Rahim v. Joyner

Filing 52

ORDER adopting 47 Report and Recommendations of Magistrate Judge Bristow Marchant. The court accepts the Magistrate Judge's Report and Recommendation (ECF No. 47), grants Respondent Warden Joyner's Motion to Dismiss for lack of jurisdiction (ECF No. 31), and dismisses Petitioner Ras Rahim's Petition for Writ of Habeas Corpus (ECF No. 1) without prejudice. Signed by Honorable J Michelle Childs on 02/10/2020. (egra, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Ras Rahim,

)
)
Petitioner,
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v.
)
)
Warden Joyner,
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)
Respondent.
)
____________________________________)

Civil Action No. 9:17-cv-00961-JMC

ORDER AND OPINION

Petitioner Ras Rahim, proceeding pro se, filed for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241 (2008) (“Habeas Petition”). (ECF No. 1.) The matter before the court is a review of
the Magistrate Judge’s Report and Recommendation (“Report”). (ECF No. 47.) For the reasons
stated below, the court ACCEPTS the Report (ECF No. 47), GRANTS Respondent Warden
Joyner’s Motion to Dismiss for lack of jurisdiction (ECF No. 31), and DISMISSES Petitioner Ras
Rahim’s Habeas Petition (ECF No. 1) without prejudice.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Report sets forth the relevant facts and legal standards, which the court incorporates
herein without a full recitation. (ECF No. 47.) Petitioner’s case history is provided by the United
States Court of Appeals for the Eleventh Circuit, as follows:
On July 8, 2003, Rahim entered a SouthTrust bank branch in Cartersville, Georgia,
brandished a firearm, and demanded that a teller put the money from her cash
drawers into a bag. The teller placed into the bag, along with the $4700, several
security devices that contained red dye and tear gas and were designed to explode
soon after Rahim left the bank. After Rahim left the bank and began to drive away,
the dye packs exploded. Rahim abandoned the car and ran into a store near the bank.
Rahim demanded that Hazel King, an employee of the store, give him the keys to
her car. King complied, but Rahim held a gun to her head and ordered her to
accompany him and drive the car. After Cartersville police officers, who had
responded to the report of the bank robbery, shot the tires of the car, King was able
to drive a short distance before the damage to the tires forced her to stop the car.
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While Rahim continued to hold King at gunpoint, they abandoned the car and fled
to a wooded area. The police surrounded them, and a standoff ensued. Rahim
suddenly ordered King to lie on the ground and began to fire at the officers. A sniper
shot Rahim in the head, which ended the confrontation, but Rahim survived.
(ECF No. 47 at 2–3 (citing United States v. Rahim, 431 F.3d 753, (11th Cir. 2005)).)
Petitioner was charged and convicted in the United States District Court for the Northern
District of Georgia of armed bank robbery, 18 U.S.C. § 2113 (2002), carjacking,18 U.S.C. § 2119
(1996), and two counts of using a firearm during a crime of violence, 18 U.S.C. § 924(c) (2018).
(Id. at 3.) On February 24, 2005, he was sentenced to a total of 481 months of imprisonment. (Id.)
Petitioner is currently incarcerated at Federal Correctional Institution Estill in Estill, South
Carolina. (Id. at 1.) Petitioner filed his Habeas Petition on April 13, 2017. (ECF No. 1.) On
September 20, 2017, the court dismissed Petitioner’s initial Habeas Petition without prejudice and
without requiring Respondent to file a return. (ECF No. 10) On February 27, 2019, the court
granted Petitioner’s Motion for Leave to Supplement and for relief from the Judgment, ordering
Petitioner’s amended Habeas Petition to be served on May 2, 2019. (ECF No. 47 at 1 (citing ECF
Nos. 14, 22-1).)
In his present Habeas Petition, Petitioner requests immediate release or to be resentenced
within recalculated guidelines. (ECF No. 1.) Petitioner contends that: “(1) Section 2113(a)(3)
‘bank robbery’ does not qualify as a ‘crime of violence’ for Section 924(c) purposes under the
elements clause”; (2) “Section 2119 carjacking is not a crime of violence for Section 924(c)
purposes”; and (3) “Count 4 of Petitioner’s indictment Section 924(c)(1)(A) and Section
924(c)(1)(A)(iii) have mandatory minimum terms of ten (10) years, not twenty-five (25) years,
such that the court incorrectly sentenced him which constitutes a Fifth Amendment due process
violation.” (ECF No. 47 at 6 (citing ECF No. 1 at 8–9).) Respondent filed a Motion to Dismiss for
lack of subject matter jurisdiction on July 8, 2019. (ECF No. 31.) The Magistrate Judge issued a
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Report on August 6, 2019, recommending that the court grant Respondent’s Motion to Dismiss.
(ECF No. 47.) Petitioner timely filed objections to the Report on August 16, 2019. (ECF No. 49.)
II. LEGAL STANDARD
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local
Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a
recommendation to this court, which has no presumptive weight. The responsibility to make a final
determination remains with this court. See 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 objections are made. See Diamond v. Colonial Life and Acc. Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005). “[I]n the absence of a timely filed objection, a district court need not conduct a de
novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record
in order to accept the recommendation.’” Id. (quoting Fed. R. Civ. P. 72 advisory committee’s
note). Furthermore, failure to file specific written objections to the Report results in a party’s
waiver of the right to appeal from the judgment of the District Court based upon such
recommendation. See 28 U.S.C. § 636(b)(1); see also Thomas v. Arn, 474 U.S. 140 (1985). Thus,
the court may accept, reject, or modify, in whole or in part, the Magistrate Judge’s recommendation
or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
The court is required to interpret pro se documents liberally and will hold those documents
to a less stringent standard than those drafted by attorneys. See Gordon v. Leeke, 574 F.2d 1147,
1151 (4th Cir. 1978); see also Hardin v. United States, C/A No. 7:12–cv–0118–GRA, 2012 WL
3945314, at *1 (D.S.C. Sept. 10, 2012). Additionally, pro se documents must be construed in a
favorable manner, “no matter how inartfully pleaded, to see whether they could provide a basis for
relief.” Garrett v. Elko, No. 95-7939, 1997 WL 457667, at *1 (4th Cir. Aug. 12, 1997). Yet, even

