Wilborn v. Joyner
Filing
29
ORDER adopting Report and Recommendations re 15 Report and Recommendation; denying 27 Motion and affirming 13 Order. Signed by Honorable David C Norton on November 8, 2018.(kwhe, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
DON MITCHELL WILBORN,
Petitioner,
v.
H. JOYNER, Warden,
Respondent.
)
)
)
)
)
)
)
)
)
)
No. 0:18-cv-01565-DCN
ORDER
This matter is before the court on Magistrate Judge Paige J. Gossett’s Order
(“Order”) construing petitioner Don Mitchell Wilborn’s (“petitioner”) motion requesting
reassignment as a request to recuse and denying the motion, ECF No. 15, and her Report
and Recommendation (“R&R”) that recommends this court deny petitioner’s writ of
habeas corpus petition pursuant to 28 U.S.C. § 2241, ECF No. 27. For the reasons set
forth below, the court affirms the Order, adopts the R&R, and denies the petition.
I. BACKGROUND
Petitioner pleaded guilty to conspiracy to possess with intent to distribute
methamphetamine in the United States District Court for the Northern District of
Alabama. ECF No. 10-1 at 2. He was sentenced under 21 U.S.C. § 841(b)(1)(A) to 240
months’ imprisonment and sixty months’ supervised release. Id. at 3. Petitioner’s
sentence was calculated using, in part, drug quantities from dismissed charges. Id.
The R&R recounts the procedural background of petitioner’s case. ECF No. 15 at
1-1. Petitioner’s only objection to this portion of the R&R relates to its conclusion about
1
the other petitioner, Wendel Robert Wardell, Jr. (“Wardell”), 1 with whom petitioner filed
his objections. ECF No. 27 at 5.
Petitioner now seeks to have his sentence vacated pursuant to 28 U.S.C. § 2241.
Petitioner filed his habeas petition on June 7, 2018 and then filed an amended petition on
July 25, 2018. Then petitioner filed a motion for random re-assignment of his case on
July 30, 2018, and the magistrate judge construed the motion as a request to recuse and
denied it on August 3, 2018. On the same day, the magistrate judge issued her R&R
recommending that petitioner’s habeas petition be dismissed. The court granted
petitioner’s request for an extension of time to file objections to the R&R on August 28,
2018. Petitioner filed his objections as joint objections with Wardell on September 13,
2018. No response has been filed.
II. STANDARDS OF REVIEW
A. Review of Magistrate’s Order
Magistrate judges have “the authority to hear and determine any pretrial matter
pending before the court” except for dispositive motions. United States v. Benton, 523
F.3d 424, 430 (4th Cir. 2008). A party may object to a magistrate judge’s order on a
nondispositive matter within 14 days of service of the order. Fed. R. Civ. Pro. 72(a).
The district court reviews such orders for clear error. 28 U.S.C. § 636(b)(1)(A); Springs
v. Ally Fin. Inc., 657 F. App’x 148, 152 (4th Cir. 2016).
1
Wardell’s case, 18-cv-1566, is also before this court.
2
B. R&R
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made, and may accept,
reject, or modify, in whole or in part, the recommendations contained in that report. 28
U.S.C. § 636(b)(1). The magistrate judge’s recommendation does not carry presumptive
weight, and it is the responsibility of this court to make a final determination. Mathews
v. Weber, 423 U.S. 261, 270–71 (1976). A party’s failure to object may be treated as
agreement with the conclusions of the magistrate judge. See Thomas v. Arn, 474 U.S.
140, 150 (1985).
C. Pro Se Plaintiff
Petitioner is proceeding pro se in this case. Federal district courts are charged
with liberally construing complaints filed by pro se litigants to allow the development of
a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9–10 (1980). Pro se
complaints are therefore held to a less stringent standard than those drafted by attorneys.
Id. Liberal construction, however, does not mean that the court can ignore a clear failure
in the pleading to allege facts that set forth a cognizable claim. See Weller v. Dep’t of
Soc. Servs., 901 F.2d 387, 390–91 (4th Cir. 1990).
