastern District of North Carolina Docket Criminal Action No. 5:09-cr-151-FL-1 (E.D. N.C. ), Docket Entry 49; and on September 4, 2013, the Fourth Circuit dismissed Petitioner's appeal of the district court's dismissal of his § 2255 motion. See United States v. Ewing, 539 Fed.Appx. 168 (4th Cir. 2013).

         On December 2, 2013, Petitioner attempted to again challenge his career offender designation in light of Simmons in a motion filed pursuant to 28 U.S.C. § 1651. See Eastern District of North Carolina Docket Criminal Action No. 5:09-cr-151-FL-1 (E.D. N.C. ), Docket Entry 56. On December 17, 2013, the district court summarily denied that motion. See Eastern District of North Carolina Docket Criminal Action No. 5:09-cr-151-FL-1 (E.D. N.C. ), Docket Entry 58.

         Petitioner then filed the instant petition dated March 2, 2015, this time asserting his claim pursuant to § 2241 and naming the Warden of FCI Edgefield in the District of South Carolina (where Petitioner is housed) as the respondent. Ewing v. Warden, No. 9:15-1065-PMD-BM, Court Docket No. 1. In this § 2241 petition, Petitioner initially again sought relief based on Simmons arguments similar to those made to the North Carolina District Court in his § 2255 petition. See Petition. However, on August 3, 2015, Petitioner filed a document asserting that he was now entitled to relief pursuant to the holding in Johnson v. United States, 135 S.Ct. 2551 (2015).[5] Petitioner also filed a status inquiry on April 22, 2016, noting the Supreme Court's decision in Welch v. United States, No. 15-6418, 2016 WL 1551144, at * 11 (S.Ct. Apr. 18, 2016), which held that the holding in Johnson was to be applied retroactively to cases on collateral review.

         Although Petitioner was not sentenced under the ACCA, but was instead sentenced under the "career offender" residual clause of Guidelines §§ 4B1.1 and 4B1.2, he seeks to apply the Johnson holding to his designation as a "career offender". See United States v. Travis, No. 14-104, 2016 WL 843281 at * 4 (E.D. N.C. Mar. 1, 2016)["Johnson's effect on the identically-worded provision of the career offender enhancement, U.S.S.G. § 4B1.2(a)(2), is an open question in this circuit."]; Barnhart v. Saad, No. 15-99, 2016 WL 347340 at * 4 n. 4 (N.D.W.Va. Jan. 28, 2016)["District courts in the Fourth Circuit have reached divergent ...


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