Hill v. United States of America

Filing 13

ORDER ADOPTING IN PART THE REPORT AND RECOMMENDATION: It is ORDERED that Magistrate Kaull's 9 Report and Recommendation is adopted in part; Petitioner's 1 Petition is denied; Petitioner's 12 Motion to Supplement the Record is den ied as moot; this case is dismissed without prejudice; and the Clerk shall enter a separate judgment order. Written notice of appeal must be received within 30 days from entry of the Judgment Order. Signed by District Judge Irene M. Keeley on 10/10/12. (Attachments: # 1 Certified Mail Return Receipt)(copy Petitioner)(cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KARL KEVIN HILL,
Petitioner,
v.

//

CIVIL ACTION NO. 1:11CV206
(Judge Keeley)

UNITED STATES OF AMERICA,
Respondent.
ORDER ADOPTING IN PART THE REPORT AND RECOMMENDATION
Before

the

Court

is

the

Magistrate

Judge’s

Report

and

Recommendation concerning the petition filed by Karl Kevin Hill
pursuant to 28 U.S.C. § 2241. For the reasons that follow, the
Court

ADOPTS

IN

PART

the

Magistrate

Judge’s

Report

and

Recommendation.
I.
On January 19, 2012, the pro se petitioner, inmate Karl Kevin
Hill (“Hill”), filed a petition pursuant to 28 U.S.C. § 2241 (dkt.
no. 1) alleging that certain search warrants issued in the criminal
investigation underlying his conviction were fraudulent, and that
the use of those allegedly fraudulent warrants rendered his plea
agreement void. The Court referred this matter to United States
Magistrate Judge John S. Kaull for initial screening and a report
and recommendation (“R&R”)in accordance with LR PL P 2. Judge Kaull
issued an Opinion and R&R on January 19, 2012,(dkt. no. 9) in which
he recommended that Hill’s § 2241 motion be denied and dismissed
with prejudice because:

HILL V. UNITED STATES

1:11CV206

ORDER ADOPTING-IN-PART THE REPORT AND RECOMMENDATION
•

Hill could not challenge his conviction and sentence via a
§ 2241 petition;

•

Hill’s petition did not fall within the savings clause of §
2255, as applied in In re Jones, 226 F.3d 328, 333-34 (4th
Cir. 2000); and

•

Hill’s alternative motion pursuant to Federal Rule of Civil
Procedure 60(b) motion could not be construed as a § 2255
motion because such construction would be futile absent a
certificate of appealability from the Fourth Circuit.
Hill filed objections to Magistrate Judge Kaull’s R&R on

February 3, 2012, in which he contends that In re Jones is
inapplicable to his case, and this Court therefore should allow his
challenge to the imposition of his sentence to proceed under § 2241
in the broader interests of justice. Alternatively, Hill contends
that Magistrate Kaull erred when he determined that Hill’s Rule
60(b) motion should not be construed as a § 2255 motion. After
conducting a de novo review, the Court concludes that Hill’s
objections are without merit.
II.
On April 15, 2006, Hill pled guilty a drug conspiracy pursuant
to 21 U.S.C. §§ 846. The Court sentenced Hill to 120 months of
incarceration followed by eight years of supervised release, and
payment of the special assessment of $100.
2

HILL V. UNITED STATES

1:11CV206

ORDER ADOPTING-IN-PART THE REPORT AND RECOMMENDATION
Since

his

sentencing

in

2006,

Hill

has

directly

and

collaterally attacked his conviction to no avail. In 2007, the
Fourth Circuit denied Hill’s direct appeal. Then, in 2010, after
Hill’s collateral attack pursuant to 28 U.S.C. § 2255 was denied on
its merits, the Fourth Circuit declined to review that decision.
III.
Hill now challenges his conviction under § 2241. A petitioner
may not use a § 2241 petition to attack the validity of his
conviction, however, except where he can satisfy the requirements
of the ‘savings clause’ in § 2255(e). The savings clause of § 2255
provides as follows:
An application for a writ of habeas corpus a behalf of a
prisoner who is authorized to apply for relief by motion
pursuant to this section, shall not be entertained if it
appears 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.
The Fourth Circuit has explained that § 2255 is inadequate or
ineffective to test the legality of detention only where:
(1) [A]t 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 § 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 gate-keeping provisions of
§ 2255 because the new rule is not one of constitutional
law.

