Jones v. Johnson
Filing
17
MEMORANDUM OPINION AND ORDER: The court hereby OVERRULES plaintiff's objections and CONFIRMS and ACCEPTS the factual and legal analysis contained within the 15 Proposed Findings and Recommendation. Accordingly, the court DISMISSES plaintiff 's application for Writ of Habeas Corpus and DIRECTS the Clerk to remove this matter from the court's docket. The court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 9/28/2018. (cc: Plaintiff, pro se; counsel of record) (mk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
VAUGHNTA MARKEES JONES,
Plaintiff,
v.
CIVIL ACTION NO. 1:15-13133
WARDEN, FCI Allenwood,
Defendant.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United States
Magistrate Judge Dwane L. Tinsley for submission of proposed
findings and recommendation.
Magistrate Judge Tinsley submitted
his proposed findings and recommendation on August 16, 2018.
In
that Proposed Findings and Recommendation (“PF&R”), the
magistrate judge recommended that this court dismiss plaintiff’s
application for Writ of Habeas Corpus pursuant to 28 U.S.C. §
2241 and dismiss this matter from the court’s docket.
In accordance with the provisions of 28 U.S.C. § 636(b), the
parties were allotted fourteen days, plus three mailing days, in
which to file any objections to Magistrate Judge Tinsley’s
Findings and Recommendation.
The failure of any party to file
such objections constitutes a waiver of such party's right to a
de novo review by this court.
Snyder v. Ridenour, 889 F.2d 1363
(4th Cir. 1989); Thomas v. Arn, 474 U.S. 140 (1985).
Moreover,
this court need not conduct a de novo review when a party “makes
general and conclusory objections that do not direct the court to
a specific error in the magistrate’s proposed findings and
recommendations.”
1982).
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.
Plaintiff filed objections to the Proposed Findings and
Recommendation on September 4, 2018.
Because petitioner filed
his objections timely, this court has conducted a de novo review
of the record as to those objections.
See 28 U.S.C. § 636(b)(1)
(“A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings and
recommendations to which objection is made.”).
I.
Background
On August 25, 2010, Jones pled guilty in the District of
South Carolina to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1), and possession of a sawed-off
shotgun, in violation of 26 U.S.C. § 5861(d).
United States v.
Jones, Case No. 0:06-cr-01169 (D.S.C. Aug. 25, 2010).
Jones was
sentenced to a total term of imprisonment of 168 months,
consisting of 120 months on the felon in possession count and 48
months on the sawed-off shotgun possession count, sentences to
run consecutively.
Magistrate Judge Tinsley concluded that plaintiff’s claim
was properly considered under 28 U.S.C. § 2255, and not 28 U.S.C.
§ 2241, because he was challenging the validity of his conviction
and the sentence imposed by the District of South Carolina.
2
Motions under § 2255 are to be filed in the sentencing court.
However, because plaintiff had not obtained authorization to file
a second or successive § 2255,1 Magistrate Judge Tinsley
determined that plaintiff’s motion should be dismissed rather
than transferred to the sentencing court.
II.
Analysis
Title 28, United States Code, Sections 2241 and 2255 each
create a mechanism by which a federal prisoner may challenge his
detention.
However, the two sections are not interchangeable.
Under 28 U.S.C. § 2255, a federal prisoner can move to vacate,
set aside, or correct a sentence “imposed in violation of the
Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law.”
U.S.C. § 2255.
See 28
Motions under 28 U.S.C. § 2255 are the primary
remedy for testing the validity of federal judgments and must be
filed in the court of conviction.
28 U.S.C. § 2241 is generally used to address matters
concerning the execution of a federal sentence, and is not an
additional, alternative or supplemental remedy to that provided
in section 2255, unless the petitioner can show that the remedy
1
On February 11, 2015, a motion to file a second or
successive application for relief under 28 U.S.C. § 2255 was
denied by the United States Court of Appeals for the Fourth
Circuit. See ECF No. 4 in Case No. 15-109 (4th Cir. 2015).
3
under section 2255 is inadequate or ineffective to test the
legality of the petitioner’s detention.