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though pro se documents are liberally construed by federal courts, “[t]he ‘special judicial
solicitude’ with which a district court should view pro se complaints does not transform the court
into an advocate.” Weller v. Dep’t of Soc. Servs. for Balt., 901 F.2d 387, 391 (4th Cir. 1990).
III. DISCUSSION
Petitioner’s objections largely rehash his earlier arguments, which he concedes: “Petitioner
may have attempted to raise similar claims previously, [but] Petitioner has never had his due
process claim heard by a court. It is a meritorious claim that deserves attention.” (ECF No. 49 at
4.) Generally, a party’s objection to a magistrate judge’s report must be “specific and
particularized” in order to facilitate review by a district court. United States v. Midgette, 478 F.3d
616, 621 (4th Cir. 2007). “An ‘objection’ that does nothing more than state a disagreement with a
magistrate’s suggested resolution, or simply summarizes what has been presented before, is not an
‘objection’ as that term is used in this context.” Aldrich v. Bock, 327 F. Supp. 2d 743, 747 (E.D.
Mich. 2004). Thus, a de novo review is wholly unnecessary for a district court to undertake when
a party seeks to rehash general arguments that were already addressed in a magistrate judge’s
report. See Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982); see also Anderson v. Dobson, 627
F. Supp. 2d 619, 623 (W.D.N.C. 2007) (“An ‘objection’ that . . . simply summarizes what has been
presented before, is not an ‘objection’ as that term is used in this context.” (citation and quotations
marks omitted)). To the extent Petitioner proffers specific objections to the Report, the court
provides the following reasoning for its decision.
A. Petitioner’s Objections
Petitioner objects to the Report because he “is currently confined in the special housing
unit, pending transfer, and lack[s] access to do sufficient legal research. Nonetheless . . . it appears
that the First Step Act assists [Petitioner]. . . .” (ECF No. 49 at 2.) Moreover, Petitioner claims that

