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Peacock v. Bragg

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

March 5, 2019

Antwon Demetriu Peacock, # 51112-056, Petitioner,
v.
Travis Bragg, Respondent.

          REPORT AND RECOMMENDATION

          MARY CORDON 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 205-months imprisonment, which was imposed in 2008 in the Eastern District of North Carolina. (Dkt. No. 1.) Currently before the Court is Respondent's Motion to Dismiss. (Dkt. No. 11.) 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 2008, a federal grand jury in the Eastern District of North Carolina indicted Petitioner for four counts: (1) conspiracy with intent to possess and distribute more than 50 grams of crack cocaine, in violation of 21 U.S.C. § 846; (2) possessing with intent to distribute more than 5 grams of crack cocaine and a quantity of methamphetamine, in violation of 21 U.S.C. § 841(a)(1); (3) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); and (4) possessing with intent to distribute more than 5 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). See United States v. Peacock, Case No. 5:08-cr-82-BR (E.D. N.C. ); Dkt. No. 1. Petitioner ultimately pled guilty to Counts One and Three of the indictment pursuant to a written plea agreement. The plea agreement provided in part that Petitioner “knowingly and expressly” waives “the right to appeal whatever sentence is imposed on any ground, . . . reserving only the right to appeal from a sentence in excess of the advisory Guideline range that is established at sentencing, and further to waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to 28 U.S.C. § 2255, excepting the Defendant's right to appeal based upon ground of ineffective assistance of counsel and prosecutorial misconduct not known to the Defendant at the time of the Defendant's guilty plea.” Id. Dkt. No. 57.

         On December 1, 2008, the district court sentenced Petitioner. The government had filed a § 5K1.1 motion for a downward departure due to substantial assistance. Id. Dkt. No. 63. The district court granted the motion and sentenced Petitioner to a below-Guidelines sentence of 205 months imprisonment. Specifically, Petitioner was sentenced to 205 months on the crack cocaine conspiracy count and a concurrent 120 months on the felon in possession of a firearm count. Id. Dkt. No. 66. A career-offender enhancement was applied to the sentence. Petitioner did not file a notice of appeal.

         In January 2011, Petitioner filed a § 2255 motion, Id. Dkt. No. 69, which the district court dismissed as untimely. Id. Dkt. No. 72. In November 2011, Petitioner filed another § 2255 motion, asserting a claim based on the Fourth Circuit Court of Appeals decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). Id. Dkt. No. 75. The district court dismissed the motion on the basis that it was successive. Id. Dkt. No. 85. On June 7, 2012, Petitioner filed a motion for reconsideration, which the district court denied. Id. Dkt. Nos. 87; 93. On August 16, 2012, Petitioner filed a motion for authorization to file a successive § 2255 motion in the Fourth Circuit. See In re: Antwon Peacock, Appeal No. 12-290 (4th Cir.); Dkt. No. 2. The Fourth Circuit Court of Appeals denied Petitioner' motion on August 29, 2012. Id. Dkt. No. 5.

         On July 19, 2018, Petitioner filed the instant § 2241 petition. (Dkt. No. 1.) Petitioner attacks his sentence of 205-months imprisonment on the basis that he was incorrectly sentenced as a career offender under the advisory Guidelines because at least one of his predicate state convictions that qualified him as a career offender no longer qualifies as a predicate offense in light of Simmons. (Dkt. Nos. 1-1 at 2; 16 at 1-2.)

         On September 25, 2018, Respondent filed a Motion to Dismiss. (Dkt. No. 11.) On November 1, 2018, Petitioner filed his response in opposition to Respondent's motion. (Dkt. No. 16.) On November 29, 2019, the Court issued a Text Order, finding that additional information was needed before the Court could make a recommendation as to Respondent's motion. (Dkt. No. 17.) Specifically, the Court instructed Respondent to produce Petitioner's Presentence Investigation Report (“PSR”) and the guilty plea and sentencing hearing transcripts from the underlying action, United States v. Peacock, Case No. 5:08-cr-82-BR (E.D. N.C. ). (Id.) The Court further instructed the parties to provide further briefing as to: (1) the application of Wheeler's fundamental defect standard to sentences imposed under advisory Guidelines, (2) the distinction, if any, between a fundamental defect in the context of a § 2255(a) motion and a § 2241 petition, (3) the application of United States v. Foote, 784 F.3d 931 (4th Cir. 2015), to a § 2241 petition, and (4) development of the record, including the PSR and hearing transcripts. (Id.) Respondent filed Petitioner's PSR under seal on December 20, 2018. (Dkt. N. 22.) Petitioner filed supplemental briefs on January 3, 2019 and January 16, 2019. (Dkt. Nos. 26; 30.) Respondent filed a supplemental brief on February 12, 2019 and explained that the court reporter in the underlying action could not locate the guilty plea and sentencing hearing transcripts. (Dkt. No. 31 at 2.) Respondent's motion has been fully briefed and is ripe for disposition.

         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

         A. Waiver

         Respondent first argues that this action should be dismissed because Petitioner has waived the right to file his present § 2241 motion by the express terms of his plea agreement. (Dkt. No. 31 at 5-6.) As discussed above, Petitioner entered into a plea agreement that provided in part that Petitioner “knowingly and expressly” waives “the right to appeal whatever sentence is imposed on any ground, . . . reserving only the right to appeal from a sentence in excess of the advisory Guideline range that is established at sentencing, and further to waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to 28 U.S.C. § 2255, excepting the Defendant's right to appeal based upon ground of ineffective ...


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