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Holmes v. United States

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

September 25, 2019

Daniel Holmes, Movant,
v.
United States of America, Respondent.

          OPINION AND ORDER

          MARGARET B. SEYMOUR SENIOR UNITED STATES DISTRICT JUDGE.

         Daniel Holmes (“Movant”) is a federal inmate currently housed at FCI Estill in Estill, South Carolina. On May 5, 2017, Movant, proceeding pro se, filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence. ECF No. 228. This matter is before the court on a motion to dismiss filed by Respondent United States of America (the “government”) on July 7, 2017. ECF No. 235. By order filed July 10, 2017, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Movant was advised of the dismissal procedures and the possible consequences if he failed to respond adequately. Movant filed a response to the government’s motion on August 2, 2017, to which he filed a supplement on August 14, 2017. ECF Nos. 238, 239.

         I. FACTUAL AND PROCEDURAL HISTORY

         On April 14, 2004, a federal grand jury returned a two count Indictment charging Movant with conspiracy to distribute cocaine base and cocaine in violation of 21 U.S.C. § § 841(a)(1), (b)(1)(A), (b)(1)(C), and 846 (Count 1); and possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § § 924 (c)(1)(A) and (O) (Count 2). ECF No. 1. On May 3, 2007, a jury found Movant guilty of the offense charged in Count 1 and not guilty of the offense charged in Count 2. ECF No. 109. On May 8, 2007, Movant filed a pro se notice of appeal. ECF No. 112. On December 1, 2008, Movant’s counsel filed a second notice of appeal.[1]ECF No. 169. On December 4, 2008, Movant was sentenced by the Honorable Sol Blatt, Jr. to a term of imprisonment of life. ECF No. 170. The United States Court of Appeals for the Fourth Circuit issued a mandate affirming this court’s sentencing decision on June 22, 2010. ECF No. 195.

         On May 17, 2012, Movant filed a § 2255 motion, asserting that his trial and appellate counsel were ineffective. ECF No. 199. On May 29, 2012, the government filed a motion to dismiss or, in the alternative, for summary judgment. ECF No. 202. Judge Blatt granted summary judgment in favor of the government on May 2, 2013. ECF No. 207.

         President Obama commuted Movant’s sentence on November 4, 2016. ECF No. 250-2. Based upon this commutation, Movant’s release date, as calculated by the Bureau of Prisons, is July 29, 2022.[2] See https://www.bop.gov/inmateloc/ (accessed 9/17/19). Movant’s current § 2255 motion asserts that his post- clemency sentence failed to take into account the jail time that Movant already served. ECF No. 228 at 7.

         II. DISCUSSION

         The government contends that this court is without jurisdiction to consider Movant’s § 2255 motion due to President Obama’s grant of executive clemency. In United States v. Surratt, 855 F.3d 218 (4th Cir. 2017), the defendant moved under 28 U.S.C. § 2241 and 28 U.S.C. § 2255, asserting that he was entitled to relief under United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (holding that a predicate felony conviction for purposes of the Controlled Substances Act must be an offense punishable by imprisonment for a term exceeding one year) (citing Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (2010)). The district court determined that the defendant was not entitled to seek relief under the “savings clause” of § 2255, which permits a court to entertain a successive petition under § 2241 if it appears that the remedy available under § 2255 is inadequate or ineffective to test the legality of detention. Surratt, 855 F.3d 223-24. On appeal, the Fourth Circuit initially affirmed the district judge, but then vacated and granted a rehearing en banc. Before the Fourth Circuit made a final determination, President Barak Obama commuted Surratt’s sentence. The Fourth Circuit dismissed the appeal as moot. In a concurring opinion, Judge Wilkinson observed that the defendant was

no longer serving a judicially imposed sentence, but a presidentially commuted one. The President's commutation order simply closes the judicial door. Absent some constitutional infirmity in the commutation order, which is not present here, we may not readjust or rescind what the President, in the exercise of his pardon power, has done.
It matters not whether we believe the commutation was too lenient or not lenient enough. We are simply without power to inject ourselves into the lawful act of a coordinate branch of government-one that Surratt willingly agreed to-and supersede a presidential pardon or commutation with a contravening order of our own. After all, “[i]t would be a curious logic to allow a convicted person who petitions for mercy to retain the full benefit of a lesser punishment with conditions, yet escape burdens readily assumed in accepting the commutation which he sought.”

Id. at 219-20 (quoting Schick v. Reed, 419 U.S. 256, 267 (1974)).

         Judge Wynn dissented from the dismissal. Judge Wynn disagreed that the appeal was moot, and noted that

if we were to accord [the defendant] the relief that even the government concedes is fair by vacating [the defendant’s] sentence and remanding for resentencing, [the defendant] would likely be released because his time-served exceeds the upper end of his now-applicable Guidelines range. None of us disputes that. And, even under his commuted sentence, today’s dismissal of [the defendant’s] action as moot means [the defendant] will remain in prison for, at a minimum, several more years. None of us disputes that. It should therefore follow that the disposition of [the defendant’s] appeal will likely determine whether [the defendant] remains in prison ...

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