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Reynolds v. Joyner

United States District Court, D. South Carolina

November 5, 2018

Cedric Reynolds, Petitioner,
v.
H. Joyner, Warden, Respondent.

          REPORT AND RECOMMENDATION

          Bristow Marchant United States Magistrate Judge

         The pro se Petitioner, Cedric Reynolds, an inmate at FCI-Estill, brings this application for writ of habeas corpus (Petition) pursuant to 28 U.S.C. § 2241. 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 procedural provisions of the Rules Governing Section 2254 Proceedings in the United States District Court, [1]28 U.S.C. § 2254; the Anti-Terrorism and Effective Death Penalty Act (AEDPA) 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. Md. House of Corr.. 64 F.3d 951 (4th Cir. 1995); and Todd v. Baskerville. 712 F.2d 70 (4th Cir. 1983).

         Pro se petitions are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a petition filed by a pro se litigant to allow for the development of a potentially meritorious case. See Erickson v. Pardus. 551 U.S. 89 (2007); Hughes v. Rowe. 449 U.S. 5, 9 (1980); Fine v. City of New York. 529 F.2d 70, 74 (2d Cir. 1975). However, even when considered under this less stringent standard, for the reasons set forth hereinbelow the petition submitted in the instant case is subject to summary dismissal. The requirement of liberal construction does not mean that this 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). Such is the case here.

         Discussion

         After pleading guilty in 2013 in the United States District Court for the Southern District of Georgia to possession of a firearm by an armed career criminal, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1), Petitioner received an enhanced sentence under the Armed Career Criminal Act (ACCA) because he had a prior Georgia conviction for possession of a controlled substance with intent to distribute, a juvenile adjudication for making terroristic threats, and a juvenile adjudication for aggravated assault. No. direct appeal was filed. See Reynolds v. United States, No. 17-10092-G, 2017 WL 6888009 (11th Cir. Dec. 28, 2017).

         In June 2014, Petitioner filed his first motion to vacate pursuant to 28 U.S.C. § 2255, claiming ineffective assistance of counsel for (1) his attorney's failure to object to this ACCA sentencing enhancement on the ground it was not charged in the indictment and (2) to the use of his previous juvenile adjudications as qualifying ACCA predicate offenses. The district court denied the § 2255 motion on the merits, concluding that both of Petitioner's juvenile adjudications qualified as ACCA violent-felony predicate offenses under the ACCA's elements clause and denied a certificate of appealability (COA). Petitioner moved the Eleventh Circuit Court of Appeals for a COA, arguing for the first time that he was entitled to relief on his second claim under Johnson v. United States. 135 S.Ct. 2551 (2015)[declaring the residual clause in ACCA, 18 U.S.C. § 924(e), unconstitutionally vague], based on the vagueness of the state's record that was used to enhance his sentence. The CO A was denied with the Eleventh Circuit concluding that Petitioner's reliance on Johnson was misplaced because Johnson concerned only the residual clause of the ACCA and did not affect the ACCA's elements clause, which is the clause that applied to Petitioner's juvenile offenses. See Reynolds v. United States. 2017 WL 6888009, at *1.

         Petitioner filed a second § 2255 motion in the Southern District of Georgia (after receiving leave from the Eleventh Circuit to do so in July 2016), contending that his ACCA-enhanced sentence was illegal in light of Johnson, specifically arguing that his Georgia aggravated-assault and terroristic-threats adjudications no longer qualified as ACCA violent-felony predicate offenses such that he no longer had at least three qualifying offenses supporting his ACCA-enhanced sentence. He also claimed that his ACCA-sentence was illegal in light of Descamps v. United States, 570 U.S. 254 (2013). A magistrate judge recommended that the second § 2255 motion be dismissed for Petitioner's failure to meet § 2255(h)(2)'s requirement that the raised claim be previously unavailable to him because he previously presented his Johnson-based claim in his COA motion to the Eleventh Circuit as to his initial § 2255 motion (the Descamps claims were not addressed). See Reynolds v. United States. Nos. CV416-194, CR412-239, 2016 WL 5030375 (S.D.Ga. Sept. 19, 2016).[2] The Southern District of Georgia adopted the report and recommendation and dismissed the second § 2255 motion for lack of jurisdiction. Reynolds v. United States. Nos. CV416-194, CR412-239, 2016 WL 7493970 (S.D.Ga. Dec. 30, 2016). The Eleventh Circuit denied a COA finding that they had already denied Petitioner a COA on his claim that his prior juvenile convictions no longer constituted ACCA violent-felony predicates post-Johnson and that he failed to show that any exceptions applied.[3] Id. at *3.

         In the present Petition, Petitioner again asserts that he is challenging the use of a sentence enhancement under the Armed Career Criminal Act (ACCA) and asks to be resentenced without reference to the ACCA to a sentence not exceeding the ten-year statutory maximum. Petition, ECF No. 1 at 8-9. His ground for relief is that his sentence was improperly enhanced under the ACCA based on three prior offenses, one of which, the Georgia terroristic threat, should no longer be considered violent for ACCA purposes. Id. at 8. Petitioner argues that he has demonstrated that he is entitled to relief under United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018) because the government conceded in Stewart v. United States. 2017 WL 1407641 (M.D.Ga. Apr. 19, 2017) that Georgia terroristic threats no longer qualify as ACCA predicates. Petitioner's Memorandum, ECF No. 1-1 at 4.

         This action is subject to summary dismissal because generally "it is well established that defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255," not through a petition filed pursuant to § 2241. Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citing InreViai 115 F.3d 1192, 1194 (4th Cir. 1997)). However, a federal prisoner may file a § 2241 petition challenging his conviction if § 2255 is "inadequate or ineffective to test the legality of [his] detention." In re Jones. 226 F.3d 328, 333 (4th Cir. 2000) (internal quotation marks omitted); see 28 U.S.C. § 2255(e). Here, Petitioner challenges only his sentence. Recently, in Wheeler, the Fourth Circuit held that § 2255 is inadequate or ineffective to test the legality of a sentence when:

(1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to meet the gate keeping provisions of § 2255(h)(2) for second or successive motions; and (4) due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect.

United States v. Wheeler. 886 F.3d at 429)(citing In re Jones. 226 F.3d at 333-34).

         Petitioner fails to meet the above test as he cannot establish that, subsequent to his first § 2255 motion, the "settled substantive law [that established the legality of his sentence] changed and was deemed to apply retroactively on collateral review," as required by the second prong. Wheeler. 886 F.3d at 429. Petitioner argues that Johnson, made retroactive by Welch v. United States. 136 S.Ct. 1257, 1268 (2016), changed settled substantive law. However, as found by the Eleventh Circuit, Petitioner's sentence was enhanced under the elements clause of the ACC A, not the residual clause and Johnson applies only to defendants sentenced under the ACCA's residual clause.

         In a report and recommendation as to Petitioner's first § 2255 motion, which was adopted by the district judge, the magistrate judge specifically noted:

Reynolds was ACCA-enhanced based on two juvenile adjudications. The first, which occurred in 2002, was for terroristic threats - - Reynolds pointed a pistol at a victim and threatened a crime of violence against him. (Cr. Doc. 50-1 at 3). The second occurred in 2005. Reynolds was adjudicated guilty of ...

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