Bivins v. Dunbar

1

Brandon Bivins, Petitioner, v. R. Dunbar, Respondent.

C. A. No. 6:22-cv-01765-SAL-KFM

United States District Court, D. South Carolina, Greenville Division

June 14, 2022

REPORT OF MAGISTRATE JUDGE

Kevin F. McDonald, United States Magistrate Judge

The petitioner, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2241 for habeas relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court. For the reasons set forth below, it is recommended that the petitioner's § 2241 petition be dismissed without prejudice and without requiring the respondent to file an answer or return.

BACKGROUND

Petitioner's Conviction and Sentence

On February 8, 2013, the petitioner was found guilty by a jury of unlawful possession of a firearm.^[1] See United States v Bivins, C/A No. 9:12-cr-80220-DTKH-1, at doc. 51 (S.D Fl.). The petitioner was sentenced to a total of two hundred and thirty-five months' imprisonment, to be followed by three years supervised release. Id. at doc. 60. The petitioner appealed, and the Eleventh Circuit affirmed his conviction and sentence. See United States v Bivins, C/A No. 13-11966-DD (11th Cir. June 16, 2014).

Petitioner's § 2255 Motion

The petitioner filed his first § 2255 motion on June 23 2016. United States v. Bivins, C/A No. 9:12-cr-80220-DTKH-1, at doc. 100. The motion was given a civil action number, and proceedings relating to the motion were completed at Case Number 9:16-cv-81059-DTKH. In the motion, the petitioner challenged the Armed Career Criminal Act (“ACCA”) enhancement applied to his sentence, arguing that prior Florida convictions for aggravated assault and aggravated assault with a deadly weapon were no longer ACCA predicates under Johnson v. United States, 576 U.S. 591 (2015). United States v. Bivins, C/A No. 9:16-cv-81059-DTKH, at doc. 1 (S.D. Fl.). The petitioner's motion was denied on December 12, 2017. Id. at doc. 17. The petitioner appealed, but the Eleventh Circuit affirmed the denial of the petitioner's § 2255 motion. Id. at doc. 23; Bivins v. United States, C/A No. 18-10603 (11th Cir. Aug. 28, 2018).

Petitioner's Present Action

Here, the petitioner seeks habeas relief pursuant to 28 U.S.C. § 2241, claiming that his Florida aggravated assault convictions do not qualify as violent felony predicates under the ACCA based upon Borden v. United States, 141 S.Ct. 1817 (2021) (doc. 1). For relief, the petitioner seeks to be re-sentenced without the ACCA enhancement, which he contends would result in a finding of time served (id. at 7).

STANDARD OF REVIEW

The undersigned has reviewed the petition pursuant to the Rules Governing Section 2254 Cases in the United States District Courts; the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214; and other habeas corpus statutes. As a pro se litigant, the petitioner's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (percuriam). The mandated liberal construction means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. However, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).

DISCUSSION

The petitioner filed this action pursuant to 28 U.S.C. § 2241 (doc. 1). Because the petitioner is incarcerated in the District of South Carolina and he names the warden of FCI Williamsburg as the respondent, his § 2241 petition is properly filed in this Court. Liberally construing the petitioner's allegations, the petitioner seeks to utilize the § 2255 savings clause test in order to attack the validity of his federal sentence, arguing that his sentence was illegally enhanced under the ACCA based upon Borden v. United States, 141 S.Ct. 1817 (2021) (doc. 1). As set forth in more detail below, the petition should be dismissed without prejudice and without requiring the respondent to file an answer or return.

As affirmed in Wheeler, the § 2255 savings clause test is jurisdictional. United States v. Wheeler 886 F.3d 415, 426 (4th Cir. 2018). The court may sua sponte raise subject matter jurisdiction, and the Court of Appeals has held that if a petitioner cannot meet the savings clause requirements, then the § 2241 petition “must be dismissed for lack of jurisdiction.” Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010). Because the § 2255 savings clause is a jurisdictional requirement, an analysis of whether the petitioner meets the savings clause test is appropriate for initial review under § 1915.

Unlike a § 2255 motion, which is filed in the trial and sentencing court, a § 2241 petition is filed in the district where the petitioner is incarcerated. See 28 U.S.C. § 2241(a); In re: Jones, 226 F.3d 328, 332 (4th Cir. 2000). “Generally, a § 2241 petition ‘attacks the execution of a sentence rather than its validity,' whereas a § 2255 motion ‘attacks the legality of detention.'” Rice v. Lamanna, 451 F.Supp.2d 755, 758 (D.S.C. 2006) (quoting Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)); see United States v. Miller, 871 F.2d 488, 489-90 (4th Cir. 1989) (distinguishing between attacks to the “computation and execution of the sentence rather than the sentence itself”). Thus, “defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255.” Rice v. Rivera, 617 F.3d at 807 (citing In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997)). However, § 2255 includes a savings clause, which permits a district court to consider a § 2241 petition challenging the validity of the prisoner's conviction or sentence when § 2255 is “inadequate or ineffective to test the legality of . . . detention.” 20 U.S.C. § 2255(e); Jones, 226 F.3d at 333. Accordingly, the petitioner cannot challenge his federal conviction and sentence under § 2241 unless he can satisfy the requirements of the § 2255 savings clause, 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.

28 U.S.C. § 2255(e). In other words, as applied here, the petitioner's § 2241 action is barred unless he can demonstrate that the relief available to him under § 2255 is inadequate or ineffective. The petitioner asserts that relief under § 2255 is unavailable to him because the substantive law changed after his direct appeal and first § 2255 (doc. 1 at 4) however, “the remedy afforded by § 2255 is not rendered inadequate or ineffective merely because an individual has been unable to obtain relief under that provision, or because an individual is procedurally barred from filing a § 2255 motion.” See In re Vial, 115 F.3d at 1194 n.5 (citations omitted).

To trigger the “savings clause” of § 2255(e) and proceed under § 2241, the petitioner must meet the savings clause test as contemplated in United States v. Wheeler, 886 F.3d 415 (challenges to sentences) or In re Jones, 226 F.3d 328 (challenges to convictions). Here, as noted, the petitioner challenges his sentence, so his case will be evaluated under the savings clause test enumerated in Wheeler.

The Wheeler test sets forth when a petitioner may meet the savings clause under § 2255 to contest his sentence. The Court of Appeals noted that:

[Section] 2255 is inadequate and ineffective to test the legality of a sentence 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 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 at 429 (citations omitted).

The petitioner argues that his sentence was unlawfully enhanced under the ACCA because two of his predicate convictions (Florida aggravated assault convictions) are no longer crimes of violence based upon Borden (doc. 1 at 6). The petitioner, however, cannot meet the second Wheeler factor with respect to his ground for relief: that “subsequent to [his] direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review.” Wheeler, 886 F.3d at 429. First, it is clear that Borden was decided after the petitioner's direct appeal and first § 2255 motion; however, at question is whether Borden changed settled substantive law of the Eleventh Circuit (the sentencing circuit) and whether Borden has been deemed to apply retroactively on collateral review.

First the undersigned addresses whether Borden changed the settled substantive law underlying the petitioner's sentence for purposes of Wheeler. Specifically, the inquiry is whether a Florida conviction for aggravated assault still...