Ham v. Breckon

994 F.3d 682

John Forrest HAM, Jr., Petitioner – Appellant,

v.Warden M. BRECKON, Respondent – Appellee.

Kathryn Margaret Barber, Esq., Court-Assigned Amicus Counsel.

No. 20-6972

United States Court of Appeals, Fourth Circuit.

Argued: January 28, 2021

Decided: April 20, 2021

ARGUED: Lisa M. Lorish, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellant. Jennifer R. Bockhorst, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee. Kathryn Margaret Barber, MCGUIREWOODS LLP, Richmond, Virginia, Court-Assigned Amicus Counsel. ON BRIEF: Juval O. Scott, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. Thomas T. Cullen, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. Matthew A. Fitzgerald, MCGUIREWOODS LLP, Richmond, Virginia, Court-Assigned Amicus Counsel.

Before AGEE, THACKER, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge Agee and Judge Quattlebaum joined.

THACKER, Circuit Judge:

John Forrest Ham, Jr. ("Petitioner") appeals the district court's dismissal of his 28 U.S.C. § 2241 habeas petition for lack of jurisdiction. He claims that, pursuant to United States v. Wheeler , 886 F.3d 415 (4th Cir. 2018), the district court was permitted to address the merits of his petition. Wheeler provides a four-part test for a federal prisoner who wishes to seek relief from an allegedly defective sentence, where remedy by a 28 U.S.C. § 2255 motion would be "inadequate or ineffective." 28 U.S.C. § 2255(e) (commonly known as the "savings clause").¹ Relevant to this appeal, Wheeler requires that, in order for a district court to possess jurisdiction to consider a § 2241 petition pursuant to the savings clause, a petitioner must demonstrate a retroactive change in settled substantive law subsequent to his direct appeal and first § 2255 motion.

Petitioner claims that in his case, Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 195 L.Ed.2d 604 (2016), satisfies this requirement. Specifically, he argues Mathis changed "well-settled substantive law" regarding how a sentencing court should apply the categorical approach.² Pet'r’s Br. 11. The district court rejected this argument, and we affirm. To the extent Petitioner contends Mathis changed settled substantive Supreme Court law, Mathis itself made clear that it was not changing, but rather clarifying, the law. To the extent Petitioner contends Mathis changed settled Fourth Circuit law, for the reasons that follow, we are not convinced. Therefore, Petitioner cannot meet the high bar to pass through the savings clause and have his § 2241 petition heard on the merits.

I.

A.Procedural History

1.Petitioner's Plea and Sentencing

On May 12, 2010, Petitioner pled guilty in the United States District Court for the District of South Carolina ("DSC") to (1) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), with three prior convictions for a violent felony or a serious drug offense, see id. § 924(e)(1) (the Armed Career Criminal Act ("ACCA")); (2) carjacking, in violation of 18 U.S.C. § 2119(1) ; and (3) possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1).

Petitioner was sentenced on September 10, 2010, to a total term of 319 months, consisting of 235 months on the ACCA count and 180 months on the carjacking count, to run concurrently. On the § 924(c) count, Petitioner received a sentence of 84 months, to run consecutively to the ACCA and carjacking sentences. By his § 2241 petition, Petitioner seeks to challenge his sentencing enhancement pursuant to the ACCA, which provides:

In the case of a person who violates section 922(g) of this title and has three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years ....

[T]he term "violent felony" means any crime punishable by imprisonment for a term exceeding one year that ... is burglary ....

18 U.S.C. § 924(e)(1), (e)(2)(B)(ii) (emphases supplied). Applying the modified categorical approach, the DSC sentenced Petitioner to an enhanced sentence based in part on his prior conviction for South Carolina third-degree burglary,³ which provides, "A person is guilty of burglary in the third degree if the person enters a building without consent and with intent to commit a crime therein." S.C. Code Ann. § 16-11-313(A) (emphasis supplied). "Building" is defined to include "any structure, vehicle, watercraft, or aircraft ... [w]here any person lodges or lives ... people assemble ... or where goods are stored." Id. § 16-11-310(1). This court affirmed Petitioner's conviction and sentence on July 12, 2011. See United States v. Ham , 438 F. App'x 183 (4th Cir. 2011) (per curiam).

