Gilder v. Heckard

1

DONNELL E. GILDER, JR. Petitioner, v. FCI BECKLEY WARDEN HECKARD, Respondent.

Civil Action No. 5:22-00352

United States District Court, S.D. West Virginia, Beckley Division

May 24, 2023

PROPOSED FINDINGS AND RECOMMENDATION

Omar J. Aboulhosn, United States Magistrate Judge

Pending is Petitioner's Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241. (Document No. 1.) By Standing Order, this matter was referred to the undersigned United States Magistrate Judge for submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 2.) Having examined Petitioner's Section 2241 Petition, the undersigned finds, and hereby respectfully recommends, that Petitioner's Petition should be construed as a Motion for Authorization to File a Second or Successive Section 2255 Motion and transferred to the Seventh Circuit for further proceedings.

FACT AND PROCEDURE

A. Criminal Action No. 1:16-cr-00107:

On July 10, 2017, Petitioner pled guilty in the United States District Court for the Southern District of Indiana to two counts of Interference with Commerce by Threats or Violence in violation of 18 U.S.C. § 1951(a) (Counts 9 and 11); and two counts of Knowingly Discharging a Firearm During and in Relation to a Crime of Violence, that is, Interference with Commerce by Threats or Violence as set forth in Counts Nine and Eleven, in violation of 18 U.S.C §924(c)(1)(A)(iii) (Counts 20 and 22). United States v. Glider, Case No. 1:16-cr-00107 (S.D.In. July 20 2017), Document Nos. 43 and 55. During his Plea Hearing, the District Court informed Petitioner that the elements for Count Nine were as follows:

[F]irst, that you obtained property from another person without that person's consent; Second, that you did so by wrongful use of actual or threatened force, violence, or fear; and Third, as a result of your actions, interstate commerce or an item moving in interest commerce was actually or potentially delayed, obstructed, or affected in any way or degree.

Id., Document No. 63, pp. 8 - 9. As to Count Eleven, the District Court informed Petitioner that the elements were as follows:

[F]irst, that you attempted to obtain property from another person without that person's consent; Second, that you did so by wrongful use of actual or threatened force, violence, or fear; and Third, that as a result of your actions, interstate commerce or an item moving in interest commerce was actually or potentially delayed, obstructed, or affected in any way or degree.

Id. p. 9. As to Count Twenty, the District Court notified Petitioner that such “charges that you knowingly discharged a firearm during and in relation to the crime that is charged in Count 9.” Id., p. 10. As to Count Twenty-Two, the District Court advised Petitioner that such “charges that you knowingly discharged a firearm during and in relation to the crime charged in Count 11.” Id. Also on July 10, 2017, the District Court sentenced Petitioner to total term of imprisonment of 420 months and 1 day (“Cts. 9 & 11: 1 day per count, concurrent to each other; Ct. 20: 120 months, consecutive to all counts; and Ct. 22: 300 months, consecutive to all other counts”). Id., Document No. 56. Petitioner did not file a direct appeal.

B. Section 2255 Motion:

On July 10, 2018, Petitioner filed in the Southern District of Indiana a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255. Gilder v. United States, Case No. 1:18-cv-02096 (S.D.In. Aug. 5, 2020), Document No. 1. In his Section 2255 Motion, Petitioner asserted ineffective assistance of counsel. Id. On January 7, 2019, Petitioner filed an Amended Motion asserting the following: (1) Trial counsel was ineffective in advising Petitioner to enter into the plea agreement; (2) Section 924(c) is unconstitutionally vague; (3) Petitioner's sentence violates the Sixth Amendment; and (4) Petitioner is entitled to a sentence reduction under the First Step Act of 2018. Id., Document No. 14. The United States filed its Response in Opposition on March 28, 2019. Id., Document No. 20. On August 19, 2019, Petitioner filed his Reply. Id., Document No. 28. By “Entry Discussing Motion for Relief Pursuant to 28 U.S.C. § 2255 and Denying Certificate of Appealability” entered on August 5, 2020, the District Court denied Petitioner's Section 2255 Motion. Id., Document No. 29. Concerning Petitioner's challenge to his Section 924(c) convictions, the District Court stated as follows:

Even framed as an ineffective assistance of counsel claim, Gilder is not entitled to relief. In this case, the underlying “crime of violence” alleged was Hobbs Act robbery. The robbery of the Speedway Gas Stations plainly violated the Hobbs Act, which the Seventh Circuit has held qualifies as a crime of violence under § 924(c)'s elements clause. United States v. Fox, 878 F.3d 574, 579 (7th Cir. 2017) (collecting cases); accord, Haynes v. United States, 936 F.3d 683,690 (7th Cir. 2019). This is because it includes the use, or threatened use of physical force against the person or property of another. § 1951(b) (defining robbery). His Hobbs Act robberies therefore constitute valid predicate crimes of violence for the purposes of Gilder's convictions. Accordingly, Gilder's counsel was not ineffective for failing to challenge the constitutionality of the § 924(c) convictions.

