Wolfe v. Warden

Filing 24

OPINION AND ORDER: The court finds Wolfe's objections are without merit and adopts the 20 Report and Recommendation. Accordingly, Respondent's motion to dismiss (ECF No. 12 ) is GRANTED, and the petition is DISMISSED. The court declines to issue a certificate of appealability. Signed by Honorable Timothy M Cain on 7/21/2017. (prou, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Joseph William Wolfe,
Petitioner,
v.
Warden, FCI-Edgefield,
Respondent.

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C/A No. 5:16-2449-TMC
OPINION & ORDER

This matter is before the court on Petitioner Joseph William Wolfe’s (“Wolfe”) 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 Rule 73.02(B)(2), D.S.C., all pre-trial proceedings were referred to a magistrate judge.
Magistrate Judge Kaymani D. West filed a Report and Recommendation (“Report”)
recommending Respondent’s motion to dismiss (ECF No. 12) be granted, and the petition
dismissed. (ECF No. 20). Wolfe was advised of his right to file objections to the Report (ECF
No. 20 at 9), and he filed timely objections (ECF No. 21).
The Magistrate Judge makes only a recommendation to the court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains with the
court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de
novo determination of those portions of the Report to which specific objection is made, and the
court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate
Judge, or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). However, the court need
not conduct a de novo review when a party makes only “general and conclusory objections that
do not direct the court to a specific error in the magistrate’s proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a
timely filed, specific objection, the Magistrate Judge’s conclusions are reviewed only for clear

error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
In her Report, the magistrate judge set out the procedural history and background and
Wolfe did not object to that portion of the Report. Briefly, on February 23, 2009, in the
Northern District of Texas, Wolfe was convicted of possession with intent to distribute 500
grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii). He
was sentenced to 235 month of imprisonment to be followed by five years of supervised release.
His sentence was later reduced to 188 months of imprisonment. On direct appeal, his conviction
and sentence were affirmed by the Fifth Circuit Court of Appeals. On February 11, 2011, he
filed a § 2255 habeas petition which was denied by the sentencing court and the Fifth Circuit
Court of Appeals affirmed the denial on February 25, 2015.
Wolfe is currently incarcerated in at the Federal Correctional Institution in Edgefield,
South Carolina. Wolfe filed this habeas action pursuant to § 2241 on July 7, 2016, raising a
claim of actual innocence. Specifically, he alleges he is actually innocent because the evidence
seized during his traffic stop should have been suppressed and “without that evidence, there was
no crime.” While acknowledging that his claim that the search of his car was unconstitutional
has been adjudicated by the Fifth Circuit Court of Appeals, Wolfe argues that was prior to the
decision of the Supreme Court in Rodriguez v. United States, 135 S.Ct. 1609 (2015).

In

Rodriguez, the Court held that extending a traffic stop by even a de minimis length of time
violates the Fourth Amendment. Id. at 1615-16. Wolfe also contends in his petition that the
savings clause of § 2255 is unconstitutionally vague and thus should not bar the court from
addressing his actual innocence claim.
The magistrate judge found that Wolfe’s claim does not satisfy the savings clause of §
2255, and the savings clause in § 2255 is not unconstitutionally vague. Further, the magistrate
judge found that Wolfe has failed to establish an actual innocence claim. The magistrate judge
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concluded that Wolfe’s petition is an improper attempt to circumvent the ADEDPA
requirements regarding §2255 petitions, and Wolfe has already had his arguments regarding an
alleged