III. DISCUSSION
Petitioner raises several objections to the Order and the R&R. With regard to the
Order, petitioner objects to the magistrate judge’s construction of his motion for random
reassignment as a request to recuse. He alleges that the magistrate judge “mishandle[ed] .
. . the motion for reassignment in direct violation of the local rules and/or Federal Rules
of Civil Procedure.” ECF No. 27 at 2. With regard to the R&R, petitioner first objects to
3
the magistrate judge’s failure to provide copies of the unpublished cases cited in her
R&R. Id. Next petitioner objects to the R&R’s conclusion that his petition should be
summarily dismissed based on (1) its analysis of Nelson v. Colorado, 137 S. Ct. 1249
(2017), id. at 9; and (2) its unwillingness to apply Johnson v. United States, 135 S. Ct.
2551 (2015) and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), to his sentence, id. at 20.
A. Order on Motion for Reassignment
Petitioner first argues that the magistrate judge erred in construing his motion for
random reassignment as a request to recuse. Relevant to his argument is the fact that the
magistrate judge denied petitioner’s previous habeas petition in 2016. ECF No. 27 at 4;
Wilborn v. Mansukhani, 16-cv-1134. Here, petitioner claims that the Order ignored
Local Civ. Rule 73.02(C)(1)(f) and (g) (D.S.C.), which require that federal prisoner cases
challenging confinement be assigned to magistrate judges on a rotational basis, and
related cases be assigned to the same magistrate judge. ECF No. 27 at 2–3. Petitioner
then asserts that to “contrary to [the rules] above,” Local Civ. Rule 73.02(C)(6) (D.S.C.)
requires new cases filed by pro se litigants with prior cases to be assigned to the same
magistrate judge and district judge who heard their prior cases. Id. at 3. Petitioner
appears to be arguing that his case should have been assigned on a rotational basis to a
different magistrate judge per Rule 73.02(C)(1)(f), instead of to the same magistrate
judge who heard his prior case per Rule 73.02(C)(6). Moreover, petitioner claims that
once his motion was construed as a motion to recuse, a district judge should have heard
the motion. Id. at 4. Finally, petitioner claims that the magistrate judge “knowingly, and
intentionally, ignored her legal responsibilities to avoid an appearance of bias.” Id.
4
The magistrate judge construed petitioner’s motion as a request for recusal and
found no basis for recusal. She explained that petitioner’s disagreement with her prior
rulings and “unsupported allegations of bias” were not sufficient to warrant recusal. ECF
No. 13 at 3.
Under the clear error standard, a district court “may not reverse [a magistrate
judge’s order] simply because it would have decided the case differently. Rather, a
reviewing court must ask whether . . . it is left with the definite and firm conviction that a
mistake has been committed.” DietGoal Innovations LLC v. Wegmans Food Markets,
Inc., 993 F. Supp. 2d 594, 600 (E.D. Va. 2013) (quoting United States v. Wooden, 693
F.3d 440, 451 (4th Cir. 2012)). Petitioner’s motion asserts that the magistrate judge
ha[s], previously, been unwilling, as a matter of conscience, to apply the
applicable Rules of Civil Procedure to proceedings which displays a
clear inability to render fair judgment. Moreover, as evidenced by the
current appeal, the assigned . . . Magistrate Judge ha[s] been unwilling
to follow the applicable law and Rules of Civil Procedure.
ECF No. 10 at 2–3. It was not clearly erroneous for the magistrate judge to interpret this
language as a request for recusal. After a thorough review of the record and the Order,
the court finds no clear error and therefore affirms the Order.
B. Failure to Provide Copies of Cases
Next, petitioner objects to the fact that the magistrate judge relied up on and cited
unpublished cases in her R&R but did not provide copies to petitioner. Petitioner relies
on Local Civ. Rule 7.05 (D.S.C.), which requires parties to attach copies of unpublished
decisions to memoranda filed with the court. However, this rule applies to parties before
the court, not the court itself. Rule 7.05 is found in the section titled “Pleadings Allowed:
Forms of Motions.” Local Civ. Rule 7.04 (D.S.C.) explains that “[a]ll motions made . . .
shall be timely filed with an accompanying supporting memorandum that shall be filed
5
and made part of the public record.” Rule 7.05, titled “Form and Content of
Memoranda,” subsequently contains the requirement that parties attach unpublished
decisions to their memoranda. Read in context, this rule applies to parties filing
pleadings, not to the court issuing orders. Therefore, the court finds that the magistrate
judge was not required to attach the unpublished cases on which she relied.
