United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
GORDON BAKER UNITED STATES MAGISTRATE JUDGE
proceeding pro se, has filed a petition for habeas
corpus pursuant to 28 U.S.C. § 2241, challenging his
360-months imprisonment, which was imposed in 1995 in the
District of Maryland. (Dkt. No. 1 at 2.) Respondent filed a
Motion to Dismiss (Dkt. No. 18), and Petitioner responded on
August 27, 2018. (Dkt. No. 22.) Pursuant to the provisions of
28 U.S.C. §636(b)(1)(B), and Local Rule 73.02(B)(2)
(D.S.C.), the assigned United States Magistrate Judge is
authorized to review the petition and submit findings and
recommendations to the United States District Judge. The
undersigned recommends that Respondent's Motion to
Dismiss be granted.
1993, a federal grand jury in the District of Maryland
indicted Petitioner for one count of conspiracy to possess
heroin with the intent to distribute. See United States
v. Queen, 1:93-cr-369-CCB (D.Md.); United States v.
Queen, 95 F.3d 43, 1996 WL 494066, at *1 (4th Cir. Aug.
30, 1996) Petitioner ultimately plead guilty to the crime
charged in the indictment. Queen, 1996 WL 494066, at
*1. On direct appeal, the Fourth Circuit reviewed “the
district court's decision to deny [Petitioner's]
motion to withdraw the guilty plea he entered, as well as the
court's refusal to depart downward in sentencing.”
Id. The Fourth Circuit affirmed the conviction and
Petitioner filed a § 2255 motion, which he later
amended. United States v. Queen, 1:93-cr-369-CCB,
Dkt. Nos. 165; 173. The district court denied the motion, and
the Fourth Circuit dismissed the appeal. Id. Dkt.
Nos. 214; 225. Petitioner filed a second § 2255 motion
in 1999, which was dismissed on the basis that it was
successive. Queen v. Sheehy, et. al.,
1:99-cv-02621-WEB, Dkt. Nos. 1; 3.) On April 19, 2000, the
Fourth Circuit denied a certificate of appealability and
dismissed the appeal. Queen v. Sheehy, 211 F.3d 1265
(4th Cir. April 19, 2000). Petitioner filed a third §
2255 motion in 2006, which was dismissed on the basis that it
was successive. United States v. Queen,
1:93-cr-369-CCB, Dkt. Nos. 254; 255; 256. On October 23,
2006, the Fourth Circuit denied a certificate of
appealability and dismissed the appeal. United States v.
Queen, 203 Fed.Appx. 469 (4th Cir. Oct. 23, 2006).
Petitioner filed a fourth § 2255 motion in 2008, which
was also dismissed. United States v. Queen,
1:93-cr-369-CCB, Dkt. Nos. 266; 267. It does not appear that
Petitioner appealed the district court's decision. On
October 31, 2008, Petitioner filed a “Motion for
Amended Judgment to Correct Excessive Sentence of
Imprisonment” in which he claimed that his 360-months
sentence was excessive and illegal under the Constitution and
statutes. Id. Dkt. No. 277. The district court
denied the motion. Id. Dkt. No. 278.
March 5, 2018, Petitioner filed the instant § 2241
petition. (Dkt. No. 1.) On June 28, 2018, Petitioner filed a
motion for leave to file additional briefing in support of
his petition (Dkt. No. 13), which the Court granted (Dkt. No.
16). On August 2, 2018, Respondent filed a Motion to Dismiss.
