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Queen v. Mosely

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

October 4, 2018

Samuel Robert Queen, # 29596-037, Petitioner,
v.
Bonita S. Mosely, Respondent.

          REPORT AND RECOMMENDATION

          MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE

         Petitioner, 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.

         BACKGROUND

         In 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 sentence. Id.

         Subsequently, 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.

         On 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.)

         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 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).[1]

         Pro 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).

         DISCUSSION

         In the 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.

         According 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.

         Petitioner 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.

         Petitioner 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 guidelines ...


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