2.

Post-Conviction Litigation

a.

In July 2012, Petitioner filed his first § 2255 motion to vacate his sentence, raising several ineffective assistance of counsel claims, including a claim his attorney should have argued that South Carolina third degree burglary "is not an armed career criminal [p]redicate." Mot. at 6, United States v. Ham , No. 6:10-cr-46 (D.S.C. filed July 5, 2012), ECF No. 44. While that motion was pending, the Supreme Court decided Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), holding that courts may not apply the modified categorical approach to an ACCA sentencing when the offense of conviction has a single, indivisible set of elements.

On August 9, 2013, seven weeks after Descamps was decided, the DSC dismissed Petitioner's first § 2255 motion as without merit. In addressing the ineffective assistance claim grounded in the ACCA, the DSC explained that trial counsel was not ineffective for failing to argue that South Carolina third degree burglary is not an ACCA predicate because "there was no basis for [Petitioner's] defense counsel to object." United States v. Ham , No. 6:10-cr-46, 2013 WL 4048988, at *3 (D.S.C. Aug. 9, 2013). The DSC explained, "[B]ecause some states broadly define burglary to include places other than buildings, the categorical approach may be modified to ‘permit the sentencing court to go beyond the mere fact of conviction.’ " Id. (quoting Taylor v. United States , 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ). The DSC also cited this court's unpublished decision in United States v. Hickman , which held that when analyzing South Carolina third degree burglary, the court "may rely on a prepared presentence investigations report ... to determine whether a prior crime qualifies as a predicate offense under the ACCA." Id. (quoting Hickman , 358 F. App'x 488, 489 (4th Cir. 2009) (per curiam)). It then looked to Petitioner's PSR and saw that Petitioner's "state burglary conviction was committed when [Petitioner] forced open the front door of [the victim's] residence and entered the residence"; therefore, the offense constituted a generic burglary for purposes of the ACCA. Id. The DSC did not cite Descamps , and Petitioner did not appeal.

b.

Three years later, the Supreme Court decided Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 195 L.Ed.2d 604 (2016). Petitioner thereafter filed a pro se § 2241 petition in the district of his confinement, the United States District Court for the Western District of Virginia ("WDVA"), arguing that pursuant to Mathis , and employing the categorical approach (not modified), South Carolina third degree burglary is not a violent felony. Pet. at 2, Ham v. Breckon , No. 7:17-cv-295 (W.D. Va. June 23, 2017), ECF No. 1. The WDVA construed the § 2241 petition as a § 2255 motion and transferred it to the DSC, the district of sentencing. The WDVA also opined that § 2241 relief was not available because Mathis "had no effect on the criminality of [Petitioner's] federal offense conduct," and this court had not yet concluded that a prisoner could challenge the legality of his sentence via the savings clause. Mem. Op. at 2, id. (W.D. Va. June 27, 2017), ECF No. 3.

On March 2, 2018, the DSC dismissed the transferred § 2255 motion as successive. Later that same month, we decided United States v. Wheeler , setting forth a four-part test for prisoners wishing to the challenge the legality of their sentence pursuant to the savings clause of § 2255(e). See 886 F.3d 415 (4th Cir. 2018). The test requires:

(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.

Id. at 429.

Petitioner promptly filed a motion to alter or amend in the DSC, asking that court to reassess its order dismissing his § 2255 motion as successive in light of Wheeler . On January 7, 2019, the DSC denied the motion, concluding "[Petitioner] cannot meet the second prong of Wheeler " because Petitioner "d[id] not rely on a retroactively applicable change in substantive law." Order at 2–3, No. 6:10-cr-46 (D.S.C. Jan. 7, 2018), ECF No. 131. Petitioner appealed, and we denied a certificate of appealability and dismissed the appeal. See United States v. Ham , 773 F. App'x 746 (4th Cir. 2019) (per curiam).

While the motion to reconsider was pending in the DSC, on December 31, 2018, Petitioner filed the instant pro se § 2241 petition in the WDVA, alleging that he could meet Wheeler ’s four prongs because his sentencing enhancement was misapplied "in light of subsequent caselaw establishing that [his]...