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“the simple carjacking definition is too broad to allow [Section] 924(c) to be attached.” (Id. at 3.)
B. The Court’s Review
The Report provides: “[a]s Respondent correctly points out, [Petitioner’s] current [Section]
2241 claims are nearly identical to ones he has previously made in his prior post-conviction
motions” to the United States Court of Appeals for the Eleventh Circuit. (ECF No. 47 at 5.)
“Therefore, Petitioner cannot challenge his federal conviction and sentence under [Section] 2241
unless he can satisfy the [Section] 2255 savings clause . . . .” (Id. at 6.)
Here, the Magistrate Judge relied on the United States Court of Appeals for the Fourth
Circuit Court’s three-part test to determine whether a petition challenging the lawfulness of a
conviction can be brought under Section 2241:
Section 2255 is inadequate and ineffective to test the legality of a conviction when:
(1) at the time of the 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 Section 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 Section 2255 because the
new rule is not one of constitutional law. (ECF No. 47 at 6.) re Jones, 226 F.3d 328,
333–34 (4th Cir. 2000).4 This test was formulated expressly 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, he has
no source of redress.” Id. at 333 n. 3. Petitioner’s claims fail to satisfy these
requirements.
(Id. at 6–7.)
After Petitioner filed the present Habeas Petition, the United States Supreme Court recently
declared Section 924(c)(3)(B)’s residual clause to be unconstitutionally vague, United States v.
Davis, 2019 WL 2470623 (2019), and the Eleventh Circuit subsequently decided that a petitioner
may proceed with a Davis claim under Section 2255. (See id. at 7–8 (citing In re Cannon, No. 1912533-F, 2019 WL 3334766, at *3 (11th Cir. July 25, 2019)).) However, the Magistrate Judge notes
that the Eleventh Circuit determined that “carjacking” remained a violation of Section 2119 and
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qualified as a predicate offense without relying on Section 924(c)(3)(B)’s void residual clause, and
that “the Eleventh Circuit’s reasoning in In re Cannon also applies to Petitioner’s claim under
Davis regarding his bank robbery conviction.” (Id. at 8 (citing Kidd v. United States, No. 18-2465,
2019 WL 2864451, at *1 (8th Cir. July 3, 2019) (citations omitted)).) As such, even though Section
924(c)(3)(b)’s residual clause is unconstitutionally vague, the court finds that Petitioner’s
convictions for armed bank robbery and carjacking remain crimes of violence under Section
924(c)(3)(A)’s elements clause. Accordingly, the court agrees with the Magistrate Judge’s
recommendation to dismiss Petitioner’s first and second claims because Davis does not apply. (See
id. at 9 (citing ECF No. 1 at 8–9).)
As to Petitioner’s third claim, the Magistrate Judge determined that Petitioner failed to
show that he is entitled to relief under the First Step Act of 2018, Pub. L. No. 115-391, § 404, 132
Stat. 5194, 5222. (Id. at 10.) Indeed, “any such reliance would fail because the relevant provision
is not retroactive to cases on collateral review.” (Id. (citing Brown v. Antonelli, No. 19-1344, 2019
WL 2360901, at *5 (D.S.C. May 15, 2019) (citations omitted)).) Consequently, the court finds that
Petitioner’s third claim also warrants dismissal.
IV. CONCLUSION
After a thorough review of the Report and the record in this case, the court ACCEPTS the
Magistrate Judge’s Report and Recommendation (ECF No. 47), GRANTS Respondent Warden
Joyner’s Motion to Dismiss for lack of jurisdiction (ECF No. 31), and DISMISSES Petitioner Ras
Rahim’s Petition for Writ of Habeas Corpus (ECF No. 1) without prejudice.
IT IS SO ORDERED.

United States District Judge

February 10, 2020
Columbia, South Carolina
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