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Asar v. Antonelli

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

June 3, 2019

Difankh Asar, Petitioner,
v.
Warden Antonelli, Respondent.[1]

          REPORT OF MAGISTRATE JUDGE

          Kevin F. McDonald United States Magistrate Judge.

         The petitioner, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2241 for habeas relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil 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 Court. For the reasons set forth below, it is recommended that the petitioner's § 2241 petition be dismissed without prejudice and without requiring the respondent to file an answer or return.

         The petitioner's § 2241 petition was entered on the docket on May 29, 2019 (doc. 1). The case is in proper form for judicial screening.

         BACKGROUND

         Petitioner's Conviction and Sentence

         On July 26, 2010, the petitioner pled guilty in the United States District Court for the District of South Carolina to Count 1 of an Indictment charging him with the unlawful transport of a firearm in violation of 18 U.S.C. §§ 922(g)(1); 924(a)(2); 924(e).[2] See United States v. Asar, Cr. No. 7:10-429-BHH-1 (D.S.C.). On December 9, 2010, the Honorable G. Ross Anderson sentenced the petitioner to a term of 180 months' imprisonment followed by five (5) years of supervised release. Id. at doc. 56. The sentence was enhanced based upon the Armed Career Criminal Act (“ACCA”). Id. The petitioner appealed, but the Fourth Circuit Court of Appeals affirmed the district court on May 8, 2012. Id. at docs. 59; 81; see United States v. Asar, 480 Fed.Appx. 207 (4th Cir. 2012).

         During the pendency of his § 2255 motions-discussed below-the petitioner, on May 23, 2018, filed a § 2241 action (seeking relief via the § 2255 savings clause) in the United States District Court for the Northern District of Alabama, arguing that his sentence was unconstitutional in light of Johnson. See Asar v. United States of America, C/A No. 7:18-789-ACA-JHE (N.D. Ala.). The petition was dismissed because the petitioner did not bring the case into proper form. Id. at doc. 5.

         Petitioner's § 2255 Motions

         The petitioner has filed three separate § 2255 motions. The first, filed in 2012, argued ineffective assistance of counsel, that the petitioner did not have any predicate offenses for ACCA purposes, and the rule of lenity. See United States v. Asar, C/A No. 7:10-cr-00429-BHH-1, at doc. 83. The petitioner's § 2255 motion was denied on October 10, 2012. Id. at doc. 107, 2012 WL 4809145. The petitioner's appeal of his § 2255 motion was dismissed by the Court of Appeals on April 1, 2013. United States v. Asar, 516 Fed.Appx. 256 (4th Cir. 2013), cert denied 570 U.S. 924 (2013).

         On July 22, 2013, the petitioner sought permission from the Court of Appeals to file a second/successive § 2255 motion, which was denied on August 8, 2013. See In re Asar, No. 13-314 (4th Cir. 2013). On March 11, 2016, the petitioner again sought permission from the Court of Appeals to file a second/successive § 2255 motion, which was granted on May 5, 2016, in light of the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), which was held to be retroactive on collateral review by Welch v. United States, 136 S.Ct. 1257 (2016). See In re Asar, No. 16-224 (4th Cir. May 5, 2016). The petitioner filed the authorized § 2255 motion on May 6, 2016. See United States v. Asar, Cr. No. 7:10-429-BHH-1, at doc. 133. On July 19, 2017, the petitioner's motion was denied, finding that his prior convictions still counted as priors for purposes of the ACCA because they fall under the “force clause” of the United States Sentencing Guidelines (“USSG”). Id. at doc. 153. The petitioner appealed, his appeal was dismissed, and the Supreme Court denied certiorari. United States v. Asar, No. 17-6977, 704 Fed.Appx. 280 (4th Cir. 2017) (mem.), cert denied 139 S.Ct. 281 (2018) (mem.).

         Then, on June 6, 2018, the petitioner filed a motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. United States v. Asar, Cr. No. 7:10-429-BHH-1, at doc. 164. After the motion was denied, the petitioner filed a motion to amend his Rule 60(b) motion, which was also denied. Id. at docs. 166; 173; 174. The petitioner's appeal of the denial was dismissed on March 1, 2019. United States v. Asar, 755 Fed.Appx. 306 (4th Cir. 2019) (mem.), reh'g and reh'g en banc denied. During this same time, the petitioner unsuccessfully sought a writ of mandamus from the Court of Appeals, arguing that the district court was unduly delaying ruling on his Rule 60(b) motion. See In re Asar, 755 Fed.Appx. 266 (4th Cir. 2019) (mem.).

         On March 22, 2019, the petitioner sought permission from the Court of Appeals to file a successive § 2255 motion. See In re Asar, No. 19-165 (4th Cir.). On March 28, 2019, the petition filed a third § 2255 motion, despite his request to file a § 2255 motion that was pending before the Court of Appeals. See United States v. Asar, Cr. No. 7:10-429-BHH-1, at doc. 187. The Court of Appeals denied the petitioner's request on April 11, 2019. In re Asar, No. 19-165. To date, the petitioner's third § 2255 motion-along with a motion to dismiss the petitioner's § 2255 motion-is pending in the United States District Court for the District of South Carolina. See United States v. Asar, Cr. No. 7:10-429-BHH-1.

         Petitioner's Present Action

         Here, the petitioner seeks habeas relief pursuant to 28 U.S.C. § 2241, claiming that his sentence is unconstitutionally enhanced by the ACCA in light of Johnson. (doc. 1 at 8-10). For his relief, the petitioner requests that this court vacate his current sentence and return his case to the ...


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