Gibson v. Warden
Filing
17
MEMORANDUM OPINION AND ORDER The court OVERRULES petitioner's objections; ADOPTS the 12 Proposed Findings and Recommendation by Magistrate Judge; DENIES petitioner's 1 Petition for Writ of Habeas Corpus (2241); GRANTS respondent's [11-1] motion to dismiss; DENIES respondent's [11-2] motion to transfer; and DISMISSES this action without prejudice for lack of jurisdiction. The court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 3/15/2021. (cc: counsel of record; any unrepresented parties) (arb)
Case 1:18-cv-00969 Document 17 Filed 03/15/21 Page 1 of 16 PageID #: 114
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
SHAWN GIBSON,
Petitioner,
v.
CIVIL ACTION NO. 1:18-00969
WARDEN, FCI MCDOWELL,
Respondent.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United
States Magistrate Judge Dwane L. Tinsley for submission of
findings and recommendation regarding disposition pursuant to 28
U.S.C. § 636(b)(1)(B).
Magistrate Judge Tinsley submitted to
the court his Proposed Findings and Recommendation (“PF&R”) on
August 31, 2020, in which he recommended that the court deny
petitioner’s petition for writ of habeas corpus under 28 U.S.C.
§ 2241 and grant respondent’s motion to dismiss.
(See ECF No.
12.)
In accordance with the provisions of 28 U.S.C. § 636(b),
petitioner was allotted fourteen days and three mailing days in
which to file any objections to the PF&R.
The failure of any
party to file such objections within the time allowed
constitutes a waiver of such party’s right to a de novo review
by this court.
1989).
Snyder v. Ridenour, 889 F.2d 1363 (4th Cir.
Case 1:18-cv-00969 Document 17 Filed 03/15/21 Page 2 of 16 PageID #: 115
Petitioner did not timely file objections.
On September
21, 2020, however, petitioner, acting pro se, filed a motion
seeking additional time to file objections to the PF&R.
No. 13.)
(ECF
The envelope in which petitioner sent his motion was
postmarked September 16, 2020.
In his motion for an extension,
petitioner stated that he was “pretty whiped [sic] out” from two
bouts of COVID-19.
(Id.)
He also stated that he had no paper
and that he had been having trouble obtaining a copy of a
toxicology report.
(Id.)
On October 7, 2020, the court granted petitioner’s motion
for additional time to file objections and granted him until
November 6, 2020, to do so.
Petitioner filed objections on
October 30, 2020. 1
I.
Factual Background
In the early 2000s, petitioner was a heroin dealer in
Vermont.
(See ECF No. 2.)
Even while enrolled in a drug
treatment program in Massachusetts in the spring and summer of
2001, he kept selling heroin.
(See id.)
On the afternoon of July 31, 2001, after her father stopped
by petitioner’s parents’ residence looking for her, police found
22-year-old Jill McCarthy dead in petitioner’s bedroom.
(See
Petitioner also filed objections on November 5, 2020, but this
set of objections appears to be a duplicate of his October 30
objections.
1
2
Case 1:18-cv-00969 Document 17 Filed 03/15/21 Page 3 of 16 PageID #: 116
id.)
The autopsy “concluded that she died of ‘acute drug:
morphine from heroin intoxication.’”
(See id. (quoting autopsy
report).)
Petitioner subsequently pleaded guilty to knowingly and
intentionally distributing heroin to a minor 2 (two counts) and
knowingly and intentionally distributing heroin (four counts).
In a July 28, 2003 addendum to the plea agreement, petitioner
agreed to plead guilty to distributing heroin that resulted in
Ms. McCarthy’s death, in violation of 21 U.S.C. § 841(b)(1)(C).
At petitioner’s sentencing, the court calculated an offense
level of 37 and a guideline range (under then-mandatory
guidelines) of 262 to 327 months.
(Sentencing Hr’g Tr. 76:4-
77:25, ECF No. 68, Case No. 2:02-cr-00106 (D. Vt.).)
The court
then sentenced petitioner to 300 months on counts 3, 6, and 8
(the charge under § 841(b)(1)(c) was count 8), and 240 months on
the other charges, to run concurrently, followed by six years of
supervised release.
(Tr. 77:6-25).
In arguing that petitioner had accepted responsibility for
his crimes, his counsel stated, “He stood up to the plate and
admitted that the heroin that he had, he gave to his girlfriend
that night, indeed caused her death.”