C. Dismissal of Petition
Petitioner also objects to the R&R’s ultimate conclusion that his petition should
be dismissed. Petitioner argues that the magistrate judge erred in finding that: (1) Nelson
does not provide relief for petitioner; and (2) the statute under which petitioner was
sentenced is not unconstitutionally vague, meaning Dimaya and Johnson do not render
petitioner’s sentence illegal.
1. Section 2255 Savings Clause
“[I]t is well established that defendants convicted in federal court are obliged to
seek habeas relief from their convictions and sentences through [28 U.S.C.] § 2255.”
Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010). When a federal prisoner is barred
from seeking habeas relief through § 2255, he may still seek a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 through § 2255’s saving clause, which is available when a §
2255 motion “proves inadequate or ineffective to test the legality of . . . detention.” In re
Jones, 226 F.3d 328, 333 (4th Cir. 2000). In order to show that § 2255 is inadequate or
ineffective to test the legality of detention, a petition must show:
(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
6
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 magistrate judge concluded petitioner cannot meet the second requirement of
Wheeler because Nelson, Dimaya, and Johnson do not affect petitioner’s sentence. ECF
No. 15 at 3–4. Petitioner objects to this conclusion and contends that these cases do
impact his sentence. The court discusses each of petitioner’s arguments in turn.
2. Effect of Nelson v. Colorado on Petitioner’s Sentence
Petitioner claims that his “sentence[] [was] improperly enhanced based on
acquitted, dismissed, and/or uncharged conduct.” ECF No. 27 at 6. He argues that the
Supreme Court’s reasoning in Nelson, a case related to acquitted conduct, extends to his
sentence, meaning he “cannot be held criminally liable for the uncharged drugs” that
were considered in his sentencing. Id. at 10. The magistrate judge concluded that Nelson
did not affect petitioner’s sentence, and as such, § 2255’s savings clause could offer
petitioner no relief. ECF No. 15 at 3–4.
In Nelson, the Supreme Court held that when a defendant’s criminal conviction is
subsequently invalidated, the state may not require the defendant to prove her innocence
in order to receive a refund of fees, court costs, and restitution paid as a consequence of
the conviction. 137 S. Ct. at 1252. The petitioners in Nelson were convicted of various
charges in Colorado and paid fees, court costs, and restitution as a result of their
convictions. Id. at 1252–53. One petitioner was subsequently acquitted of all charges on
retrial, and the other’s convictions were either reversed or vacated. Id. at 1253. A
Colorado law required a petitioner to “show, by clear and convincing evidence, her actual
innocence of the offense of conviction” to be refunded any money paid as a result of the
7
invalid conviction. Id. at 1254. The petitioners challenged this law, and the Supreme
Court subsequently found that the law “does not comport with due process.” Id. at 1255.
Of relevance here, the Court explained that once the petitioners’ convictions were
invalidated, “the presumption of their innocence was restored.” Id. As such, Colorado
could not presume a person innocent of a crime and then find her “guilty enough for
monetary exactions.” 137 S. Ct. at 1256. (emphasis added).
Petitioner takes this language from Nelson and applies it to sentence
enhancements to argue that “‘once . . . the presumption of . . . innocence [i]s restored,’ a
state ‘may not presume a person, adjudged guilty of no crime, nonetheless guilty enough
for [enhancements to apply].’” ECF No. 27 at 11 (emphasis added) (quoting Nelson, 137
S. Ct. at 1256). Applying Nelson’s reasoning, petitioner asserts that evidence of
dismissed charges cannot be used to calculate his sentence because petitioner is presumed
innocent of that conduct. Id. Considering dismissed charges when calculating his
sentence, petitioner argues, “eviscerates the presumption of innocence.” Id.
