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Weiters v. Andres

United States District Court, D. South Carolina

September 23, 2019

Elton Weiters, Petitioner,
v.
Warden Justin Andres, Respondent.

          REPORT AND RECOMMENDATION

          Bristow Marchant, United States Magistrate Judge.

         The pro se Petitioner, Elton Weiters, brings this application for writ of habeas corpus (Petition) pursuant to 28 U.S.C. § 2241. 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 procedural provisions of the Rules Governing Section 2254 Proceedings in the United States District Court, [1] 28 U.S.C. § 2254; the Anti-Terrorism and Effective Death Penalty Act of 1996; 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); and Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983).

         Pro se petitions are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a petition filed by a pro se litigant to allow for the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Cruz v. Beto, 405 U.S. 319 (1972); Fine v. City of New York, 529 F.2d 70, 74 (2d Cir. 1975). However, even when considered under this less stringent standard, for the reasons set forth hereinbelow the petition submitted in the instant case is subject to summary dismissal. The requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. See Weller v. Dep't of Soc. Serve., 901 F.2d 387 (4th Cir. 1990).

         Discussion

         On June 29, 2016, in the United States District Court for the District of South Carolina, Petitioner pleaded guilty, pursuant to a written plea agreement, to possession with the intent to distribute 28 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(b)(1)(B) and 846, and being a felon in possession of firearms and ammunition in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). On January 30, 2017, he was sentenced to an aggregate term of 72 months imprisonment. See United States v. Weiters, No. 2:16-0056 (D.S.C. June 29, 2016).[2] Petitioner did not file a notice of appeal and did not file a motion pursuant to 28 U.S.C. § 2255. Petition, ECF No. 1 at 2-5. Instead, Petitioner filed this Petition in the District Court for the Eastern District of North Carolina on March 15, 2019, and the case was transferred to this Court on August 27, 2019. Petitioner asks that his sentences be vacated with an order to correct the sentence and resentence him. Id. at 8. He argues that "[i]n light of the intervening changes in both the [Supreme Court] and Circuit levels, the petitioner's sentence is unlawfully being carried out and requires correction." Id. at 6. In his accompanying memorandum, Petitioner argues that "[i]n light of Descamps, Mathis, and Hemmigway [sic], the petitioner's South Carolina priors no longer qualify for predicates for enhancement purposes." Petitioner's Memorandum, ECF No. 1-1 at 5.

         As noted in the transfer order (ECF No. 4 at 2), Petitioner is in fact attacking the legality, rather than the execution of, his conviction and sentence. This action is therefore subject to summary dismissal because generally "it is well established that defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255," not through a petition filed pursuant to § 2241. Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citing In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997)). While a federal prisoner may file a § 2241 petition challenging his conviction if § 2255 is "inadequate or ineffective to test the legality of [his] detention;" In re Jones, 226 F.3d 328, 333 (4th Cir. 2000) (internal quotation marks omitted); see 28 U.S.C. § 2255(e); Petitioner has made no such showing in this case.

         In Wheeler, the Fourth Circuit held that § 2255 is inadequate or ineffective to test the legality of a sentence when:

(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. 2Ol8)(citing Jones, 226 F.3d at 333-34 (4th Cir. 2000)). In this case, there is no plausible allegation that the savings clause permits Petitioner to bring his claims under § 2241. As there is no indication that Petitioner has filed a § 2255 action with the sentencing court to permit it to review his claims for relief, Petitioner fails to meet the Wheeler test as he cannot establish that, subsequent to his first § 2255 motion, the "settled substantive law [that established the legality of his sentence] changed and was deemed to apply retroactively on collateral review," as required by the second prong of the test because he has not filed his first § 2255 motion. Accordingly, Petitioner cannot demonstrate that relief under § 2255 is "inadequate or ineffective."[3] Instead, a prisoner in federal custody must first proceed with a § 2255 motion before attempting to satisfy the "savings clause." See Hernandez v. Drew, 371 Fed.Appx. 991, 993 (11th Cir. Apr. 7, 2010)[noting that a prisoner may not circumvent the requirements for filing a § 2255 motion merely by filing a § 2241 petition.]; Dinkins v. Thomas. No. 8:15-490-RMG, 2015 WL 1877434, at *4 (D.S.C. April 23, 2015); Hackett v. Atkinson, No. 9:13-1274-JFA-BM, 2013 WL 3972393, at *3 (D.S.C. July 31, 2013).

         However, rather than dismiss this case, the undersigned recommends that in the interest of justice this § 2241 habeas petition be recharacterized as a motion to vacate, set aside, or correct Petitioner's sentence pursuant to 28 U.S.C. § 2255. See Castro v. United States, 540 U.S. 375, 381 (2003) ["Federal courts sometimes will ignore the legal label that a pro se litigant attaches to a motion and recharacterize the motion in order to place it within a different legal category .... to avoid an unnecessary dismissal...."]. Because the AEDPA's one-year statute of limitations in 28 U.S.C. § 2255(f)[4] may be an issue in this case, it is appropriate to recharacterize the Petition rather than dismiss it without prejudice because of the proximity of the running of the one-year time clock.[5]

         Finally, if this case is recharacterized as a § 2255 action, Petitioner is informed that any subsequent § 2255 motion will be subject to the restrictions on successive or second § 2255 motions set forth in 28 U.S.C. § 2255(h).[6] Therefore, if Petitioner does not wish to proceed under § 2255, he may withdraw this Petition by informing the Court in writing of his intent to voluntarily dismiss this action. See Fed.R.Civ.P. 41(a)(1)[prior to the entry of an answer or motion for summary judgment by the opposing party, an action may be voluntarily dismissed by filing a notice of dismissal]. Alternatively, if Petitioner wishes to proceed under § 2255, he may seek leave to amend the Petition so that it contains all of the § 2255 claims he wants to assert. See Castro, 540 U.S. at 383 [listing the notice requirements that must be provided to a petitioner prior to recharacterization]; United States v. Blackstock, 513 F.3d 128 (4th Cir. 2008).

         RECOMMENDATION

         Based on the foregoing, it is recommended that, after providing Petitioner with the proper notice and opportunity to respond as required by United States v. Castro, 540 U.S. 375 (2003), the Court recharacterize this § 2241 petition as a § 2255 case. Petitioner's attention is directed to the important notice on the next page.

         Notice of Right to File Objections to Report ...


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