3

HILL V. UNITED STATES

1:11CV206

ORDER ADOPTING-IN-PART THE REPORT AND RECOMMENDATION
In re Jones, 226 F.3d at 333-34.
As Magistrate Judge Kaull correctly concluded, In re Jones
disqualifies Hill from relief under § 2255's savings clause. Even
assuming Hill could satisfy the first and third requirements of In
re Jones, his count of conviction – drug conspiracy under 21 U.S.C.
§ 841 – remains a criminal offense.
Contrary to Hill’s arguments, the decision of the Supreme
Court of the United States in McClesky v. Zant, 499 U.S 467 (1991),
does not permit this Court to ignore In re Jones. First, the Fourth
Circuit has consistently reiterated that In re Jones provides a §
2241 petitioner’s only route to the § 2255 savings clause. See,
e.g., Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010). In Rice,
our circuit court strictly applied In re Jones to block a § 2241
petitioner from challenging the fact of his conviction through the
savings clause of § 2255. While the court ultimately remanded the
petitioner’s case to the district court with instructions to vacate
his

sentence,

it

determined

that

§

2241

was

the

incorrect

procedural vehicle for the challenge because the petitioner did not
meet the requirements of In re Jones. Significantly, the case
recognized no alternative means for the petitioner to merit relief
under the savings clause of § 2255.
Second, numerous courts have recognized that McClesky is
subject to the provisions of the Antiterrorism and Effective Death
4

HILL V. UNITED STATES

1:11CV206

ORDER ADOPTING-IN-PART THE REPORT AND RECOMMENDATION
Penalty Act of 1996 (AEDPA). For example, as explained by the
Circuit Court of Appeals of the District of Columbia in U.S. v.
Palmer:
The AEDPA significantly changed the landscape. The final
paragraph of section 2255 and section 2244(b) of Title
28,
both
included
in
the
AEDPA,
replace
the
abuse-of-the-writ doctrine [i.e. McClesky] with statutory
requirements that bar second or successive section 2255
motions
absent
exceptional
circumstances
and
certification by an appellate court.
Pre-AEDPA, if a defendant filed a second section 2255
petition, the government could defend on “abuse of the
writ,” whereupon the defendant had to show cause for
failing to raise the claim earlier, i.e., “some objective
factor external to the defense [that] impeded counsel's
efforts,” as well as demonstrate “actual prejudice
resulting from the errors of which he complains.”
296 F.3d 1135, 1144, n. 10 (D.C. Cir. 2002) (quoting McClesky, 499
U.S. at 493-94). See also Thomas v. Supt./Woodborne Correctional
Inst., 136 F.3d 227, 229 (2d. Cir. 1997) (explaining that AEDPA
“altered prior law by shifting the burden of showing that a habeas
petition was not abusive”).
AEDPA, therefore, has statutorily altered the common law
“abuse of writ” doctrine. Under AEDPA, a petitioner may not make
successive § 2255 filings, thus ending the petitioner’s former
option of filing successive § 2255 petitions so long as he could
show

they

were

not

abusive.

In

other

words,

AEDPA,

and

not

McClesky, is the controlling law of successive habeas petitions.

5

HILL V. UNITED STATES

1:11CV206

ORDER ADOPTING-IN-PART THE REPORT AND RECOMMENDATION
For those reasons, Hill may not escape the requirements of In
re Jones. Rather, he is confined to AEDPA’s statutory scheme, and
the Fourth Circuit’s interpretation of that scheme, of which In re
Jones

is

an

important

component.