In re Jones, 226 F.3d
328, 333 (4th Cir. 2000) (“[W]hen § 2255 proves ‘inadequate or
ineffective to test the legality of . . . detention,’ a federal
prisoner may seek a writ of habeas corpus pursuant to § 2241.”).
In re Jones relies upon the statutory language presently found in
28 U.S.C. § 2255(e), which states:
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.
This section is known as the “savings clause.”
The fact that
relief under section 2255 is procedurally barred does not render
such remedy inadequate or ineffective to test the legality of a
petitioner’s detention.
Id. at 332.
Plaintiff objects to the magistrate judge’s conclusion in
the PF&R that he not be permitted to proceed under § 2241 because
he has not shown that § 2255 is inadequate or ineffective.
For
the following reasons, the court agrees with the magistrate
judge’s recommendation and OVERRULES plaintiff’s objections.
Plaintiff argues that his felon in possession conviction
should be vacated because the underlying felony convictions,
which served as the basis for that conviction, were not felonies
4
under United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), and
Miller v. United States, 735 F.3d 141 (4th Cir. 2013).
Therefore, plaintiff’s claim is properly reviewed under section
2255, not section 2241, because it involves the validity of his
conviction, rather than the execution of his sentence.
Thus,
before considering plaintiff’s section 2241 petition on its
merits, the court must determine whether the remedy under section
2255 is inadequate or ineffective to test the legality of his
detention in order for him to pursue such relief under section
2241.
The Fourth Circuit has held that:
§ 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 §
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.2
2
The “gatekeeping” requirements provide that an individual may
only file a second or successive § 2255 motion if the claim
sought to be raised presents:
(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 fact finder 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.
28 U.S.C. § 2255(h); Jones, 226 F.3d at 330.
5
Jones, 226 F.3d at 333-34.
Using this three-factor analysis,
plaintiff does not present a claim that falls within the savings
clause exception because he cannot satisfy the second criterion.
The Miller decision, upon which Jones bases his argument, was not
decided “subsequent to the prisoner’s direct appeal and first §
2255 motion.”
Miller was decided on August 21, 2013, while
plaintiff’s first § 2255 was pending.
That first § 2255 motion
was dismissed more than two months later, on November 6, 2013.
Therefore, although Jones could have sought to amend his § 2255
to include his claim based upon Miller/Simmons, he did not do so.
Accordingly, he cannot meet his burden to show that § 2255 is
inadequate or ineffective.
See, e.g., McIntosh v. Tamez, No. 11-
10435, 2012 WL 1557342, *2 (5th Cir. May 1, 2012) (“[W]e agree
with the district court that McIntosh cannot satisfy the second §
2255(e) requirement.
Prior to Santos, circuit precedent
foreclosed McIntosh’s claim. . .
on June 2, 2008.
was pending.
But Santos removed that barrier
At that time, McIntosh’s first § 2255 motion
The district court did not dismiss the motion until
more than six weeks later, on July 16.
At any time during this
period, McIntosh could have sought leave to amend his motion to
add his Santos claim.
He did not.”); Hinojosa v. Maye, No. A-11-
CA-983LY, 2012 WL 2191694, *3 (W.D. Tex. June 13, 2012)
(dismissing § 2241 where petitioner failed to establish the
inadequacy or ineffectiveness of § 2255 in part because
6
petitioner “could have sought leave to amend his first § 2255
motion to raise the Santos claim during the one month period when
he was aware of the decision and before his § 2255 was
dismissed”).
Faced with Magistrate Judge Tinsley’s conclusion to this
effect in the PF&R, Jones objects that the could not have amended
his first § 2255 claim to cite Miller because he did not know
about the Miller decision until after his § 2255 was decided.
To
that end, he declares under penalty of perjury that (1) the FCI
McDowell law library was the “only available source accessible to
him as a Pro Se litigant”; (2) “at that time, it often took 3-4
months until computers would be updated”; (3) that between the
time the Miller was decided and his first § 2255 was dismissed,
“the Miller case was not reasonably available to him”; and (4) he
only became aware of Miller which appealing the dismissal of his
original § 2255.