(Dkt. No. 18.) By order of this Court filed on August 2,
2018, pursuant to Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975), Petitioner was advised of the possible
consequences if he failed to respond adequately to the motion
for summary judgment. (Dkt. No. 19.) On August 27, 2018,
Petitioner filed his response in opposition to
Respondent's motion. (Dkt. No. 22.)
established local procedure in this judicial district, a
careful review has been made of the pro se petition
filed in this case pursuant to the Rules Governing §
2254 Cases, 28 U.S.C. § 2254; the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
Pub. L. No. 104-132, 110 Stat. 1214; 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, Md. House of Corr., 64 F.3d 951
(4th Cir. 1995) (en banc); and Todd v. Baskerville,
712 F.2d 70 (4th Cir. 1983).
se pleadings are given liberal construction and are held
to a less stringent standard than formal pleadings drafted by
attorneys. Erickson v. Pardus, 551 U.S. 89, 94
(2007); De'Lonta v. Angelone, 330 F.3d 630, 633
(4th Cir. 2003). However, “[t]he ‘special
judicial solicitude' with which a district court should
view . . . pro se complaints does not transform the
court into an advocate.” United States v.
Wilson, 699 F.3d 789, 797 (4th Cir. 2012), cert.
denied, 133 S.Ct. 2401 (2013). “Only those
questions which are squarely presented to a court may
properly be addressed.” Weller v. Dept. of Soc.
Servs. for City of Baltimore, 901 F.2d 387, 391 (4th
Cir. 1990). Giving “liberal construction” does
not mean that the Court can ignore a prisoner's clear
failure to allege facts that set forth a cognizable claim.
“Principles requiring generous construction of pro
se complaints . . . [do] not require . . . courts to
conjure up questions never squarely presented to them.”
Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985), cert. denied, 475 U.S. 1088 (1986).
instant action, Petitioner makes two claims attacking his
sentence of 360-months imprisonment. First, Petitioner claims
that he is being held unlawfully because “[t]he
indictment in which [he] plead carried a maximum penalty of
20 years. . . . [and he has now served] 25 years
imprisonment.” (Dkt. No. 1 at 7.) In his supporting
brief, Petitioner explains that his indictment for one count
of conspiracy to possess heroin with intent to distribute did
not mention any “specific drug quantity.” (Dkt.
No. 14 at 6.) Petitioner states that 21 U.S.C. § 841(a)
defines the crime that was the object of the conspiracy to
which he pled: namely, making it unlawful for any person,
knowingly or intentionally, to manufacture, distribute, or
dispense controlled or counterfeit substances. (Id.
at 5.) The penalties for violating § 841(a) are set
forth in 21 U.S.C. § 841(b), which lists terms of
imprisonment in § 841(b)(1)(A)-(D). Under §
841(b)(1)(C), regardless of the quantity of schedule I or II
drug, a defendant convicted of a violation of § 841(a)
is eligible for a term of imprisonment ranging from zero to
twenty years. In the other penalty sections of §
841(b)(1), however, the term of imprisonment is linked to
quantity of drugs. For example, in § 841(b)(1)(A), based
on a finding of a particular amount of drugs, the term of
imprisonment ranges from ten years to life.
to Petitioner, at the time he entered his guilty plea,
“settled law permitted drug quantity as a sentencing
factor” rather than an element of the crime.”
(Dkt. No. 14 at 6-7.) Given this law, Petitioner contends
that “it was not unusual for counsel to have a
defendant stipulate to a specific amount to cut off the
possibility of a life sentence.” (Id. at 6.)
Apparently, that is what occurred in this instance.
states that subsequent to his direct appeal and first §
2255 motion, the substantive law of this circuit changed such
that drug quantity would have to be considered an element of
the crime, “stated within the indictment.”
(Id. at 7-8.) Specifically, in Apprendi v. New
Jersey, the Supreme Court held that “[o]ther than
the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable
doubt.” 530 U.S. 466, 490 (2000). Petitioner contends
that his sentence of 360 months exceeded the statutory
maximum for his indicted crime, and that, pursuant to
Apprendi, he should not have been sentenced beyond
the statutory maximum without submission of his case to a
jury, and a conviction for a specific drug quantity found
beyond a reasonable doubt.
also claims that the “[s]entencing court improperly
sentenced [him] under the 1993 sentencing guidelines [when]
it was supposed to have used the guideline[s] in effect at
the time of sentencing.” (Dkt. No. 1 at 7.) Petitioner
argues that the use of the 1993 version of the sentencing