Hagen v. Warden FCI Williamsburg

Filing 19

ORDER RULING ON REPORT AND RECOMMENDATION: This Court finds the Magistrate Judge's Report and Recommendation (ECF No. 12 ) fairly and accurately summarizes the facts and applies the correct principles of law. Accordingly, the Court adopts the Report and Recommendation (ECF No. 12 ). Hagen's Petition is thus dismissed with prejudice. Signed by Honorable Joseph F Anderson, Jr. on 02/09/2018. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION

David A. Hagen,

C/A No.: 4:17-2567-JFA
Petitioner,

vs.

ORDER

Warden FCI Williamsburg,
Respondent.

I.

INTRODUCTION
David A. Hagen, (“Hagen” or “Petitioner”), proceeding pro se, is an inmate

incarcerated at a Federal Correctional Institution. Hagen filed the instant petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241. In accordance with 28 U.S.C. §
636(b) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the case was referred to the
Magistrate Judge.
The Magistrate Judge assigned to this action1 prepared a thorough Report and
Recommendation (“Report”) and opines that this Court should dismiss the Petition in this

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The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2)(c) (D.S.C.). The Magistrate Judge makes only a recommendation to this Court. The
recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a
de novo determination of those portions of the Report and Recommendation to which specific objection
is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the

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case without prejudice. (ECF No. 12). The Report sets forth, in detail, the relevant facts
and standards of law on this matter, and this Court incorporates those facts and standards
without a recitation.
The Court is charged with making a de novo determination of those portions of the
Report to which specific objections are made, and the Court may accept, reject, or
modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit
the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). However,
a district court is only required to conduct a de novo review of the specific portions of the
Magistrate Judge’s Report to which an objection is made. See 28 U.S.C. § 636(b); Fed. R.
Civ. P. 72(b); Carniewski v. W. Virginia Bd. of Prob. & Parole, 974 F.2d 1330 (4th Cir.
1992). In the absence of specific objections to portions of the Report of the Magistrate,
this Court is not required to give an explanation for adopting the recommendation. See
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
Petitioner was advised of his right to object to the Report, which was entered on
the docket on October 12, 2017. (ECF No. 12). Petitioner filed his objections to the
Report (“Objections”) on October 25, 2017. (ECF No. 17). Thus, this matter is ripe for
review.
II.

DISCUSSION
Hagen attempts to make several objections to the Report, most of which are

repetitions of Hagen’s assertions in his original Petition. Although vague, two of
Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. §
636(b).

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Petitioner’s assertions could be construed as definite enough to constitute an objection.
However, each of these objections is without merit.
A.

HAGEN’S 2241 PETITION DOES NOT SATISFY THE REQUIREMENTS OF 2255(E).
The crux of Hagen’s argument is that, in light of the Supreme Court’s decision in

