Rhodes v. Dobbs

Filing 20

ORDER denying 14 Motion for Bond and Expedited Review. Signed by Magistrate Judge Shiva V. Hodges on 7/16/2020. (lbak)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Clarence L. Rhodes,
Petitioner,
vs.
Warden Bryan K. Dobbs,
Respondent.

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C/A No.: 1:20-1725-JFA-SVH

ORDER

Clarence L. Rhodes (“Petitioner”), proceeding pro se and in forma
pauperis, filed this action seeking habeas corpus relief pursuant to 28 U.S.C.
§ 2241. This matter was referred to the undersigned for all pretrial
proceedings pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule
73.02(B)(2)(c) (D.S.C.). This matter is before the court on Petitioner’s motion
for bond and expedited review. [ECF No. 14]. For the reasons that follow,
Petitioner’s motion is denied.
I.

Factual and Procedural Background
On December 3, 2013, a federal grand jury returned an Indictment

charging Petitioner with the following: Count 1 – felon in possession of a
firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and
924(e); Count 2 – possessing with intent to distribute a quantity of cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and Count 3 –
possessing a firearm in furtherance of a drug-trafficking crime, in violation of

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18 U.S.C. § 924(c). Rhodes v. Dobbs, Cr. No. 0:13-1041-JFA (“Rhodes I”) at
ECF No. 3. A writ issued and Petitioner made his first appearance in federal
court on December 16, 2013. Id. at ECF Nos. 5, 6, 12, 14, 15, 18. After the
Government moved for detention, Petitioner waived his right to a detention
hearing and was ordered detained. Id. at ECF Nos. 15, 20. A plea agreement
was filed April 10, 2014, in which Petitioner agreed to plead to Count 1, the
felon-in-possession charge. The plea agreement contained paragraphs in
which the Government agreed to dismiss the remaining counts of the
indictment. The plea agreement also contained a forfeiture provision, a nonbinding recommendation to state authorities that Petitioner not be
prosecuted for any state crimes arising out of the same incident, a provision
in which Petitioner expressed satisfaction with his trial counsel, and a
paragraph in which Petitioner waived his rights to seek documents pursuant
to the Freedom of Information Act. Id. at ECF No. 42, ¶¶ 3, 5–9. Petitioner
entered his guilty plea on April 23, 2014. Id. at ECF Nos. 44–45. The district
court sentenced Petitioner to 120 months imprisonment and three years of
supervised release. Id. at ECF Nos. 53–56. The Judgment and Commitment
was filed September 9, 2014. Petitioner did not file a notice of appeal.
Petitioner filed this §2241 challenging his conviction under 18 U.S.C. §
922(g) in light of the Supreme Court’s opinion in Rehaif v. United States, 139
S. Ct. 2191 (2019) (holding to establish a violation of section 922(g), the

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government must prove the defendant had knowledge of the facts that made
his possession of a firearm or ammunition unlawful). On March 25, 2020, the
Fourth Circuit Court of Appeals issued its opinion in United States v. Gary.
The Court held Gary’s plea was not knowingly and intelligently made and the
district court’s error in accepting the plea without giving Gary notice of an
element of the § 922(g) offense was structural. Slip Op. at 2. The Fourth
Circuit denied en banc rehearing of the panel decision in Gary, but the
mandate has not issued.
II.

Discussion
A.

Bond

Petitioner argues he is entitled to bond pursuant to Fed. R. App. P. 23.
In the habeas context, release pending appeal is reserved for “extraordinary
cases involving special circumstances or a high probability of success.” Land

v. Deeds, 878 F.2d 318 (9th Cir. 1989). A prisoner seeking release from
custody under Rule 23 must demonstrate “not only a substantial claim of law
based on the facts surrounding the petition but also the existence of ‘some
circumstance making [the motion for bail] exceptional and deserving of
special treatment in the interests of justice.’” Dotson v. Clark, 900 F.2d 77,
79 (6th Cir. 1990) (quotations omitted); see also United States v. Perkins, 53
F. App’x 667 (4th Cir. 2002).

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In the present case, the district court has not issued a decision on
Petitioner’s habeas petition. Accordingly, Fed. R. App. P. 23 is not applicable,
as the case is not on appeal. See Martin v. Coakely, 2016 WL 4874364
(S.D.W.V. June 9, 2016) (“[A]s apparent from the language of the various
subsections of Rule 23, such rule is applicable only in the context of ‘a review
of a decision. . .’ See Fed. R. App. P. 23(b) and (c). Hence this rule ‘applies
only when a habeas action is before the court of appeals on review of a
district court's decision.’” (citing Mitchell v. McCaughtry, 291 F. Supp.2d 823,
835 (E. D. Wisc. 2003))). Therefore, because Fed. R. App. P. 23 is not
applicable to Petitioner, his motion for bond is denied.
B.

Expedited Review

Petitioner’s motion is also labeled as a motion for expedited review. The
court denies Petitioner’s request and will consider the petition in the normal
course. The court has many petitions based on the same grounds as the
instant case, many of which were filed prior to this one. As noted in the
opinion denying en banc proceedings “[m]any, many cases await the
resolution of this question.” Slip Op. at 2. Although Petitioner cites concerns
over COVID-19, he has presented no evidence of medical conditions showing
he is at greater risk of contracting the virus, or suffering more harmful
affects from the virus, as the many prisoners in the same position as
Petitioner. His request for expedited review is therefore denied.

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III.

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Conclusion
For the foregoing reasons, Petitioner’s motion for bond and expedited

review is denied.
IT IS SO ORDERED.

July 16, 2020
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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