improper seizure fully considered by the Fifth Circuit Court of Appeals. In his

objections, Wolfe argues that the magistrate judge erred in declining to find that the savings
clause of § 2255(e) is void for vagueness, and in regard to his actual innocence claim, he argues
that he has not had an opportunity to have his claim fully considered in any prior proceedings.
Although § 2241 provides a general grant of habeas corpus authority, the remedy under §
2241 is not an additional, alternative, or supplemental remedy to habeas relief provided for under
§ 2255. The “savings clause” contained in § 2255(e) allows a federal court to entertain a federal
prisoner's § 2241 habeas petition in the limited circumstances where the prisoner demonstrates
that the remedy in § 2255 “is inadequate or ineffective to test the legality of his detention.” 28
U.S.C. § 2255(e). To invoke the “savings clause,” a petitioner must establish: (1) at the time of
his conviction, the settled law of the circuit or the Supreme Court established the legality of his
conviction; (2) subsequent to his direct appeal and first § 2255 motion, the substantive law
changed such that the conduct of which he was convicted is now deemed not to be criminal; and
(3) he cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of
constitutional law. In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000).
Wolfe does not argue that he is incarcerated for an offense which is no longer a crime.
Wolfe argues that, based on the holding in Rodriquez, he is actually innocent. However, based
on Rodriquez, Wolfe cannot establish that the substantive law changed such that his conduct was
not deemed criminal. Wolfe’s reliance on the holding in Rodrique, at best, would have provided
support for the suppression of the evidence seized during a traffic stop. Wolfe's “Fourth
Amendment challenge does not go to the criminality of the conduct underlying his conviction;
rather, his suppression claim relates to the Government's ability to introduce certain evidence of
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his criminal actions at trial.” Simpson v. Masters, C/A No. 1:15-cv-03479, 2106 WL 2940082,
*3 (S.D. W.Va. April 6, 2016). Therefore, Wolfe cannot satisfy Jones. Moreover, Wolfe cites
no credible case law in support of his argument that the savings clause of § 2255(e) is void for
vagueness, and the few courts which have addressed the issue have held the savings clause is not
unconstitutional for vagueness. See, e.g., Hough v. Synder-Norris, C/A No. 0:16-cv-43-HRW,
2016 WL 3820562, *4 (E.D. Ky. July 12, 2016) (holding that the savings clause is not vague
and unconstitutional).1
As for Wolfe’s claim that he is factually innocent, the court agrees with the magistrate
judge that Wolfe has not shown factual innocence. Under Schlup, a petitioner may overcome a
procedural default or expiration of the statute of limitations by (1) producing “new reliable
evidence [of innocence] - whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence - that was not presented at trial,” Schlup v. Delo, 513
U.S. 298, 324 (1995); and (2) showing “that it is more likely than not that no reasonable juror
would have convicted him in light of the new evidence.” Id. at 327. The Schlup standard
permits review only in the “extraordinary” case. Id. at 324.2
The Supreme Court, however, has cautioned that “tenable actual-innocence gateway
pleas are rare.” McQuiggin, 133 S.Ct. at 1928. “[A] petitioner does not meet the threshold
requirement unless he persuades the district court that, in light of the new evidence, no juror,
acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id. (citing

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A statute defining an offense is void on the ground of vagueness and violative of due process
when the conduct prohibited or permitted is expressed in terms so vague that people differ as to its
application. Papachristou v. Jacksonville, 405 U.S. 156 (1972); United States v. Harris, 347 U.S. 612
(1954).
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The court notes that actual innocence is not, in and of itself, a cognizable habeas claim.
Herrera v. Collins, 506 U.S. 390, 404 (1993). Rather, actual innocence is “a gateway through which a
habeas corpus petitioner must pass to have his otherwise barred constitutional claim considered on the
merits. Id.
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Schlup, 513 U.S. at 329); see also House v. Bell, 547 U.S. 518, 538 (2006) (emphasizing that the
Schlup standard is demanding and seldom met).
To demonstrate actual innocence, a petitioner must identify “new reliable evidence whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence - that was not presented at trial.” Schlup, 513 U.S. at 324. That evidence
must demonstrate the “ ‘conviction of one who is actually innocent.’ ” Id. at 327 (quoting
Murray v. Carrier, 477 U.S. 478, 496 (1986)). Thus, a “petitioner must show that it is more
likely than not that no reasonable juror would have convicted him in the light of the new
evidence.” Id.
insufficiency.

Moreover, a petitioner must show factual innocence and not merely legal
Bousley v. United States, 523 U.S. 614, 623 (1998).

Finally, new reliable

evidence of innocence is a “rarity,” Calderon v. Thompson, 523 U.S. 538, 559 (1998), and the
quality of evidence necessary to support a claim of actual innocence “is obviously unavailable in
the vast majority of cases,” Schlup, 513 U.S. at 324. Here, Wolfe has not set forth any new
evidence that would establish his actual innocence and, in fact, Wolfe is not alleging factual
innocence.

Accordingly, his objection is without merit.

After a thorough review of the Report and the record in this case pursuant to the
standards set forth above, the court finds Wolfe’s objections are without merit and adopts the
Report. Accordingly, Respondent’s motion to dismiss (ECF No. 12) is GRANTED, and the
petition is DISMISSED.
A certificate of appealability will not issue absent "a substantial showing of the denial of
a constitutional right." 28 U.S.C. § 2253(c)(2). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find both that his constitutional claims are debatable
and that any dispositive procedural rulings by the district court are also debatable or wrong. See
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001).
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In the instant matter, the court finds that Petitioner has failed to make "a substantial showing of
the denial of a constitutional right." Accordingly, the court declines to issue a certificate of
appealability.
IT IS SO ORDERED.

s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
July 21, 2017

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