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Barnes v. Bragg

United States District Court, D. South Carolina, Anderson/Greenwood Division

July 16, 2019

Chester Lee Barnes, Jr., Petitioner,
v.
M. Travis Bragg, Respondent.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          Jacquelyn D. Austin United States Magistrate Judge.

         This matter is before the Court on Respondent's second motion to dismiss. [Doc. 44.] Petitioner is a federal prisoner, proceeding pro se, who seeks relief under 28 U.S.C. § 2241. 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., this magistrate judge is authorized to review the instant habeas Petition and submit findings and recommendations to the District Court. Having carefully considered the parties' submissions and the record in this case, the Court recommends that Respondent's motion to dismiss be granted.

         BACKGROUND

         Subsequent to a guilty plea, Petitioner was sentenced in the United States District Court for the Eastern District of North Carolina on July 29, 2008 to 320 months' imprisonment for violation of 21 U.S.C. § 841(a)(1)-intent to distribute more than five grams of cocaine base-and violation of 18 U.S.C. § 924(c)(1)(A)-possession of a firearm in furtherance of a drug trafficking crime. [E.D. N.C. No. 5:07-cr-00351-BO-1, Doc. 31].[1] Specifically, Petitioner was sentenced to consecutive sentences of 260 months' imprisonment for his conviction for possession with intent to distribute more than five grams of cocaine and sixty months' imprisonment for possession of a firearm in furtherance of a drug trafficking crime. [Id.] Petitioner did not file a direct appeal. On February 9, 2012, Petitioner filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. [Id., Doc. 33.] The motion was dismissed as untimely. [Id., Doc. 46.] Subsequently, the Fourth Circuit Court of Appeals affirmed the dismissal of Petitioner's § 2255 motion. United States v. Barnes, 509 Fed.Appx. 279 (4th Cir. 2013) (unpublished decision).

         On July 16, 2015, Petitioner filed a § 2241 Petition in this Court. [D.S.C. No. 8:15-cv-02842-HMH-JDA, Doc. 1.] Petitioner challenged a career offender sentence enhancement imposed under § 4B1.1 of the United States Sentencing Guidelines and alleged that one of his prior convictions used to enhance his sentence no longer qualifies as a predicate offense in light of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). [D.S.C. No. 8:15-cv-02842-HMH-JDA, Doc. 1 at 6-10.] The Court dismissed the § 2241 Petition on the basis that Petitioner failed to establish the requirements of § 2255's savings clause because “the savings clause does not apply to petitioners challenging only their sentence.” Barnes v. Bragg, 8:15-cv-02842-HMH-JDA, 2016 WL 4087360, at *4 (D.S.C. July 12, 2016), Report and Recommendation Adopted by 2016 WL 4040295 (July 28, 2016), affirmed by Barnes v. Bragg, 696 Fed.Appx. 629 (4th Cir. 2017).

         Petitioner filed this Petition for writ of habeas corpus on May 18, 2018.[2] [Doc. 1.] In Petitioner's current § 2241 Petition, Petitioner again contends that he was incorrectly sentenced as a career offender under the advisory guidelines because at least some of his predicate state convictions that qualified him as a career offender no longer qualify as predicate offenses in light of Simmons. [Doc. 1.] On July 19, 2018, Respondent filed a motion to dismiss the Petition. [Doc. 9.] The next day, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Petitioner was advised to respond to the motion and of the possible consequences if he failed to adequately respond. [Doc. 10.] Petitioner filed a response in opposition to the motion to dismiss on August 20, 2018. [Doc. 12.]

         On October 3, 2018, the undersigned issued a Report and Recommendation recommending that the Petition be dismissed on the basis that he could not satisfy the savings clause test under 28 U.S.C. § 2255(e), pursuant to United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), the satisfaction of which was necessary in order for Petitioner to proceed under § 2241. [Doc. 14.] Then, on November 20, 2018, the Honorable Henry M. Herlong, Jr., issued a decision declining to adopt the Report and Recommendation, explaining:

After a thorough review of the record and the applicable law, the court is unable to determine whether the jurisdictional savings clause requirements of 28 U.S.C. § 2255(e) have been satisfied without additional information. The court cannot determine the applicability of Simmons on the current record before the court. Specifically, [Petitioner's] Presentence Investigation Report and the guilty plea and sentencing hearings transcripts are currently unavailable to conduct an analysis of whether the issues raised by [Petitioner] present an error “sufficiently grave to constitute a fundamental defect.” See Wheeler, 886 F.3d at 429.

[Doc. 21.] Accordingly, Judge Herlong dismissed the motion to dismiss without prejudice, appointed a federal public defender to represent Petitioner, and ordered the parties to file supplemental briefing

addressing (1) the application of Wheeler's fundamental defect standard to sentences imposed under advisory guidelines, (2) the distinction, if any, between a “fundamental defect” in the context of a § 2255(a) motion and a § 2241 petition, (3) the application of United States v. Foote, 784 F.3d 931 (4th Cir. 2015), to a § 2241 petition, (4) development of the record, including the Presentence Investigation Report and hearing transcripts, and (5) any other issues the parties believe will aid the court.

[Doc. 21 at 2-3.] Judge Herlong also ordered the parties “to file the Presentence Investigation Report under seal and hearing transcripts as attachments to any supplemental briefs.” [Id. at 2.]

         On April 5, 2019, Petitioner filed a supplement to his Petition. [Doc. 41.] The supplement “acknowledges that it appears [Foote] may control the outcome of this matter” but argues that “Foote was wrongly decided” and alternatively contends that “[t]o the extent . . . Foote controls the outcome of this [P]etition, Petitioner asserts a right to relief in the alternative under a writ of audita querela, as his sentence is illegal after [Simmons].” [Doc. 41 at 1.] Petitioner attached to the supplement his plea agreement, his Presentence Investigation Report under seal, and a transcript of his sentencing hearing.[3] [Docs. 41-1; 41-2; 41-3; 42.] On May 6, 2019, Respondent filed a response in opposition to the supplemental petition and a second motion to dismiss the Petition. [Docs. 43; 44.] Petitioner filed a response opposing the second motion to dismiss on May 20, 2019. [Doc. 46.] The motion is now ripe for review.

         APPLICABLE LAW

         Liberal Construction ...


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