ECF No. 16 at p.5.
However, as our appeals
court has long held, in general, ignorance of the law does not
operate to excuse an inmate’s tardy filing.
Cf. United States v.
Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (holding that even in the
case of an unrepresented prisoner, ignorance of the limitations
period for filing a motion to vacate is not a basis for equitable
tolling of the statute of limitations.).
Jones’ argument in this regard is also based upon the faulty
premise that he could not have presented the argument he now
7
seeks to make until Miller was decided.
Jones argues that he is
actually innocent of being a felon in possession because the
underlying predicate felonies upon which that conviction depended
were not really felonies post-Simmons.
However, even though
Miller was decided during the pendency of Jones’ first § 2255
motion, Simmons was decided on August 7, 2011, while Jones’
direct appeal was ongoing.
Furthermore, his first § 2255 motion
was not filed until June 17, 2013.
Accordingly, it is clear that
Jones had ample opportunity to argue the ongoing validity of his
predicate felony convictions under Simmons.
As the United States
Court of Appeals for the Tenth Circuit has explained, “we cannot
agree that the absence of [a particular case] from the U.S.
Reports at the time of a prisoner’s first § 2255 motion has
anything to do with the question whether § 2255 [i]s an
inadequate or ineffective remedial mechanism for challenging the
legality of [ ] detention.”
(10th Cir. 2011).
Prost v. Anderson, 636 F.3d 578, 589
As now Justice Gorsuch explained:
To invoke the savings clause, there must be something
about the initial § 2255 procedure that itself is
inadequate or ineffective for testing a challenge to
detention. . . .
We readily acknowledge that, at the time of his
first § 2255 motion, it is likely that neither Mr.
Prost nor his counsel imagined the particular statutory
interpretation argument Santos ultimately vindicated.
But in much the same way that a student’s failure to
imagine a novel or creative answer to an exam question
doesn’t make the exam an inadequate or ineffective
procedure for testing his knowledge, the fact that Mr.
Prost or his counsel may not have thought of a Santos8
type argument earlier doesn’t speak to the relevant
question whether § 2255 itself provided him with an
adequate and effective remedial mechanism for treating
such an argument. The § 2255 remedial vehicle was
fully available and amply sufficient to test the
argument, whether or not Mr. Prost thought to raise it.
And that is all the savings clause requires.
* * *
Critically, Mr. Prost doesn’t—and can’t—dispute
that he was entirely free to raise and test a Santostype argument in his initial § 2255 motion. Instead,
he argues only that a Santos-type argument likely would
have been rejected on the merits at the district court
and circuit panel levels because of adverse circuit
precedent, leaving him with only en banc and certiorari
petitions to try to undo that precedent. But, as we
have explained, the plain language of the savings
clause does not authorize resort to § 2241 simply
because a court errs in rejecting a good argument. The
savings clause doesn’t guarantee results, only process.
Neither does this fact change merely because the
court’s error on the merits happens to be induced by
preexisting circuit precedent. We readily acknowledge
that circuit precedent sometimes requires judges to
reject a claim on its merits, and sometimes that
precedent is quite wrong in doing so. But, as we’ve
already detailed at length, the possibility of an
erroneous result—the denial of relief that should have
been granted—does not render the procedural mechanism
Congress provided for bringing that claim (whether it
be 28 U.S.C. §§ 1331, 1332, 2201, 2255, or otherwise)
an inadequate or ineffective remedial vehicle for
testing its merits within the plain meaning of the
savings clause. Whether a statutory interpretation
argument is rejected on the merits by a circuit court
on the basis of a newly crafted but deficient test, or
by application of an old but equally bad test found in
circuit precedent makes no difference. Legal error has
occurred. And whenever legal error occurs it may very
well mean circuit law is inadequate or deficient. But
that does not mean the § 2255 remedial vehicle is
inadequate or ineffective to the task of testing the
argument.
Id. at 589-90 (emphasis in original).
9
The Simmons case illustrates this point.
