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Lewis v. United States

United States District Court, D. South Carolina

April 2, 2019

Alden Bernard Lewis, Petitioner,
v.
United States of America, Respondent.

          REPORT AND RECOMMENDATION

          PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE

         The petitioner, Alden Bernard Lewis, a self-represented inmate at the Federal Correctional Complex in Coleman, Florida, [1] filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The Petition is filed in forma pauperis pursuant to 28 U.S.C. § 1915 and § 1915A. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.). Having reviewed the Petition in accordance with applicable law, the court concludes that it should be summarily dismissed.

         I. Factual and Procedural Background

         Petitioner, a federal prisoner, indicates he was convicted in the United States District Court for the Middle District of Florida of Hobbs Act robbery and sentenced in 2012 under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(c). (Pet., ECF No. 1 at 1; ECF No. 1-1 at 2.) That section of the ACCA provides for penalties where the defendant uses, carries, or possesses a firearm in the furtherance of a crime of violence. Petitioner argues that his sentence under that provision has now been rendered unlawful because the United States Courts of Appeal for the Fourth and Fifth Circuits recently found that the definition of “crime of violence” in § 924(c)(3)(B) is unconstitutionally vague. See United States v. Simms, 914 F.3d 229 (4th Cir. 2019); United States v. Davis, 903 F.3d 483 (5th Cir. 2018), cert. granted 139 S.Ct. 782 (Jan. 4 2019). (Id. at 5; ECF No. 1-1 at 2-4.) Petitioner asks the court to vacate his conviction and sentence. (Id. at 8; ECF No. 1-1 at 9.)

         II. Discussion

         A. 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, [2] 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); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).

         This court is required to liberally construe pro se complaints, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, 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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).

         B. Analysis

         A petitioner cannot challenge his federal conviction and sentence through § 2241 unless he can show under the “savings clause” of § 2255(e) that a § 2255 motion is “inadequate or ineffective to test the legality of his detention.” See 28 U.S.C. § 2255(e); see also Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (providing that if a federal prisoner brings a § 2241 petition that does not fall within the scope of the savings clause, the district court must dismiss the unauthorized habeas petition for lack of jurisdiction). The Fourth Circuit has held that a petitioner must establish the following criteria to demonstrate that a § 2255 motion is inadequate or ineffective to test the legality of a prisoner's sentence:

(1) [A]t 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 gatekeeping 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 415, 429 (4th Cir. 2018).[3]

         Here, Petitioner fails to point to a retroactive change in the law of the Supreme Court or the relevant circuit that rendered his sentence illegal. First, the court notes that Petitioner was sentenced in the Middle District of Florida, which is in the Eleventh Circuit. Thus, the decisions of the Fourth and Fifth Circuits in Simms and Davis are not controlling here. But regardless, neither Simms or Davis indicate that the decisions should be applied retroactively.[4] Thus, Petitioner fails to meet the first and second prongs of the standard in Wheeler. And, even if an authoritative court were to declare § 924(c) unconstitutional and apply the decision retroactively, Petitioner would likely meet the gatekeeping provision of § 2255(h)(2).

         Consequently, Petitioner's remedy, if any, appears to be to seek permission to file a § 2255 motion in the court in which he was sentenced by filing a motion for leave to file a successive § 2255 motion in the United States Court of Appeals for the Eleventh Circuit. See 28 U.S.C. § 2255(h). Therefore, this case should be dismissed because this court lacks jurisdiction over the Petition. See Wheeler, 886 F.3d at 426 ...


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