(Tr. 33:5-7.)
After
describing it as “a real close case,” the court concluded “that
Ms. McCarthy was not a minor, so these two counts were not for
distribution to her.
2
3
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there ha[d] been a showing that [petitioner had] clearly
demonstrated acceptance of responsibility.”
(Tr. 56:15-22.)
At the sentencing hearing, petitioner admitted that he
“instructed [a witness] to falsify testimony.”
29:17).
(Tr. 28:23-
The court noted, “I find [petitioner’s] conduct in
regard to talking with someone else to manufacture a story or a
defense just reprehensible.”
(Tr. 57:10-15.)
The court further
found petitioner’s subornation of perjury to be “extraordinarily
serious” and described it as “a significant factor in the
Court’s ultimate decision as to where within the guidelines the
sentence should be imposed.”
(Tr. 57:10-58:1.)
In articulating its reasoning for the sentence it imposed,
the court stated that the first factor was petitioner’s attempt
to obstruct justice by asking someone to testify falsely.
Tr. 72:12-13.)
(See
The court further noted the “history beyond just
the act which resulted in Miss McCarthy’s death.”
(Tr. 73:6-7.)
The history was one of petitioner’s extensive involvement in the
distribution of drugs and the “countless, countless families who
suffered as a result of the heroin that was distributed.”
73:6-19.)
(Tr.
The court noted its “responsibility . . . to project
a clear message that the courts . . . respond in a particular
kind of way to this criminal behavior” and stressed that the
“message has to be very clear to people who would ever think
4
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that they should distribute heroin or any other drug.”
(Tr.
74:8-16.)
On September 11, 2015, petitioner moved to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255, arguing
that under Burrage v. United States, 571 U.S. 204 (2014), the
mandatory minimum under count 8 was “no longer applicable.”
sentencing court denied the motion.
The
On May 29, 2018, the
petitioner filed this petition under § 2241, again challenging
his sentence under Burrage.
On November 22, 2019, respondent
filed a motion to dismiss or transfer, arguing that this court
lacks jurisdiction to hear this § 2241 petition. (ECF No. 11.)
II.
Standard of Review of Pro Se Objections
Pursuant to Fed. R. Civ. P. 72(b), the court must “make a
de novo determination upon the record . . . of any portion of
the magistrate judge's disposition to which specific written
objection has been made.”
However, the court is not required to
review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those portions
of the findings or recommendation to which no objections are
addressed.
See Thomas v. Arn, 474 U.S. 140, 149–50 (1985).
Furthermore, de novo review is not required and is
unnecessary “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.”
5
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Orpiano v. Johnson, 687 F.2d 44, 47–48 (4th Cir. 1982); see also
United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007)
(“[T]o preserve for appeal an issue in a magistrate judge's
report, a party must object to the finding or recommendation on
that issue with sufficient specificity so as reasonably to alert
the district court of the true ground for the objection.”);
McPherson v. Astrue, 605 F. Supp. 2d 744, 749 (S.D.W. Va. 2009)
(“[F]ailure to file a specific objection constitutes a waiver of
the right to de novo review.”).
“A document filed pro se is ‘to be liberally construed.’”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
Specifically as to objections
to a PF&R, courts are “under an obligation to read a pro se
litigant’s objections broadly rather than narrowly.”
Beck v.
Comm’r of Internal Revenue Serv., 1997 WL 625499, at *1-2
(W.D.N.C. June 20, 1997) (citing Orpiano, 687 F.2d at 48).
However, objections that are “unresponsive to the reasoning
contained in the PF&R” are irrelevant and must be overruled.
Kesterson v. Toler, 2009 WL 2060090, at *1 (S.D.W. Va. July 7,
2009) (citing Orpiano, 687 F.2d at 47).
III. Petitioner’s Objections
The court finds that Judge Bailey’s description of the
objections in another case to apply here as well:
6
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Petitioner’s Objections do not specifically contest
the [PF&R]. Instead, the vast majority of the
Objections are simply paragraphs copied from a Sixth
Circuit case, Harrington v. Ormond, 900 F.3d 246 (6th
Cir. 2018), in which the Sixth Circuit found the
petitioner to have “properly petitioned for relief
under § 2241” based on Burrage. This Court assumes
petitioner did such because he believes Harrington is
analogous to his instant § 2241 Petition and wants
this Court to find the same.