Petitioner’s argument fails because he cannot properly analogize monetary
penalties with sentence enhancements. Monetary penalties are punishment, while the
Supreme Court has held that sentence enhancements are not. Witte v. United States, 515
U.S. 389, 400–01 (1995). Therefore, petitioner cannot equate monetary penalties and
sentence enhancements, and Nelson does not extend as far as petitioner contends it does.
Petitioner points to United States v. Brooks, 872 F.3d 78 (2nd Cir. 2017), as a case that
extends Nelson’s reasoning. ECF No. 27 at 9. However, while the reasoning is extended
to a factually different situation, it still applies in the context of monetary penalties, not
sentencing enhancements. In Brooks, the Second Circuit held that when a defendant dies
8
during his appeal, “the reasoning of Nelson [] compels abating monetary penalties”
because “there is no longer a valid conviction to support the government’s retention of
the penalty.” 872 F.3d at 89 (citation omitted). The Second Circuit does not go so far to
extend the reasoning of Nelson beyond monetary penalties.
Petitioner also argues that Nelson “effectively overrules United States v. Watts,
519 U.S. 148 (1997).” ECF No. 27 at 9. In Watts, , the Supreme Court held that a
sentencing court may consider “conduct underlying [an] acquitted charge, so long as that
conduct has been proved by a preponderance of the evidence.” 519 U.S. at 157. As
discussed above, sentencing is a separate and distinct concept from monetary penalties,
and as such, the same principles that apply to one cannot apply to the other. Therefore,
Nelson did not affect the holding in Watts.
Moreover, nowhere in Nelson does the Supreme Court discuss or even mention
Watts. The court cannot find that the Supreme Court overruled itself when it did not
explicitly do so. See United States v. Hatter, 532 U.S. 557, 567 (2001) (“[I]t is [the
Supreme Court]’s prerogative alone to overrule one of its precedents.”). Moreover, many
lower courts agree that Nelson does not overrule Watts. See United States v. Tegeler,
309 F. Supp. 3d 728, 732 (D. Neb. 2018) (“Because Nelson obviously does not expressly
invalidate Watts, this Court must follow Watts until the Supreme Court says otherwise.”);
Minor v. Coakley, 2018 U.S. Dist. LEXIS 173492, at *7 (N.D.W. Va. Oct. 9, 2018)
(“The magistrate judge is correct that the petitioner misinterprets the opinion[,] and his
assertion that Nelson overrules United States v. Watts, 519 U.S. 148 (1997), is
misplaced.”); Lewis v. Mosely, 2018 U.S. Dist. LEXIS 89955, at *8 (D.S.C. May 9,
2018), adopted and incorporated by 2018 U.S. Dist. LEXIS 89021 (D.S.C. May 29, 2018)
9
(“There is no indication upon review of cases giving negative treatment to U.S. v. Watts
that any case has overruled U.S. v. Watts, much less Nelson. Additionally, Nelson makes
no reference to Watts whatsoever.”). Therefore, the court adopts the R&R’s analysis and
finds that Nelson does not affect petitioner’s sentence. As such, petitioner cannot meet
the second requirement of § 2255’s savings clause with regard to his Nelson argument. 2
3. Effect of Sessions v. Dimaya and Johnson v. United States on
Petitioner’s Sentence
Petitioner also argues that his sentence is affected by the Supreme Court’s voidfor-vagueness analysis in Dimaya and Johnson. Petitioner was sentenced under 21
U.S.C. § 841, which mandates a life sentence for a defendant with two prior convictions
of a “felony drug offense,” and 21 U.S.C. § 851. 3 ECF No. 27 at 20. Petitioner claims
that “felony drug offense,” as defined in 21 U.S.C. § 802(44), is unconstitutionally vague,
and as such, petitioner “should not have faced a life mandatory minimum sentence” when
sentenced under 21 U.S.C. § 841. ECF No. 10-1 at 5. The magistrate judge found that
because petitioner was not sentenced under either of the statutes at issue in Dimaya and
2
Petitioner also makes a one-sentence argument that he is “‘actually innocent,’
thus allowing [him] to proceed under the ‘savings clause.’” ECF No. 27 at 21. However,
whether petitioner is “actually innocent” makes no impact on the court’s analysis or
holding. A claim of actual innocence is only relevant to the statute limitations under the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). McQuiggin v.
