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Simmons v. Antonelli

United States District Court, D. South Carolina

September 28, 2018

Jotham R. Simmons, Petitioner,
v.
Warden Antonelli, Respondent.

          REPORT AND RECOMMENDATION

          KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE

         Jotham R. Simmons (“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, a facility of the Federal Bureau of Prisons, and files this action in forma pauperis under 28 U.S.C. § 1915.

         I. Factual and Procedural Background

         On May 24, 2013, Petitioner pleaded guilty in this court to one count of possession of a firearm and ammunition by a convicted felon in violation of 18 U.S.C. § 922(g) and one count of possession of a short-barreled shotgun in furtherance of a drug trafficking crime violation of 18 U.S.C. § 924. ECF No. 46 in United States v. Simmons, No. 4:12-cr-00910-RBH-1 (“Criminal Matter”). On December 19, 2013, he was sentenced to a total term of imprisonment of 138 months (18 months as to the felon-in-possession count and a consecutive 120-month sentence on the short-barreled-shotgun charge). ECF No. 61 in Criminal Matter. Petitioner did not appeal his conviction and sentence. On December 29, 2014, Petitioner filed a pro se Motion to Vacate under 28 U.S.C. § 2255. ECF No. 69 in Criminal Matter. Petitioner voluntarily withdrew his Motion on January 5, 2015, before any decision on the Motion. ECF No. 77 in Criminal Matter. Petitioner then filed another § 2255 Motion on February 28, 2017 in which he relied on Bailey v. United States, 516 U.S. 137 (1995), and argued that the evidence was insufficient to show that he “used” or “carried” a firearm in connection with a drug crime. He sought vacation and re-sentencing without the § 924(c)(1) enhancement. ECF No. 90 in Criminal Matter. The sentencing judge dismissed the Motion with prejudice for untimeliness on August 14, 2017. In the same Order, the sentencing judge also denied several other Motions that Plaintiff had filed to challenge the factual basis of his § 924 conviction. ECF Nos. 116, 117 in Criminal Matter. The Fourth Circuit Court of Appeals (“Fourth Circuit”) dismissed Petitioner's appeal and denied his request for authorization to file a successive petition on November 28, 2017 and January 25, 2018 respectively. ECF Nos. 129, 132 in Criminal Matter. The sentencing judge also denied a Motion for Relief under Federal Rule of Civil Procedure 60(d)(3) on April 5, 2018, and the Fourth Circuit dismissed Petitioner's appeal of that Order on July 24, 2018. ECF No. 146 in Criminal Matter.

         The § 2241Petition now under review was submitted to Petitioner's institutional mailroom on June 27, 2018. ECF No. 1-2. Petitioner cites Wheeler v. United States, 886 F.3d 415, 428 (4th Cir. 2018), and asserts that he relies on Bousley v. United States, 523 U.S. 614 (1998) and In re Jones, 226 F.3d 328, 329 (4th Cir. 2000), for the proposition that he is “actually innocent” of his § 922(g) conviction because an incorrect predicate crime was used as a basis for his conviction. Petitioner contends that he was not convicted of the violent crime of “assault and battery of a high and aggravated nature, ” but was, instead, convicted only of the misdemeanor of “aggravated assault and battery of a high nature” and “was sentenced to only sixty days . . . .” ECF No. 1 at 8; see Id. at 5-8. Petitioner does not allege that this information is newly discovered or that any legal opinion decided after the time allowed for his direct appeal[2] and initial § 2255 motion changed the status of the predicate offense used to support his § 922(g) conviction or the sentence he received. Moreover, Petitioner does not allege that any subsequently decided case made the conduct of which he was convicted no longer criminal. Instead, Petitioner asserts that information in the October 22, 2012 arrest warrants showing that he was previously convicted of “a violent crime as define[d] in S.C. Code of Law 16-1-60 (Assault and Battery of a High and Aggravated Nature)” was incorrect. ECF No. 8; see ECF No. 1-1 (copies of warrants). Petitioner does not attach any type of documentation or other evidence in support of his claim that he was only previously convicted of a misdemeanor. He alleges that the § 2255 remedy is inadequate and ineffective to test the legality of his confinement because he is “actual innocent” and “[t]he sentence/conviction now presents an error sufficiently grave to be deemed a fundamental defect.” ECF No. 1 at 5. He asks this court to vacate his § 922(g) conviction and expunge it from his criminal record. Id. at 9.

         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

         Generally, a § 2241 habeas petition “‘attacks the execution of a sentence rather than its validity,' whereas a § 2255 motion ‘attacks the legality of detention.'” Brown v. Rivera, No. 9:08-CV-3177-PMD-BM, 2009 WL 960212, at *2 (D.S.C. April 7, 2009) (citation omitted). Here, Petitioner's allegations show that he is attacking the validity of his conviction. This type of claim should usually be brought under § 2255. Rice v. Rivera, 617 F.3d 802 (4th Cir. 2010). However, § 2255 contains a savings clause which permits a district court to consider a § 2241 petition challenging the validity of a petitioner's detention when a § 2255 petition is inadequate or ineffective to test the legality of his detention. Id. The savings clause 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). In other words, as applied here, Petitioner's § 2241 Petition is barred unless he can demonstrate that the relief available to him under § 2255 is inadequate or ineffective.

         To trigger the “savings clause” of § 2255(e) and now proceed under § 2241, Petitioner must show that something more should be considered by the court than that authorized by § 2255, such as a retroactive change in the law as contemplated in United States v. Wheeler, 886 F.3d at 428 (challenges to sentences) or In re Jones, 226 F.3d 328 (challenges to convictions). In In re Jones, the Fourth Circuit held that challenges to the underlying validity of a federal criminal conviction are not properly considered under § 2241 unless the petitioner can come within the § 2255 savings clause by showing that this is an exceptional case where § 2255 is neither an adequate nor effective remedy for those issues. With regard to the application of the § 2255 savings clause to § 2241 petitions, it is settled in this circuit that the possibility that a second § 2255 motion filed by Petitioner in the sentencing court might be found untimely or successive does not render the § 2255 remedy inadequate or ineffective. See In Re Vial, 115 F.3d at 1194 n.5; see also Jiminian v. Nash, 245 F.3d 144, 147-48 (2d Cir. 2001) (collecting cases). To trigger the savings clause of § 2255(e) and proceed under § 2241, Petitioner must show that something more and different should be considered by the court than that authorized by § 2255, such as a retroactive change in the law that was applied to his conviction or sentence by the sentencing court as contemplated in In re Jones, 226 F.3d 328.

         The In re Jones court held that a ...


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