Beuterbaugh v. Warden, FCI Gilmer, No. 5:19-CV-239, 2020 WL
1433536, at *2 (N.D.W. Va. Mar. 23, 2020).
In Harrington, the Sixth Circuit construed the § 2241
petition before it “as one of actual innocence,” applied the
savings clause test applicable in that circuit – which requires
a petitioner to show that “it [is] more likely than not that no
reasonable juror would have convicted him” – and determined that
an evidentiary hearing was necessary to determine whether the
petitioner there could make such a showing.
See 900 F.3d 246,
249-50.
The Sixth Circuit has a different savings clause test than
the Fourth Circuit does, and Sixth Circuit case law is not
binding on this court.
Moreover, petitioner does not explain
why Harrington forms the basis for a valid objection to the
PF&R.
He does not explain how that case is similar to this one.
He does not renew his request for an evidentiary hearing, which
was the only relief that the Sixth Circuit provided there.
Instead, he concludes that “it is indisputable that the District
7
Case 1:18-cv-00969 Document 17 Filed 03/15/21 Page 8 of 16 PageID #: 121
Court erred when it sentenced Gibson under the death caused
[sic] enhancement pursuant to USSG § 2D1.1(a)(2), when the
death-result enhancement was not submitted to the jury and found
beyond a reasonable doubt.
15, at 7.)
Burrage, 571 U.S. at 210.”
(ECF No.
He concludes by asking that the court “vacate his
sentence for resentencing.”
(Id.)
A guilty plea is essentially the equivalent of a jury
conviction.
Although Burrage spoke in terms of what needed to
be submitted to a jury, it did not change the fundamental
principle that a guilty plea renders a jury unnecessary.
571 U.S. at 210.
See
As the Seventh Circuit has explained, “The
Burrage holding is not about who decides a given question (judge
or jury) or what the burden of proof is (preponderance versus
proof beyond a reasonable doubt).
be proved.”
It is rather about what must
Krieger v. United States, 842 F.3d 490, 499-500
(7th Cir. 2016).
Petitioner’s objection that his sentence
cannot stand because a jury did not convict him is therefore
OVERRULED.
Petitioner also objects to the overall conclusion that his
petition does not qualify under the savings clause.
U.S.C. § 2255(e).
See 28
The savings clause test applies when
(1) at the time of sentencing, settled law of this
circuit or the Supreme Court established the legality
of the sentence; (2) subsequent to the prisoner's
direct appeal and first § 2255 motion, the
aforementioned settled substantive law changed and was
8
Case 1:18-cv-00969 Document 17 Filed 03/15/21 Page 9 of 16 PageID #: 122
deemed to apply retroactively on collateral review;
(3) the prisoner is unable to meet the gatekeeping
provisions of § 2255(h)(2) for second or successive
motions; and (4) due to this retroactive change, the
sentence now presents an error sufficiently grave to
be deemed a fundamental defect.
United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018).
Section 841(b)(1)(C) of title 21 of the United States Code
declares that if “death or serious bodily injury results” from a
defendant’s distribution of certain controlled substances, the
penalty is a minimum of twenty years imprisonment.
Petitioner
argues that in light of the Supreme Court’s decision in Burrage,
his sentence for violating this statute was imposed in error.
In Burrage, the Court held that in order to prove criminal
liability under § 841(b)(1)(C), the government must prove that
the victim’s use of the drug that the defendant distributed to
the victim was either (1) “independently sufficient to cause the
victim’s death or serious bodily injury” or (2) “a but-for cause
of the death or injury.”
See 571 U.S. at 218–19.
The Court
rejected the use of a jury instruction that required the drug to
be merely a “contributing cause” of death.
Id. at 208.
The
victim in Burrage died after “an extended drug binge,” and
experts who testified at trial were unable to say whether he
would have lived but for his use of the one gram of heroin that
Marcus Burrage had distributed to him.
9
Id. at 206-07.
Case 1:18-cv-00969 Document 17 Filed 03/15/21 Page 10 of 16 PageID #: 123
Although § 841(b)(1)(C) simply describes the penalties for
drug distribution, the Court explained that when the government
seeks to prove a “death results” distribution crime under
§ 841(b)(1)(C), the resulting death “is an element that must be
submitted to the jury and found beyond a reasonable doubt.”
Burrage, 571 U.S. at 210.