Simmons persisted
in his challenge despite adverse circuit precedent, i.e., United
States v. Harp, 406 F.3d 242 (4th Cir. 2005), and, ultimately was
able to persuade the court to overrule Harp.
See United States
v. Simmons, 649 F.3d 237, 241 (4th Cir. 2011) (“After
consideration of that precedent, we now conclude that Harp no
longer remains good law.”).
Carachrui-Rosendo v. Holder, 560
U.S. 563 (2010), on which the Simmons decision relied, was
decided on June 14, 2010, before Jones even pled guilty.
Therefore, he not only had the opportunity to make the argument
he now advances in his first § 2255 but he also had the benefit
of that decision of the United States Supreme Court before he
even pled guilty.
For this reason, it is disingenuous of Jones
to argue that he was unable to assert the claim he asserts herein
until after he knew of the Miller decision.
Although the PF&R does not discuss it, plaintiff does not
satisfy the second Jones factor for the additional reason that
substantive law has not changed—-plaintiff was a felon in
possession at the time of his conviction and he remains one to
this day.
To be convicted of possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924,
the government needed only to prove that Jones had been convicted
by any court of a “crime punishable by imprisonment for a term
exceeding one year.”
10
At his sentencing hearing on December 10, 2010, the court
concluded that defendant had a criminal history category of V.
See ECF No. 161 in Case No. 0:06-cr-01169-CMC (D.S.C).
As a
factual basis for the plea, the government proffered that “[a]
few of Mr. Jones’s previous convictions that caused him to be a
felon is a ‘98 conviction for failure to stop for a blue light as
well as an `02 conviction for assault and battery of a high and
aggravated nature, and a failure to stop for blue light.”
No. 162 at 24-25 in Case No. 0:06-cr-01169-CMC (D.S.C).
ECF
The
district court then informed the government that she was “going
to need a little bit more.”
Id. at 25.
The government made a
further proffer that
In ‘98, June 12th, ‘98, he was convicted of failure to
stop for a blue light. He received three years under
the Youthful Offender Act. In 2002, August 20th, he
was convicted of assault and battery of a high and
aggravated nature. He got 30 days confinement
concurrent with another failure to stop for a blue
light for which he got 30 days confinement concurrent.
And on September 27th, 2005, he was convicted of
possession with intent to distribute a controlled
substance for which he got a 12-month sentence,
suspended eight months confinement and one year
probation.
Id. at 26.
Immediately after this proffer, the court inquired of
Jones:
Court:
All right. Okay. Mr. Jones, do you admit
that as of the date in the indictment, April
28th, 2006, you had previously been convicted
of a crime punishable by a term of
imprisonment exceeding one year?
Defendant:
Yes, ma’am.
11
Id. at 27.
Jones does not dispute that he has a 2005 South Carolina
conviction for Possession with Intent to Distribute Marijuana,
2nd Offense.
See ECF No. 142 in 0:06-cr-01169-CMC (D.S.C).
Furthermore, it is clear that such a conviction carries with it a
maximum term of incarceration of over one year.
See S.C. Code
Ann. § 44-53-370; see also Louallen v. United States, Civil
Action No. 4:11-3372-TLW, 2012 WL 1570143, *3 (D.S.C. May 2,
2012) (“Petitioner’s reliance on [Simmons] is misplaced, as
Simmons concerned the unique sentencing regime in North
Carolina’s state court system and a particular North Carolina
drug offense the violation of which does not necessarily subject
the offender to the possibility of a one year term of
incarceration.
That is simply not true of the South Carolina
offense at issue here.
Under South Carolina law, Possession with
Intent to Distribute Marijuana, 2nd Offense, carries with it a
maximum potential sentence of greater than one year.”).
Furthermore, the fact that Jones did not receive a sentence in
excess of one year is not what matters–-only that he could have
been sentenced to more than one year.
See United States v.
Cozart, No. 11-5150, 496 F. App’x 280, 282-83 (4th Cir. Oct. 31,
2012).
In Cozart, the United States Court of Appeals for the
Fourth Circuit reversed the district court for vacating a
defendant’s felon in possession conviction because he had not
12
actually been punished with a term of imprisonment exceeding one
year for his underlying felony.
