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Sagoes v. Antonelli

United States District Court, D. South Carolina

March 6, 2018

Anthony Sagoes, Petitioner,
v.
B. M. Antonelli, Respondent.

          REPORT AND RECOMMENDATION

          Kaymani D. West Florence, United States Magistrate Judge

         Petitioner, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2241 for habeas relief.[1] Petitioner is an inmate at FCI-Williamsburg Correctional Institution, a facility of the Federal Bureau of Prisons (“BOP”), and files this action in forma pauperis under 28 U.S.C. § 1915.

         I. Factual and Procedural Background

         On February 3, 2009, a federal grand jury in the Northern District of Georgia indicted Petitioner Anthony Sagoes (“Petitioner”) in a one-count indictment alleging that he unlawfully possessed a firearm after previously having been convicted of felony offenses, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). United States v. Sagoes, No. 1:09-CR-00049-JEC-GGB-1 (N.D.Ga.) (“Criminal Matter”). ECF No. 8 in Criminal Matter. Petitioner was convicted on the indicted charge on August 19, 2009 after a two-day jury trial. ECF No. 49 in Criminal Matter. Petitioner was sentenced to a term of imprisonment of 216 months, to be followed by five years of supervised release. ECF No. 54 in Criminal Matter. On July 27, 2010, the United States Court of Appeals for the Eleventh Circuit affirmed Petitioner's conviction. ECF No. 68 in Criminal Matter; United States v. Sagoes, 389 Fed.Appx. 911 (11th Cir. 2009). The United States Supreme Court denied Petitioner's petition for writ of certiorari on November 29, 2010. Sagoes v. United States, 131 S.Ct. 677 (2010).

         On April 12, 2011, Petitioner filed a “Motion Under 28 U.S.C. § 2255” in the sentencing court. ECF No. 69 in Criminal Matter. In that motion, Petitioner contended that his trial counsel was ineffective by (1) failing to challenge the search warrant that led to the discovery of the firearm that Petitioner was charged with possessing (Grounds One and Two) and failing to effectively cross-examine law enforcement on the support for the search warrant (Ground Six); (2) failing to fully investigate the circumstances of Petitioner's incriminating statements to police (Ground Three); (3) advising Petitioner not to take the witness stand during his suppression hearing (Ground Four); (4) failing to object to the indictment, which listed Petitioner's prior convictions for purposes of establishing that he was a felon at the time he possessed the firearm (Ground Five); (5) failing to properly investigate and cross-examine the law enforcement officer who served as affiant on the search warrant affidavit regarding the officer's “fabricated and nonexistent alleged controlled drugs buys” that served as a basis for probable cause (Ground Six); (6) failing to object at sentencing and on appeal to the sentencing court's reliance on Petitioner's prior drug and burglary convictions as predicate offenses for purposes of establishing Armed Career Criminal status (Grounds Seven, Eight, Ten and Eleven); and (7) failing to require the sentencing court to specify which crimes it was relying on to establish Armed Career Criminal status (Ground Nine). Petitioner also contended that the sentencing court committed constitutional error by (1) failing to dismiss indictment because it listed Petitioner's prior felony convictions (Ground Twelve); (2) failing to specify which prior convictions served as predicate offenses for purposes of establishing Petitioner as an Armed Career Criminal (Ground Thirteen); and (3) refusing to permit defense counsel to admit into evidence impeachment evidence against the affiant on the search warrant issued for Petitioner's residence (Ground Fourteen). The government filed a response. ECF 73 in Criminal Matter. On April 28, 2014, the district court denied the motion. ECF No. 78 in Criminal Matter. On May 5, 2014, Petitioner filed a notice of appeal. ECF No. 80 in Criminal Matter. On April 2, 2015, the Eleventh Circuit dismissed the appeal. ECF No. 89 in Criminal Matter.

         Petitioner has previously pursued a § 2241 Petition in this court, contending that the United States Supreme Court case of Johnson v. United States, 135 S.Ct. 2551 (2015) invalidated the sentence he is serving. Sagoes v. Meeks, No. 5:15-cv-02888-HMH (D.S.C.). That case was filed in the sentencing court on July 17, 2015 and was thereafter transferred to this court. Following consideration of a motion to dismiss filed by the Respondent, that § 2241 Petition was dismissed on June 30, 2016. ECF No. 41 in Criminal Matter. Petitioner filed a second § 2255 motion in the sentencing court in Georgia on June 23, 2016, asserting his claim of sentence invalidity under Johnson. ECF No. 92 in Criminal Matter. On November 16, 2017, that motion was denied upon a holding that Petitioner's claim that Georgia's burglary offense was not a proper predicate crime under the Armed Career Criminal Act (“ACCA”) was foreclosed by Eleventh Circuit precedent. ECF Nos. 106, 107 in Criminal Matter.

