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Young v. Antonelli

United States District Court, D. South Carolina, Rock Hill Division

July 16, 2019

William Young, Petitioner,
v.
B.M. Antonelli, Respondent.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.

         This matter is before the court on Petitioner's pro se application for writ of habeas corpus filed in this court pursuant to 28 U.S.C. § 2241, arguing a change in law renders his sentence, as enhanced due to the “death results” sentencing guideline, infirm. ECF No. 1. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(c), DSC, this matter was referred to United States Magistrate Judge Paige J. Gossett for pre-trial proceedings and a Report and Recommendation (“Report”).

         On June 20, 2018, Respondent filed a return and a motion to dismiss, arguing the Petition presents a claim not cognizable on collateral review and is based on a clarifying amendment to the Sentencing Guidelines not made retroactive. ECF Nos. 12, 13. Petitioner filed a response in opposition on July 2, 2018, and a supplement on July 16, 2018. ECF Nos. 16, 18. The court thereafter adopted a Report of the Magistrate Judge, appointed the Federal Public Defender to represent Petitioner for the remainder of his case, denied Respondent's motion to dismiss without prejudice, and ordered further briefing to address the issues raised in the Report, including application of United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), timeliness under § 2241, retroactivity of Burrage v. United States, 571 U.S. 204 (2014), application of the mandatory guidelines, development of the record, and any other arguments the parties wished the court to consider. ECF Nos. 19 (Report), 25 (Order).

         Respondent filed a second motion to dismiss on November 9, 2018. ECF No. 33. Petitioner filed a response in opposition (ECF No. 37), and Respondent filed a Reply (ECF No. 42). The Magistrate Judge filed a Report on January 23, 2019, recommending the Petition be dismissed for lack of jurisdiction or, in the alternative, that summary judgment for Respondent be granted based on waiver. ECF No. 45. Petitioner thereafter filed a motion to stay these proceedings pending the filing and resolution of a motion pursuant to the First Step Act. ECF No. 49. The court granted the stay. ECF No. 50. On May 9, 2019, the court lifted the stay after resolution of the First Step Act motion, and gave Petitioner until May 24 to file objections to the Report filed January 23. ECF No. 51. Petitioner filed objections on May 24, 2019 (ECF No. 53), and Respondent filed a reply (after an extension) on June 21, 2019 (ECF No. 56).

         1. Standard

         The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of any portion of the Report of the Magistrate Judge to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). The court reviews the Report only for clear error in the absence of an objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”) (citation omitted).

         2. Discussion

         The Report recommends dismissal because Petitioner is unable to meet the test required to bring his claim under the savings clause of § 2255(e), as the “death enhancement” applied to his case pursuant to Sentencing Guidelines and not by statute. ECF No. 45 at 3. In the alternative, the Magistrate Judge recommends the Petition be denied because Petitioner waived his argument that the Government must prove the drug he distributed was the but-for cause of decedent's death. Id. at 5.

         Petitioner objected to the Report, arguing Burrage v. United States, 571 U.S. 204 (2014) should not only apply to the statutory death enhancement, but also the enhancement in the Sentencing Guidelines, and that the Petition meets all requirements of the savings clause. ECF No. 53 at 1-6. Petitioner also argues he did not waive his claim under Burrage, but waived a similar claim, and that he could not have waived a Burrage claim because it did not exist at the time of sentencing. Id. at 8-9. Finally, he argues “valid waivers can be excused by intervening developments in the law.” Id. at 9.

         Respondent argues the Report correctly found Petitioner cannot show a change in settled substantial law because Burrage does not apply to the Sentencing Guidelines. ECF No. 56 at 1-2. It also argues Petitioner waived his claim and such waiver should not be excused. Id. at 3-7. a. Savings Clause and Burrage Under Fourth Circuit law, a prisoner may challenge his sentence through a § 2241 petition if:

(1) at 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). The court agrees with the Magistrate Judge Petitioner cannot meet the second requirement of Wheeler: that a change in settled substantive law applied to him and was deemed to apply retroactively on collateral review.

         Petitioner contends Burrage changed the settled law applicable to his case. However, Petitioner's sentence was enhanced based on the “death enhancement” in Section 2D1.1(a)(1) of the Sentencing Guidelines, not the statutory death enhancement in 21 U.S.C § 841, as discussed in Burrage. Therefore, the court agrees with the Report that invocation of Burrage is premature because Burrage has not been held to apply to the Sentencing Guidelines. Therefore, Petitioner cannot meet the savings clause of § 2255(e) because the change in substantive law has no impact.

         Petitioner argues the cases cited in support of this finding by the Report were decided before the Fourth Circuit's opinion in Wheeler, and thus are inapposite to this case. The court in Perez-Colon v. O'Brien, C.A. No. 1:14-cv-119, 2016 WL 7168186, at *6 (N.D. W.Va. Dec. 8, 2016), found Burrage “does not apply here, where the district court applied a sentencing enhancement, not a finding under § 841(b)(1)(C).” In Powell v. United States, C.A. No. 3:09CV2141, 2014 WL 5092762, at *2 (D. Conn. Oct. 10, 2014), the court held “[u]nlike the sentence enhancement statute at issue in Burrage, the murder cross-reference guideline[1] at issue here is a sentencing factor which may be found by a sentencing judge by a preponderance of the evidence.” However, as Respondent noted, Perez-Colon was appealed, and the Fourth Circuit dismissed the § 2241 petition because that defendant “failed to satisfy the requirements of the savings clause of 28 U.S.C. § 2255(e) (2012).” Perez-Colon ...


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