Hill

does

not

meet

the

requirements set forth in In re Jones to merit application of the
savings clause of § 2255.
III.
Hill also argues for relief pursuant to Federal Rules of Civil
Procedure 60(b) and (d). However, a criminal defendant cannot use
the Federal

Rules

of

Civil

Procedure

to

attack

his

criminal

conviction or sentence. United States v. Mosavi, 138 F.3d 1365,
1366 (11th Cir. 1998). Federal Rule of Civil Procedure 1 makes
clear that “[t]hese rules govern the procedure in the United States
district courts in all suits of a civil nature.” Hill’s motion is
therefore improperly styled as a Rule 60(b) motion because it
challenges his criminal conviction.
While improperly styled as a Rule 60(b) motion, Hill’s motion
could be construed as a § 2255 motion. See U.S. v. Winestock, 340
F.3d 200, 206 (4th Cir. 2003) (holding that in most cases, district
courts “must treat Rule 60(b) motions as successive collateral
review applications”).

Examples of situations in which a district

court may properly construe a Rule 60(b) motion as a collateral
review application include “new legal arguments or proffers of
6

HILL V. UNITED STATES

1:11CV206

ORDER ADOPTING-IN-PART THE REPORT AND RECOMMENDATION
additional evidence” or a “brand-new, free-standing allegation of
constitutional error in the underlying criminal judgment.” Id. at
207.

Hill’s petition alleges that the search warrants underlying

his conviction were fraudulent and therefore void his subsequent
plea agreement. Those allegations are properly characterized as
“new

legal

arguments

or

proffers

of

additional

evidence.”

Therefore, this Court could construe Hill’s Rule 60(b) motion as a
§ 2255 motion.
As

explained

in

the

R&R,

however,

such

construction

is

unwarranted. Section 2255(h) provides that:
A second or successive motion must be certified as
provided in section 2244 by a panel of the appropriate
court of appeals to contain-(1) newly discovered evidence that, if proven and viewed
in light of the evidence as a whole, would be sufficient
to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty
of the offense; or
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable.
To qualify as a second or successive petition, the first habeas
petition must have been dismissed on the merits. Slack v. McDaniel,
529 U.S. 473, 485-89 (2000); In re Williams, 444 F.3d 233, 235 (4th
Cir. 2006)
Here, Hill’s first habeas petition filed pursuant to § 2255
was dismissed on the merits. See Order, Hill v. United States, No.
7

HILL V. UNITED STATES

1:11CV206

ORDER ADOPTING-IN-PART THE REPORT AND RECOMMENDATION
2:04-cr-30 (N.D.W. Va. March 26, 2010). Therefore, before Hill can
pursue a successive or second § 2255 petition, he must obtain a
certificate of appealability from the Fourth Circuit. Because he
has not done so, it would be futile for this Court to construe
Hill’s Rule 60(b) motion as a § 2255 motion. Therefore, the motion
remains exactly what it is – an improperly styled motion which this
Court lacks the jurisdiction to decide.
IV.
For the reasons discussed, the Court:
1.

ADOPTS-IN-PART the Report and Recommendation (dkt. no.
9);

2.

DENIES Hill’s § 2241 petition (dkt. no. 1);

3.

DENIES AS MOOT Hill’s motion to supplement the record
(dkt. no. 12); and

4.

ORDERS that this case be DISMISSED WITHOUT PREJUDICE.1

If the petitioner should desire to appeal the decision of this
Court, written notice of appeal must be received by the Clerk of
this Court within thirty (30) days from the date of the entry of
the Judgment Order, pursuant to Rule 4 of the Federal Rules of
Appellate Procedure.

1

The Court notes that its dismissal of Hill’s complaint for lack of
subject matter jurisdiction must be without prejudice. See Fed. R. Civ.
P. 41(b). That is a different outcome than the one proposed in the
Opinion and R&R (dkt. no. 9).

8

HILL V. UNITED STATES

1:11CV206

ORDER ADOPTING-IN-PART THE REPORT AND RECOMMENDATION
It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of
Court to enter a separate judgment order and to transmit copies of
both orders to counsel of record and to the pro se petitioner,
certified mail, return receipt requested.
Dated: October 10, 2012.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

9