This is because under Alleyne v.
United States, 570 U.S. 99 (2013), “any fact that increases the
mandatory minimum sentence for a crime is an element of a crime
that must be submitted to a jury and found beyond a reasonable
doubt.” 3
For purposes of his 28 U.S.C. § 2241 challenge, Burrage
helps petitioner only if it is retroactively applicable on
collateral review.
See Wheeler, 886 F.3d at 429.
The
substantive law of the Second Circuit applies to decide the
retroactivity question.
(4th Cir. 2019). 4
See Hahn v. Moseley, 931 F.3d 295, 301
Although the Second Circuit has yet to tackle
whether Burrage is retroactive, the Fifth, Sixth, Seventh, and
Eighth Circuits have held that it is.
Santillana v. Upton, 846
Even in post-Burrage jury trials, however, unless the record
suggests that the victim “might have died nonetheless from the
effects of other substances,” courts are not required to provide
jury instructions clarifying that “results from” requires butfor causation or independently sufficient causation. See United
States v. Alvarado, 816 F.3d 242, 249 (4th Cir. 2016).
4 The PF&R mistakenly identifies the controlling law as that of
the First Circuit, but this error is harmless because it
concludes that Burrage is retroactive.
3
10
Case 1:18-cv-00969 Document 17 Filed 03/15/21 Page 11 of 16 PageID #: 124
F.3d 779, 784 (5th Cir. 2017) (“In sum, as a substantive
decision narrowing the scope a federal criminal statute, Burrage
applies retroactively to cases on collateral review.”);
Harrington v. Ormond, 900 F.3d 246, 249 (6th Cir. 2018)
(“Substantive decisions that narrow the scope of a criminal
statute by interpreting its terms apply retroactively to cases
on collateral review.
Burrage fits that bill:
because but-for
causation is a stricter requirement than, for example, the
contributing-cause rule rejected in Burrage, some conduct
punished by 21 U.S.C. § 841(b)(1) pre-Burrage is no longer
covered post-Burrage.” (internal quotation marks and citations
omitted)); Krieger v. United States, 842 F.3d 490, 500 (7th Cir.
2016) (“Burrage applied a new substantive rule that must be
applied on collateral review.”); Ragland v. United States, 784
F.3d 1213, 1214 (8th Cir. 2015) (accepting government’s
concession on retroactivity issue).
Given the Second Circuit’s
silence on the issue and the weight of persuasive authority,
this court agrees with Magistrate Judge Tinsley’s conclusion
that, for purposes of this petition, Burrage applies
retroactively upon collateral review.
Respondent’s motion argues that the petition does not fall
under the savings clause of § 2255(e).
Because the savings
clause is jurisdictional, see Wheeler, 886 F.3d at 426,
respondent’s motion is properly construed as a motion to dismiss
11
Case 1:18-cv-00969 Document 17 Filed 03/15/21 Page 12 of 16 PageID #: 125
under Federal Rule of Civil Procedure 12(b)(1).
The bulk of
respondent’s motion rests on the premise that Burrage does not
apply retroactively on collateral review.
Respondent says that
the petition fails prong two of the § 2255(e) savings clause
test set forth in Wheeler.
The PF&R correctly rejects respondent’s contention that
this petition fails under prong two of Wheeler because Burrage
is not retroactive; nevertheless, the PF&R correctly concludes
that the petition fails under prong four of Wheeler.
Prong four
requires due to a retroactive change in the law, the “sentence
now presents an error sufficiently grave to be deemed a
fundamental defect.”
Id. at 415.
Had there been an error here, it would likely be
“fundamental” because petitioner was sentenced under mandatory
guidelines.
Compare Braswell v. Smith, 952 F.3d 441, 450 (4th
Cir. 2020) (“Because Appellant's mandatory minimum was
erroneously increased, according to Wheeler, his sentence
‘presents an error sufficiently grave to be deemed a fundamental
defect.’”) with United States v. Foote, 784 F.3d 931, 940 (4th
Cir. 2015) (“Considering where this case falls on the
cognizability spectrum, we conclude Appellant’s career offender
designation was not a fundamental defect that inherently results
in a complete miscarriage of justice.”).
12
But there was no error
Case 1:18-cv-00969 Document 17 Filed 03/15/21 Page 13 of 16 PageID #: 126
at all, so the PF&R is correct that this petition fails under
prong four of Wheeler.