See id. at 283 (“Cozart’s state
conviction and prior record level rendered him eligible to
receive for that conviction a term of imprisonment of up to 13
months.
Thus, Cozart’s actual sentence of 10 to 12 months was
not determinative of the issue whether he had been convicted of a
crime `punishable by imprisonment for a term exceeding one
year.’”).
Notwithstanding plaintiff’s argument to the contrary, Jones’
conviction for assault and battery of a high and aggravated
nature (ABHAN) also was punishable for a term of imprisonment
exceeding one year.
See State v. Fennell, 531 S.E.2d 512, 516
(S.C. 2000) (“ABHAN is a common law misdemeanor punishable by up
to ten years in prison.”); see also United States v. Velez, No.
04-4742, 167 F. App’x 349, 350 (4th Cir. Feb. 15, 2006) (“Under
South Carolina law, ABHAN is the unlawful act of violent injury
to another accompanied by circumstances of aggravation and is
punishable by up to ten years in prison.”) (internal quotations
and citation omitted); Jones v. United states, Nos. 2:07-cv01120-DCN, 2:10-cv-70141-DCN, 2012 WL 3685990, *4 (D.S.C. Aug.
24, 2012) (“sentences for ABHAN can amount up to ten years”).3
3
Likewise, defendant’s conviction for Failure to Stop for a
Blue Light also qualifies as a predicate felony for felon in
possession purposes. See, e.g., Bloodworth v. United States,
Civil Action No. 4:12-cv-2007-TLW, 2013 WL 6780576, *12 (D.S.C.
Dec. 18, 2013) (“To the extent Petitioner asserts that he is
13
Based on the foregoing, it is clear that the Simmons/Miller
line of cases do not serve to invalidate the predicate felonies
underlying Jones’ felon in possession conviction.
III. Conclusion
The court hereby OVERRULES plaintiff’s objections and
CONFIRMS and ACCEPTS the factual and legal analysis contained
within the Proposed Findings and Recommendation.
Accordingly,
the court DISMISSES plaintiff’s application for Writ of Habeas
Corpus and DIRECTS the Clerk to remove this matter from the
court’s docket.
Additionally, the court has considered whether to grant a
certificate of appealability.
See 28 U.S.C. § 2253(c).
A
certificate will not be granted unless there is “a substantial
showing of the denial of a constitutional right.”
28 U.S.C. §
`actually innocent’ of being a Felon in Possession based on
Simmons, . . . Petitioner’s arguments are without merit.
Petitioner appears to improperly confuse ACCA predicates with
Felon in Possession predicates in presuming that he is not a
felon for Felon in Possession purposes. Contrary to his
assertions, Petitioner’s prior convictions subject him to a
conviction under 18 U.S.C. § 922(g)(1) as long as they are crimes
punishable by imprisonment for a term exceeding one year. . . .
Simmons would only offer Petitioner relief in the case of a prior
North Carolina felony conviction that, because it did not subject
Petitioner to a potential custodial sentence of one year, did not
qualify as a federal felony. . . . Thus, Petitioner’s prior
convictions for . . . Failure to Stop for a Blue Light . . .
would each qualify as a crime punishable by imprisonment for a
term exceeding one year for felon in possession purposes. As a
result, Petitioner’s actual innocence assertion is without
merit.”) (emphasis in original). Indeed, Jones received a
sentence of three years. See ECF No. 162 at 26 in Case No. 0:06cr-01169-CMC (D.S.C)
14
2253(c)(2).
The standard is satisfied only upon a showing that
reasonable jurists would find that any assessment of the
constitutional claims by this court is debatable or wrong and
that any dispositive procedural ruling is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683-84 (4th Cir. 2001).
The court concludes that the governing
standard is not satisfied in this instance.
Accordingly, the
court DENIES a certificate of appealability.
The Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to counsel of record and to
plaintiff pro se.
IT IS SO ORDERED this 28th day of September, 2018.
ENTER:
David A. Faber
Senior United States District Judge
15
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