United States v. Santos, 553 U.S. 507 (2008), his conviction for money laundering
“cannot stand and is illegal, nunc pro tunc.” (ECF No. 1 p. 10). As a threshold matter, the
Report states that Petition should have been filed pursuant to 28 U.S.C. § 2255 instead of
28 U.S.C. § 2241. (ECF No. 12 p. 2). However, “§ 2241 may be utilized by a federal
prisoner to challenge the legality of his or her conviction or sentence if he or she can
satisfy the mandates of the so-called § 2255 ‘savings clause.’” Reyes-Requena, v. U.S.,
243 F.3d 893, 901 (5th Cir. 2001). The “savings clause” provides the following:
An application for a writ of habeas corpus in behalf of a prisoner who is
authorized to apply for relief by motion pursuant to this section, shall not be
entertained if it appears that the applicant has failed to apply for relief, by
motion, to the court which sentenced him, or that such court has denied
him relief, unless it also appears that the remedy by motion is inadequate or
ineffective to test the legality of his detention.
28 U.S.C. § 2255(e) (emphasis added).
“[I] is well established that defendants convicted in federal court are obliged to
seek habeas relief from their convictions and sentences through § 2255.” Rice v. Rivera,
617 F.3d 802, 807 (4th Cir. 2010). “It is only when ‘§2255 proves inadequate or
ineffective to test the legality of detention,’ that a federal prisoner may pursue habeas
relief under § 2241.” Id. (quoting In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997). “[T]he
remedy afforded by § 2255 is not rendered inadequate or ineffective merely because . . .
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an individual is procedurally barred from filing a § 2255 motion.” Id. (quoting Vial, 115
F.3d at 1194 n.5) (internal quotations omitted).
The Fourth Circuit Court of Appeals provides the circumstances in which a § 2241
petition may be used to pursue habeas relief. See In re Jones, 226 F.3d at 328 (4th Cir.
2000). In Jones, the court held that Ҥ 2255 may be inadequate or ineffective in certain
circumstances,” and that, “under these limited circumstances, § 2255 is inadequate to test
the legality of the prisoner’s detention, and accordingly,” in these circumstances, “the
prisoner may file a habeas petition under § 2241.” Jones, 226 F.3d at 333. The court held
that:
§ 2255 is inadequate and ineffective to test the legality of a conviction
when: (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.
Id. at 333–34. The court formulated this test to provide a remedy for the “fundamental
defect presented by a situation in which an individual is incarcerated for conduct that is
not criminal but, through no fault of his own, has no source of redress.” Id. at 333 n.3.
Petitioner claims that the “except clause” in 28 U.S.C. § 2244(a) “permits this
Court to allow [him] to pass through the 2255(e) portal for consideration of the merits.”
(ECF No. 17 p. 3). Section 2244(a) provides the following:
No circuit or district judge shall be required to entertain an application for a
writ of habeas corpus to inquire into the detention of a person pursuant to a
judgment of a court of the United States if it appears that the legality of
such detention has been determined by a judge or court of the United States
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on a prior application for a writ of habeas corpus, except as provided in
section 2255.
28 U.S.C. § 2244(a) (emphasis added). Petitioner seems to claim that Section
2244(a) exempts him from the requirements of the savings clause in Section
2255(e). See (ECF No. 17 p. 3). The language of 2244(a), however, states that
Section 2255 governs those situations where a district judge may “required to
entertain an application for a writ of habeas corpus to inquire into the detention of
a person pursuant to a judgment of a court of the United States” and where “the
legality of such detention has been determined by a judge or court of the United
States on a prior application for a writ of habeas corpus.” Id. Thus, Section
2255(e) does, in fact, govern Hagen’s Petition, and In re Jones provides the
requirements which Hagen must satisfy for his Petition to be entertained. See
Jones, 226 F.3d at 333–34.
In his Petition, Hagen relies heavily on United States v. Santos, 553 U.S.
507 (2008) and asserts that his “money laundering convictions . . . must be
vacated.” (ECF No. 1 p. 10). The Report addresses this argument. (ECF No. 12 p.
2). As the Report states, the Santos opinion was issued before Hagen was
sentenced and before he filed his § 2255, and Hagen argued Santos in the
sentencing court. (ECF No. 12 p. 2). Hagen clearly fails to demonstrate that,
“subsequent to [his] direct appeal and first § 2255 motion, the substantive law
changed such that the conduct for which [he] was convicted [has been] deemed
not to be criminal.” Jones, 226 F.3d at 333–34. To the contrary, Hagen argued the
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Santos merger issue in his original § 2255 motion. See Hagen v. United States,
Nos. 3:13-cv-394-WEB, 3:08-cr-93-WEB-2, 2014 WL 3895062, at *7 (W.D.N.C.
Aug. 8, 2014). Therefore, Hagen’s argument is without merit.
B.

THE STANDARD OF REVIEW DOES NOT AFFECT HAGEN’S SITUATION.
Next, Hagen claims that the district court applied the incorrect standard of review

when it ruled on his § 2255. (ECF No. 17 p. 4–5). Specifically, Hagen claims that the
court should have applied an “actual innocence” or a complete miscarriage of justice”
standard of review instead of “ineffective assistance of counsel.” Id. However, in
addressing Hagen’s Santos claim, the court began its analysis with the following:
“Drawing on Santos, [Hagen] appears to contend that because the evidence at trial shows
that all of the proceeds from the two fraud-related conspiracies were used to pay expenses
to further those conspiracies, he cannot be guilty of the money laundering conspiracy in
addition to the other conspiracies.” Hagen, 2014 WL 3895062, at *7 (emphasis added).
Thereafter, in the same analysis, the court states that “a Santos merger problem
does not arise” in Hagen’s case. Id. The court concluded that “[w]ith no merger problem,
[Hagen] was not prejudiced by counsel’s failure to raise any argument or assert a defense
to Count Three based on Santos.” Id. at *8 (emphasis added). The court clearly concluded
that Hagen’s Santos merger argument had no merit. Therefore, Hagen’s argument that the
court applied an incorrect standard of review is without merit.

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III.

CONCLUSION
After carefully reviewing the applicable laws, the record in this case, as well as the

Report, this Court finds the Magistrate Judge’s Report and Recommendation (ECF No.
12) fairly and accurately summarizes the facts and applies the correct principles of law.
Accordingly, the Court adopts the Report and Recommendation (ECF No. 12). Hagen’s
Petition is thus dismissed with prejudice.2

IT IS SO ORDERED.

February 9, 2018
Columbia, South Carolina

2

Joseph F. Anderson, Jr.
United States District Judge

Respondent is not required to file a return.

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