         The § 2241 Petition now under review was submitted to this court on January 6, 2018. ECF No. 1-2. Petitioner now contends that he is “innocent of the ACCA statutory enhancement” because improper prior convictions were used to support the enhancement and because the jury did not render a unanimous verdict on the § 924(e) gun enhancement as the indictment charged both § 922(g) and § 924(e) in the same count. ECF No. 1 at 6-7. He alleges that the § 2255 remedy is inadequate and ineffective because “claim may not be newly discovered evidence and does not rely upon new constitutional rule.” Id. at 5. Petitioner does not allege anywhere in his pleading that there is any new evidence not available to him previously that now indicates that he is innocent of being a felon in possession of a firearm. Instead, his claim is innocence of the enhanced sentence he received due to the use of allegedly improper predicate offenses to support the sentence. Additionally, he makes an indictment-related legal argument directed to the underlying validity of his conviction.

         II. Standard of Review

         Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in this case. The review was conducted pursuant to the procedural provisions of the Rules Governing Habeas Corpus Cases Under Section 2254 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, Maryland House of Correction, 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, see 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. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, however, the Petition submitted in this case is subject to summary dismissal. 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. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

         III. Discussion

         Petitioner's claim that he is actually innocent of the enhanced sentence he received does not require this court to consider the merits of his Petition. Petitioner's claim that his predicate state convictions were improperly considered in an ACCA enhancement should have been raised through direct appeal or by way of a § 2255 motion to vacate. The actual state guilty-plea records were available to everyone at the time of the federal sentencing and, if one of the convictions used to support enhancement did not qualify under the ACCA, that issue should have been raised on direct appeal. If not raised on direct appeal, it might have been raised as an ineffective counsel argument under § 2255. In fact, the records of the Northern District of Georgia show that Petitioner did previously raise issues relating to the predicate-conviction support for his sentence at least twice in the sentencing court and once before the Eleventh Circuit in his direct appeal. He also previously raised his indictment-related claim in the sentencing court in connection with his initial § 2255 motion. To date, he has been unsuccessful in his attempts to overturn his sentence with such arguments. See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (federal courts may take judicial notice of proceedings in other courts if those proceedings have a direct relation to matters at issue); see also St. Louis Baptist Temple, Inc. v. FDIC., 605 F.2d 1169, 1172 (10th Cir. 1979) (same); United States ex rel. Geisler v. Walters, 510 F.2d 887 (3d Cir. 1975) (same); Rhodes v. Houston, 309 F.2d 959 (8th Cir. 1963) (same).

         Here, the facial inadequacy of the Petition now under consideration requires this court to “decline to address whether [Petitioner's] claim of ‘actual innocence' allows [him] to bypass the gatekeeping requirements of the amended § 2255 and proceed with a § 2241 habeas corpus petition via § 2255's savings clause.” United States v. Lurie, 207 F.3d 1075, 1077 n.4 (8th Cir. 2000). Cognizable claims of actual innocence are extremely rare and must be based on “factual innocence not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998); see also Doe v. Menefee, 391 F.3d 147 (2d Cir. 2004). Prisoners such as Petitioner often assert actual innocence rather than, or in addition to, inadequacy and ineffectiveness of remedy in situations like the present, i.e., where the time limitations for filing an initial § 2255 motion have run, where there previous motions were unsuccessful, and where they wish to raise additional claims that were not raised in direct appeals or in any § 2255 motions they did file. In such cases, there is some authority for the proposition that if the petitioner cannot establish cause and prejudice for his or her failure to raise the issues previously, he or she can still possibly obtain review of his or her additional constitutional claims by showing that his or her case “falls within a narrow class of cases implicating a fundamental miscarriage of justice. Proving ‘actual innocence' is a way to demonstrate that one's case falls within that narrow class.” Cornell v. Nix, 119 F.3d 1329, 1333 (8th Cir. 1997).

         In the present case, Petitioner's actual-innocence claim is facially inadequate to require consideration because Petitioner does not allege that there is any new, reliable evidence of any type that was not presented in any of his prior court proceedings that supports his innocence of the federal criminal charge on which he was convicted. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (to present a credible claim of actual innocence, petitioner must “support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.”); Doe v. Menefee, 391 F.3d at 161 (quoting Schlup for the evidentiary standard required for a court to consider an actual innocence claim); Thompson v. United States, 211 F.3d 1270 (6th Cir. 2000) (bare allegations of actual innocence as to the charge to which the petitioner pleaded guilty are not facially adequate to invoke exceptional review of a conviction under § 2241). Additionally, there are no allegations to the effect that Petitioner was actually innocent (i.e., did not ...


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