Id. Petitioner did not file an appeal.

C. Section 3582 Motion:

On April 22, 2021, Petitioner filed in the Southern District of Indiana a Motion for Reconsideration of Sentence pursuant to 18 U.S.C. § 3582 and Memorandum in Support. Glider, Case No. 1:16-cr-00107, Document Nos. 67 and 68. Specifically, Petitioner requested compassionate release pursuant to Section 603 of the First Step Act of 2018. (Id.) The District Court appointed counsel and stayed the matter “[p]ending counsel's review and analysis of Defendant's eligibility for compassionate release pursuant to the First Step Act of 2018, and to allow counsel to communicate with Defendant regarding the attorney-client relationship.” Id., Document Nos. 73 - 74. By Order entered on September 15, 2021, the District Court lifted the stay and directed Petitioner's counsel to either (1) file an Amended Motion for Compassionate Release on behalf of Petitioner or adopt Petitioner's previously filed Motion; or (2) Move to withdraw as counsel. Id., Document No. 76. On September 29, 2021, Petitioner, by counsel, filed an Amended Motion for Compassionate Release. Id., Document No. 77. In his Amended Motion, Petitioner asserted the following: (1) Petitioner's “weight puts him at high risk for severe illness from COVID-19, which constitutes an extraordinary and compelling reason for compassionate release;” (2) Petitioner “weight places him in the category of inmates who cannot receive a benefit from vaccination under Broadfield and this constitutes an extraordinary and compelling reason warranting a sentence reduction;” (3) The district court should exercise its discretion conferred by the compassionate release statute and reduce Petitioner sentence because since Petitioner's conviction the Supreme Court determined that a “crime of violence” as defined by Section 924(c)(3)(B) is unconstitutionally vague; and (4) “The relevant § 3553(a) sentencing factors warrant modifying [Petitioner's] sentence because he has rehabilitated himself through his many years in prison.” Id., Document No. 77. Following the granting of an extension of time, the United States filed its Response in Opposition. Id., Document No. 86. On December 1, 2021, Petitioner filed his Reply. Id., Document No. 88. On July 27, 2022, Petitioner, by counsel, filed his Supplemental Notice. Id., Document No. 89. Petitioner noted that since the filing of his Reply, the United States Supreme Court issued two pertinent opinions: United States v. Taylor, __ U.S. __, 142 S.Ct. 2015, 213 L.Ed.2d 349 (2022) and Concepcion v. United States, __ U.S. __, 142 S.Ct. 2389, 213 L.Ed.2d 731 (2022). Id. Petitioner stated that in Taylor, the Supreme Court held that an attempted Hobbs Act robbery does not qualify as a “crime of violence” under Section 924(c)(3)(A). Id. Citing Concepcion, Petitioner argued that the First Act allows district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence. Id. Thus, Petitioner requested that the District Court vacate his Section 924 conviction as contained in Count Twenty-Two because the predicate conviction was for attempt Hobbs Act robbery as contained in Count Eleven. Id. By Order entered on August 4, 2022, the District Court denied Petitioner's Motion for Compassionate Release. Id., Document No. 92. The District Court stated that “[t]o the extent that [Petitioner] is arguing that his statute of conviction is unconstitutionally vague, such is a challenge to the underlying validity of his conviction and sentence, which should be raised by direct appeal or a § 2255 motion.” Id.; also see United States v. Glider, 2022 WL 3102548 (S.D.In. Aug. 4, 2022).

D. Instant Section 2241 Petition:

On April 24, 2022, Petitioner, acting pro se, filed his instant Petition for a Writ of Habeas Corpus Under 28 U.S.C § 2241.^[1] (Civil Action No. 5:22-00352, Document No. 1.) In his Petition, Petitioner challenges the validity of his Section 924(c) conviction citing United States v. Taylor, __ U.S. __, 142 S.Ct. 2015, 213 L.Ed.2d 349 (2022). (Id.) Petitioner explains that Taylor is a “retroactively applicable decision that establishes that the Petitioner may have been convicted of a nonexistent offense, that being attempted Hobbs Act robbery.” (Id.) Petitioner asserts that the Supreme Court in Taylor held that attempted Hobbs Act robbery is not a “crime of violence” pursuant to 18...