In Wheeler, there was a sentencing error as a matter of law
because the predicate offenses no longer qualified under a
change in the law.
a matter of law.
Here, petitioner does not argue an error as
Petitioner argues an error of proof.
First
and foremost, this claim of error fails because petitioner
pleaded guilty.
[A] defendant’s solemn declarations in open court
affirming [a plea] agreement . . . carry a strong
presumption of verity because courts must be able to
rely on the defendant’s statements made under oath
during a properly conducted Rule 11 plea colloquy.
Indeed, because they do carry such a presumption, they
present a formidable barrier in any subsequent
collateral proceedings . . . . Thus, in the absence of
extraordinary circumstances, allegations in a § 2255
motion that directly contradict the petitioner's sworn
statements made during a properly conducted Rule 11
colloquy are always palpably incredible and patently
frivolous or false.
United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005)
(citations and quotation marks omitted).
As part of his plea, petitioner admitted that his
distribution of heroin to Ms. McCarthy resulted in her death.
The PF&R explains,
During Petitioner’s plea hearing, the government
proffered that the medical examiner made findings that
are consistent with a heroin overdose, including
congestion and edema in the lungs. The proffer
further indicated that the medical examiner would
testify that after heroin is ingested, it breaks down
in a matter of minutes into morphine and 613
Case 1:18-cv-00969 Document 17 Filed 03/15/21 Page 14 of 16 PageID #: 127
monoacetylmorphine, both of which were found in
McCarthy's blood specimen.
The toxicology report indicated that McCarthy had a
lethal amount of morphine in her body. Additionally,
the medical examiner did not attribute any other
substances as contributing to or causing McCarthy’s
death. Rather, as noted above, his cause of death
finding was “acute drug: morphine from heroin
intoxication.” Moreover, at his plea hearing,
Petitioner voluntarily admitted under oath that his
distribution of heroin to McCarthy resulted in her
death.
(ECF No. 12, at 29.)
Second, unlike in Burrage, petitioner points to no expert
opinions suggesting that Ms. McCarthy would have lived but for
her use of the heroin, nor to other evidence that the heroin was
insufficient to cause her death.
Petitioner contends that this
case is just like Burrage because besides using the heroin that
he distributed to her, Ms. McCarthy allegedly drank alcohol,
smoked marijuana, and took alprazolam in the time leading up to
her death.
He says that “there was a [sic] testimony . . .
proving that Jill ha[d] been drinking, eating, taking
alprazolam, along with who knows what others were seen.”
No. 2, at 23.)
(ECF
Petitioner states that it is “questionable”
whether Ms. McCarthy died from “heroin alone.”
(Id. at 21-22.) 5
To the extent petitioner implies that the death must have
resulted in “heroin alone” in order to comport with Burrage,
petitioner is wrong. Other substances could have “played a part
in [Ms. McCarthy’s] demise, so long as, without the incremental
effect of the [heroin], [s]he would have lived.” Burrage, 571
U.S. at 211.
5
14
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He suggests that “a complete autopsy result of the lab
procedures” would help clear up the uncertainty.
Petitioner’s
speculations are insufficient to undermine the factual basis of
his conviction.
Also, petitioner acknowledged at his sentencing
that the “heroin that was given to Ms. McCarthy was
extraordinarily potent.”
(Tr. 41:20-22.)
Because there is no error at all under prong four of
Wheeler, petitioner’s objection is OVERRULED.
IV.
Conclusion
The court has reviewed the record, the Magistrate Judge’s
findings and recommendations, and petitioner’s objections.
For
the reasons discussed above, petitioner’s objections are
OVERRULED.
The court adopts the Findings and Recommendation of
Magistrate Judge Tinsley as follows:
1.
Petitioner’s § 2241 petition is DENIED;
2.
Respondent’s motion to dismiss is GRANTED;
3.
Respondent’s motion to transfer is DENIED; and
4.
This action is DISMISSED without prejudice for lack of
jurisdiction.
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.”
15
28 U.S.C.
Case 1:18-cv-00969 Document 17 Filed 03/15/21 Page 16 of 16 PageID #: 129
§ 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 send a copy of this
Memorandum Opinion and Order to counsel of record and any
unrepresented parties.
IT IS SO ORDERED this 15th day of March, 2021.
ENTER:
David A. Faber
Senior United States District Judge
16
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