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Sisk v. Warden, FPC-Edgefield

United States District Court, D. South Carolina

April 5, 2019

Robert Lionel Sisk, Petitioner,
v.
Warden, FPC-Edgefield, Respondent.

          REPORT AND RECOMMENDATION

          PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE

         The petitioner, Robert Lionel Sisk, a self-represented prisoner confined at the Federal Prison Camp in Edgefield, South Carolina, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. 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 indicates he was convicted of conspiracy to possess with intent to distribute cocaine and methamphetamine in violation of 21 U.S.C. §§ 841, 856 in the United States District Court for the Western District of North Carolina.[1] (Pet., ECF No. 1 at 1, ECF No. 1-1 at 1.) Petitioner also indicates he was sentenced under the career offender provision of the United States Sentencing Guidelines, § 4B1.1, to 276 months' imprisonment. (Id., ECF No. 1-1 at 1-2.) Petitioner claims the career offender designation was based on two prior North Carolina misdemeanor convictions for assault on a female. (Id.) Petitioner indicates he filed a motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255 in the Western District of North Carolina that was denied. (Id., ECF No. 1 at 3-4.) Petitioner also filed two petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in this court that were dismissed.[2]

         Petitioner now files this § 2241 petition pursuant to Wheeler, arguing his sentence is now unlawful because his prior convictions are no longer predicate offenses under the career offender provision of the sentencing guidelines. Specifically, Petitioner claims the United States Court of Appeals for the Fourth Circuit's decision in United States v. Vinson, 805 F.3d 120 (4th Cir. 2015) has changed the analysis for whether a North Carolina conviction for assault on a female counts as a predicate offense. (Id., ECF No. 1-1 at 5-6.) Petitioner argues that because the Fourth Circuit found that assault on a female can be proven by establishing “mere culpable negligence, ” the offense can longer be used as predicate offense under the career offender provision. (Id.) Petitioner asks the court to order his immediate release. (Id., ECF No. 1 at 7.)

         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, [3] 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 United States Court of Appeals for 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).

         In this case, Petitioner argues his two prior North Carolina convictions for assault on a female no longer count as predicate offenses under the sentencing guidelines based on United States v. Vinson, 805 F.3d 120 (4th Cir. 2015). In Vinson, the Fourth Circuit held that Vinson's prior North Carolina misdemeanor conviction for assault on a female did not qualify as a “misdemeanor crime of domestic violence” under a federal statute barring possession of a firearm by a person previously convicted of a misdemeanor crime of domestic violence, 18 U.S.C. § 922(g). See Vinson, 805 F.3d at 122-26. However, Petitioner was not convicted under 18 U.S.C. § 922(g). Rather, Petitioner was convicted under 21 U.S.C. §§ 841, 846, and his sentence was enhanced under the career offender provision of the sentencing guidelines, U.S.S.G. § 4B1.1. Thus, Vinson did not change the substantive law under which Petitioner was sentenced. Cf. Beckles v. United States, 137 S.Ct. 886, 894 (2017) (holding that the residual clause in ยง ...


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