Perkins, 569 U.S. 383, 392–93 (2013). McQuiggin held that actual innocence may
overcome the one-year statute of limitations on habeas petitions, allowing a petitioner
who is actually innocent to file a habeas petition after the statute of limitations expired.
Id. at 386. But a § 2241 habeas petition, like the one considered here, is not subject to the
AEDPA’s one-year statute of limitation. See Morales v. Bezy, 499 F.3d 668, 672 (7th
Cir. 2017) (“[T]here is no statute of limitations applicable to a federal prisoner’s filing a
section 2241 petition.”). As such, there is no issue as to whether a statute of limitations
bars petitioner’s petition, meaning whether the petitioner is “actually innocent” is
irrelevant.
3
The term “felony drug offense,” which is the basis of petitioner’s argument,
does not appear in 21 U.S.C. § 851. As such, the court will only discuss 21 U.S.C. § 841.
10
Johnson, the cases did not render petitioner’s sentence illegal, and § 2255 afforded him
no relief. ECF No. 15 at 4.
The Supreme Court has recently found several clauses in federal sentencing laws
that define terms related to violent crimes to be unconstitutionally vague. In Johnson, the
Supreme Court held that the definition of the term “violent felony” in the residual clause
of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B), was
unconstitutionally vague. 135 S.Ct. at 2557. The residual clause defined a violent felony
as a crime that “involves conduct that presents a serious potential risk of physical injury
to another.” Id. at 2555–56. Because the definition left uncertain “how to estimate the
risk posed by a crime” and “how much risk it takes for a crime to qualify as a violent
felony,” the Court held that “the residual clause produced more unpredictability and
arbitrariness than the Due Process Clause tolerates.” Id. at 2557–58.
Similarly, in Dimaya, the Court held the Immigration and Nationality Act’s
(“INA”) residual clause’s use of the term “aggravated felony,” 8 U.S.C. §
1227(a)(2)(A)(iii), which incorporated 18 U.S.C. § 16(b)’s definition of “crime of
violence,” to be unconstitutionally vague. 138 S. Ct. at 1210–11. The term “crime of
violence” is defined in part as a crime that “involves a substantial risk that physical force
against the person or property of another may be used in the course of committing the
offense.” Id. at 1211. Relying on its analysis in Johnson, the Dimaya Court explained
that the language in this residual clause produced the same result as the language in the
ACCA’s residual clause—“more unpredictability and arbitrariness than the Due Process
Clause tolerates.” Id. at 1216 (quoting Johnson, 135 S. Ct. at 2558). As such, the Court
held the clause to be unconstitutional. Id. at 1223.
11
Here, petitioner was sentenced under 21 U.S.C. § 841(b)(1). ECF No. 27 at 20.
The magistrate judge correctly concluded that petitioner was not sentenced under the
statutes at issue in Johnson and Dimaya. ECF No. 15 at 4. As a result, the holdings from
those cases do not render petitioner’s sentence illegal. In addition, Johnson and Dimaya
involved definitions of “violent felony” and “crime of violence” and did not relate to drug
offenses. The law and principles related to violent crimes are simply different than the
law and principles related to drug offenses. As such, the holdings in Johnson and
Dimaya do not apply the term “felony drug offense.” Petitioner cites no case law that
extends Johnson and Dimaya to 21 U.S.C. § 841(b)(1), and the court was unable to find
any such case law. Therefore, petitioner cannot meet the second requirement of § 2255’s
savings clause with regard to his void-for-vagueness argument.
IV. CONCLUSION
For the foregoing reasons, the court AFFIRMS the Order and ADOPTS the
R&R. The court therefore DISMISSES the petition, consistent with the R&R.
AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
November 8, 2018
Charleston, South Carolina
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?