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Ponder v. United States

United States District Court, D. South Carolina

May 8, 2019

Tobian Ponder, Petitioner,
v.
United States of America, Warden Bryan Antonnelli, Respondents.

          REPORT AND RECOMMENDATION

          SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE

         Tobian Ponder (“Petitioner”), proceeding pro se, is an inmate at the Federal Correctional Institution Williamsburg in Salters, South Carolina, in the custody of the Bureau of Prisons. He filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the district judge. For the following reasons, the undersigned recommends the district judge dismiss the petition in this case without requiring the respondents to file an answer.

         I. Factual and Procedural Background

         On May 18, 1998, a jury found Petitioner guilty of one count of conspiracy to commit Hobbs Act robbery (Count 1); four counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (Counts 2, 4, 6, and 8); four counts of using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Counts 3, 5, 7, and 9); one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) (Count 10); and one count of possession of a stolen firearm, in violation of 18 U.S.C. § 922(j) (Count 11). United States v. Ponder, No. 1:97-cr-00162-DMM (S.D. Fla. 1998).[1] On August 26, 1998, the Southern District of Florida (“Sentencing Court”) sentenced Petitioner to 1015 months' imprisonment, consisting of: (1) 235 months for the Hobbs Act charges (Counts 1, 2, 4, 6, and 8), to run concurrently; (2) 120 months for the § 922 charges (Counts 10 and 11), to run concurrently with each other and with the Hobbs Act sentence; (3) 60 months on Count 3, the first § 924(c) count; and (4) 240 months on the remaining § 924(c) counts (Counts 5, 7, and 9), to run consecutively to each other and to the sentences imposed on the other counts. Id., ECF No. 88.

         On appeal, the Eleventh Circuit Court of Appeals affirmed Petitioner's convictions and sentences. Id., ECF No. 111; United States v. Brown, et. al., No. 98-5251 (11th Cir. Jan. 7, 2000). On November 27, 2000, Petitioner filed a motion to vacate pursuant to 28 U.S.C. § 2255. Id., ECF No. 133. The Sentencing Court denied Petitioner's motion on September 13, 2001, id., ECF No. 137, and Petitioner did not appeal.

         On May 25, 2016, Petitioner sought permission from the Eleventh Circuit to file a second § 2255 motion based on Johnson v. United States, 135 S.Ct. 2551 (2015). See id., ECF No. 166 at 3. On June 24, 2016, before a decision from the Eleventh Circuit, Petitioner filed his second § 2255 motion in the Sentencing Court. Id. Later that day, the Eleventh Circuit denied Petitioner's application for leave to file a second § 2255 motion. See Order, No. 16-13022 (11th Cir. June 24, 2016). On July 7, 2016, the Sentencing Court dismissed Petitioner's § 2255 motion. See Order, Ponder v. United States, No. 1:16-cv-22582-DMM (S.D. Fla. July 7, 2016), ECF No. 7.

         Petitioner now challenges his sentence, alleging conspiracy to commit Hobbs Act robbery is no longer a “crime of violence” after the Fourth Circuit's decision in United States v. Simms, 914 F.3d 229 (4th Cir. 2019), and, therefore, he should be resentenced without consideration of any of the § 924(c) counts. [ECF No. 1 at 6-8].

         II. Discussion

         A. Standard of Review

         Under established local procedure in this judicial district, a careful review has been made of this petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, [2] the Anti- Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, and other habeas corpus statutes. Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).

         B. Analysis

         “[I]t is well established that defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255.” Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citing In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997)). In contrast, a petition filed under § 2241 is typically used to challenge the manner in which a sentence is executed. See In re Vial, 115 F.3d at 1194 n.5. A petitioner cannot challenge his federal conviction and sentence under § 2241 unless he can satisfy the § 2255 savings clause, which states:

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

28 U.S.C. § 2255(e); see also Rice, 617 F.3d at 807 (finding court lack jurisdiction over ยง 2241 ...


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