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Burns v. Joyner

United States District Court, D. South Carolina, Florence Division

August 22, 2018

Clinton Burns III, # 30564-004, Petitioner,
v.
H Joyner, Warden, Respondent.

          REPORT AND RECOMMENDATION

          THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE

         The Petitioner, Clinton Burns, (“Petitioner”), appearing pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241[1] on April 11, 2018.[2]The Respondent filed a motion to dismiss or, in the alternative, a motion for summary judgment along with a return containing supporting memorandum and exhibits. (ECF No. 27). The undersigned issued an order filed July 12, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), advising the Petitioner of the motion and the possible consequences if he failed to respond adequately. (ECF No. 29). Petitioner filed a response on July 23, 2018. (ECF No.32).

         ARGUMENTS

         Petitioner is currently incarcerated at the Federal Correctional Institution Estill in South Carolina. Petitioner is seeking relief pursuant to 28 U.S.C. § 2241. Petitioner was convicted and sentenced in the Southern District of Florida in June 1995 for possession with intent to distribute cocaine base under 21 U.S.C. § 841(a)(1)(262 months to run concurrently) and conspiracy with intent to distribute cocaine base, under 21 U.S.C. § 846(life). Sentence enhancements were sought under 21 U.S.C. § 841 and § 851. (Attribution was 61.4 grams of cocaine base. (95-cr-6031-MGC, S.D. Fl., ECF No. 413)). Petitioner was sentenced to life. The Eleventh Circuit affirmed in November 1997; the United States Supreme Court denied direct appellate review. Petitioner filed a § 2255 motion in October 1998, which was denied in November 1999 and the Eleventh Circuit denied a certificate of appealability.

         Petitioner asserts he meets the four part test announced in Wheeler. Petitioner seeks relief from his allegedly illegal sentence and requests to be resentenced without the use of non-qualifying state convictions. Petitioner asserts the governments' § 851 Notice of enhancement listed:

1- possession of marijuana(85-)
2- possession of cocaine (Petitioner argues the charge was actually tampering with evidence a non-predicate under § 851 enhancement)(90-)
3- delivery of cocaine (Petitioner argues his record has no such conviction) (91-)
4- delivery within 1000 feet of school (Petitioner argues this was a co- defendant's conviction and not his conviction) (91-)
5-possession of cocaine and marijuana (Petitioner argues was not punishable by more than 1 year) (92-)

(ECF No. 1).

         Petitioner argues his sentence should not have been increased due to the misinformation regarding his prior record. Petitioner argues without the use of convictions in 1991 and 1992, his mandatory minimum would be 262 months. Petitioner contends his sentence was issued based on an erroneous mandatory minimum. Plaintiff cites to Wheeler and Simmons cases as support.

         Petitioner attached the government's Notice of Sentencing Enhancements from the 1995 convictions. It states that under 21 U.S.C. § 841 and § 851 and 18 U.S.C. § 3559(c) each of the following offenses qualifies as a predicate offense for statutory enhancement for life: (same five convictions as Petitioner cited, as listed above. ECF No. 1-2 at 2-3). Other attachments show the 90- case number, the second listed conviction for enhancement above, is a count of tampering with physical evidence with probation, then revocation, then 2.5 year sentence. (However, the facts surrounding the conviction and used at sentencing are that he swallowed cocaine). Plaintiff's sentence was enhanced to life under 21 U.S.C. § 851(a)(1) on count 1 for the 1995 conviction. ECF No. 1-2 at 12.

         “[D]efendants 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 ...


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