Rivers v. Warden, FCI-Edgefield

          REPORT AND RECOMMENDATION

          Thomas E. Rogers, III United States Magistrate Judge

         Petitioner is a federal prisoner in custody in South Carolina at FCI Edgefield. Petitioner was sentenced by the U.S. District Court, Southern District of Florida. He is seeking habeas relief under § 2241 and proceeding in this action pro se. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court.

         STANDARD OF REVIEW

         Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings pursuant to the procedural provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted 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, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, the petition is subject to summary dismissal.

         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. Following the required initial review, it is recommended that the Petition submitted in this case should be dismissed.

         DISCUSSION

         Petitioner was convicted in 2007 for conspiring to possess with intent to distribute. (ECF No. 1 at 3). Petitioner argues two grounds which are very similar. Petitioner argues he is innocent of count two of the indictment because the indictment stated cocaine and marijuana, while the jury instruction stated cocaine or marijuana. Petitioner contends the court illegally amended his indictment. The statutory charge itself only requires any controlled substance, not two controlled substances and does not particularly require cocaine and marijuana. The jury verdict was not guilty as to marijuana as to count two. The Eleventh Circuit affirmed Petitioner's conviction and specifically addressed the change in “and” to “or.” U.S. v. Nelson, Jackson, Rivers, Jones, 321 Fed.Appx. 904, 907 (11th Cir. Mar. 25, 2009)(table unpublished). Plaintiff has previously filed a § 2255 Motion, which was denied by the sentencing district court and affirmed by the Eleventh Circuit. See No. 10-618535-CIV Docket, Order dated September 28, 2012 (S.D. Fl.).

         The instant Petition, filed pursuant to 28 U.S.C. § 2241, is subject to summary dismissal because “it 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)). Petitioner cannot challenge his federal conviction and sentence under § 2241, unless he can satisfy the § 2255 savings clause, which states:

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); In other words, as applied here, Petitioner's § 2241 action is barred unless he can demonstrate that the relief available to him under § 2255 is inadequate or ineffective. Petitioner was unsuccessful in seeking relief under § 2255 in his petitions in the sentencing court. However, “the remedy afforded by § 2255 is not rendered inadequate or ineffective merely because an individual has been unable to obtain relief under that provision, or because an individual is procedurally barred from filing a § 2255 motion.” See In re Vial, 115 F.3d at 1194 n.5 (citations omitted).

         Petitioner fails to satisfy criteria set forth by the Fourth Circuit to determine whether a § 2255 motion would be inadequate or ineffective to test the legality of a prisoner's detention. In In re Jones, 226 F.3d 328 (4th Cir. 2000), the court held that a petitioner must show:

(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.

Id. at 333-34.

         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 ...