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Wilkerson v. Warden Williamsburg Federal Correctional Institution

United States District Court, D. South Carolina

September 24, 2018

Robert Moses Wilkerson, Petitioner,
v.
Warden Williamsburg Federal Correctional Institution, Respondent.[1]

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Respondent's motion to dismiss or, in the alternative, motion for summary judgment. [S.C. Doc. 17.] Petitioner is a federal prisoner, proceeding pro se, who seeks relief under 28 U.S.C. § 2241. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review the instant habeas Petition and submit findings and recommendations to the District Court.

         Petitioner filed this Petition for writ of habeas corpus on March 12, 2018.[2] [S.C. Doc. 1.] On June 14, 2018, Respondent filed a return and memorandum [S.C. Doc. 16] and a motion to dismiss the Petition or, alternatively, for summary judgment [S.C. Doc. 17]. On June 20, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Petitioner was advised to respond to the motion and of the possible consequences if he failed to adequately respond. [S.C. Doc. 19.] Petitioner filed a “Memorandum of Law in Support” of his Petition on June 27, 2018. [S.C. Doc. 21 (signed by Petitioner on June 27, 2018).] Petitioner also filed a response to Respondent's motion on July 25, 2018.[3] [S.C. Docs. 23; 23-3 at 2 (envelope stamped by correctional institution on July 25, 2018).] Accordingly, Respondent's motion is ripe for review.

         Having carefully considered the parties' submissions and the record in this case, the Court recommends that Respondent's motion be granted and Petitioner's Petition be dismissed.

         BACKGROUND

         Underlying Conviction, Appeal, and Previous Collateral Attack

         Petitioner was indicted in 1996 for, among other offenses, one count of conspiracy to distribute and possess with intent to distribute crack cocaine in violation of 21 U.S.C. § 846, and three counts of using or carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). [ N.C. Doc. 3.] Following a jury trial, Petitioner was convicted of those four counts. [ N.C. Doc. 102.] He was sentenced to life imprisonment on the conspiracy count, and to consecutive sentences of 60, 240, and 240 months on the three weapons offenses. [Id.]

         Petitioner unsuccessfully appealed his convictions and sentence, United States v. Wilkerson, No. 97-4720, 1999 WL 104596, at *1 (4th Cir. Mar. 2, 1999), and the Supreme Court denied certiorari, United States v. Wilkerson, 528 U.S. 927 (1999).

         On December 13, 2005, Petitioner filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, relying on the Supreme Court's then-recent decision in United States v. Booker, 543 U.S. 220 (2005). [ N.C. Doc. 144.] On the government's motion, the district court dismissed the § 2255 motion as untimely, concluding that Booker was not applicable to Petitioner's case because his conviction became final before Booker was issued. Wilkerson v. United States, No. 5:96-cr-167-1H, 2006 WL 8436618, at *1 (E.D. N.C. May 15, 2006). Wilkerson did not appeal.

         Petitioner then filed a 28 U.S.C. § 2241 petition in 2016 in the District of South Carolina. The district court summarily dismissed the petition, ruling that § 2255's savings clause was not satisfied. Wilkerson v. Warden of FCI Williamsburg, No. 8:16-2303-TMC, 2016 WL 4761618 (D.S.C. Sept. 13, 2016).

         Now Petitioner has filed another § 2241 Petition. [S.C. Doc. 1.] He alleges several grounds for relief. He complains generally that his sentence is “severely harsh and unjust, ” and that he “was severely sentenced due to his choosing to go to jury trial.” [S.C. Doc. 1-3 at 8-9.].

         Petitioner also claims that the life sentence that he received for his conspiracy conviction was based on the district court judge's own factual finding that Petitioner committed a murder as part of his relevant conduct of the offenses for which he was being sentenced. He argues that using the murder finding to determine his guideline range was improper for two reasons: (1) he was never indicted for the murder by a federal grand jury or found guilty of the murder beyond a reasonable doubt by a federal petit jury, as he maintains would be required by Alleyne v. United States, 570 U.S. 99 (2013), and (2) he had been found not guilty of the murder in question in a prior trial in North Carolina state court. [S.C. Doc. 1 at 1-10.].

         Petitioner further maintains that his sentence is erroneous in light of the recently issued decision in Dean v. United States, 137 S.Ct. 1170 (2017), wherein the Supreme Court held that a sentencing court is free, in determining the sentence to impose for a predicate count, to consider the mandatory minimum sentences that the defendant will receive for his § 924(c) offenses. [S.C. Doc. 1 at 1-6.]

         APPLICABL ...


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