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Boulb v. Vareen

United States District Court, D. South Carolina

September 30, 2019

Brian K. Boulb, Petitioner,
v.
Acting Warden Vareen, FCI Edgefield, Respondent.

          REPORT AND RECOMMENDATION

          Paige J. Gossett UNITED STATES MAGISTRATE JUDGE

         The petitioner, Brian K. Boulb, a self-represented federal prisoner, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.). Having reviewed the Petition in accordance with applicable law, the court concludes that it should be summarily dismissed for lack of jurisdiction.

         I. Factual and Procedural Background

         Petitioner, an inmate confined in the Federal Correctional Institution in Estill, South Carolina, pled guilty in the United States District Court for the Southern District of Illinois to conspiracy to manufacture fifty grams or more of methamphetamine; possession of pseudoephedrine knowing it would be used to manufacture methamphetamine; and possession of equipment, chemicals, or material to manufacture methamphetamine. (Pet., ECF No. 1-1 at 3-4.) Petitioner was sentenced to 235 months' imprisonment (which was later reduced to 157 months' imprisonment) and four years' supervised release on February 14, 2013. (Id.) His sentence was enhanced due to two prior Illinois state drug convictions. (Id.) In 2014, Petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, raising claims that his sentence was improperly enhanced because he was at that time still challenging in state court the validity of the 2008 state conviction used to enhance his sentence, and that he was not competent to enter a guilty plea based on an intellectual disability. (Id. at 5-6.) The Southern District of Illinois dismissed Petitioner's § 2255 motion because it was untimely. (Id. at 6.)

         He now files this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking to be resentenced. (Id., ECF No. 1 at 7.) He argues that because his 2008 state drug conviction has now been overturned, his federal sentence was improperly enhanced. (ECF No. 1 at 6.) He also argues that his federal guilty plea was improper because his lawyer failed to produce his mental health records showing that he had an intellectual disability and paranoid schizophrenia, which also affected his ability to timely file his § 2255 motion. (Id.) He asks to be resentenced. (Id. at 7.)

         II. Discussion

         A. Standard of Review

         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 Rules Governing § 2254 Cases, [1] 28 U.S.C. § 2254; the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214; 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) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).

         This court is required to liberally construe pro se pleadings, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).

         B. Analysis

         A petitioner cannot challenge his federal conviction and sentence through § 2241 unless he can show under the “savings clause” of § 2255(e) that a § 2255 motion is “inadequate or ineffective to test the legality of his detention.” See 28 U.S.C. § 2255(e); see also Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (providing that if a federal prisoner brings a § 2241 petition that does not fall within the scope of the savings clause, the district court must dismiss the unauthorized habeas petition for lack of jurisdiction). The United States Court of Appeals for the Fourth Circuit has held that a petitioner must establish the following criteria to demonstrate that a § 2255 motion is inadequate or ineffective to test the legality of a prisoner's conviction:

(1) at the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law.

United States v. Wheeler, 886 F.3d 415, 427 (4th Cir. 2018). Similarly, when the petitioner challenges the legality of his sentence, the Fourth Circuit provides the following test:

(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 ...

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