Lovett v. LaManna Doc.

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4:05-cv-03026-DCN Date Filed 11/09/2005 Entry Number 4 Page 1 of 10

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

Joseph Lovett, #15860-004, ) C/A No. 4:05-3026-DCN-TER

)
Petitioner, )
)
vs. ) Report and Recommendation
)
John LaManna, FCI Edgefield, )
)
Respondent. )
___________________________________________

BACKGROUND OF THIS CASE

The petitioner is a federal inmate at FCI-Edgefield. He is serving a 268 month sentence for violating

sections of the United States Code. Petitioner’s conviction and sentence were entered in the United States

District Court for the Southern District of Georgia. The conviction was upheld on direct appeal by the

United States Court of Appeals for the Eleventh Circuit. The petitioner has filed two (2) motions to vacate

pursuant to 28 U.S.C. § 2255 in the United States District Court for the Southern District of Georgia. He

alleges both motions to vacate were denied.

In the § 2241 petition the petitioner raises three (3) grounds. Specifically, the petitioner contends:

(1) due to a change in Constitutional law the enhanced sentence that petitioner received was in violation of

the Constitution; (2) failure of the Court to use a “Special Verdict Form” deprived the Court of jurisdiction

to hear the case, and created a “Dale/Rhynes” violation as to which drug type to attribute to the petitioner;

and (3) the “Savings Claus” of Section 2255 provides petitioner with a forum for his claims because Section

2255 inadequate and ineffective to substantiate his actual innocence claim. Petitioner cites to, inter alia,

Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 2004 WL 1402697, 542 U.S. 296

(June 24, 2004) and United States v. Booker, 125 S.Ct. 738, 160 L.Ed2d 621 (January 12, 2005), as a basis

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for his claims.

DISCUSSION

Under established local procedure in this judicial district, a careful review has been made of the pro

se petition to the procedural provisions of 28 U.S.C. § 1915, 28 U.S.C. § 1915A, the Anti-Terrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), and other habeas corpus statutes. The review has been

conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25, 60 U.S.L.W. 4346, 118

L.Ed.2d 340, 112 S.Ct. 1728 (1992); Neitzke v. Williams, 490 U.S. 319, 324-325 (1989); Haines v. Kerner,

404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en

banc), cert. denied, Nasim v. Warden, Maryland House of Correction, 516 U.S. 1177 (1996); Todd v.

Baskerville, 712 F.2d 70 (4th Cir. 1983); and Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979)(recognizing

the district court’s authority to conduct an initial screening of a pro se filing).1 Pro se complaints and

petitions are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d

1147, 1151 (4th Cir.), cert. denied, Leeke v. Gordon, 439 U.S. 970 (1978), and a federal district court is

charged with liberally construing a complaint or petition filed by a pro se litigant to allow the development

of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9-10 & n. 7 (1980)(per curiam); and

Cruz v. Beto, 405 U.S. 319 (1972). When a federal court is evaluating a pro se complaint, petition, or

pleading, the plaintiff's or petitioner's allegations are assumed to be true. Fine v. City of New York, 529

F.2d 70, 74 (2nd Cir. 1975). However, even under this less stringent standard, the § 2241 petition, which

raises claims under 28 U.S.C. § 2255, is subject to summary dismissal. The requirement of liberal

1
Boyce has been held by some authorities to have been abrogated in part, on other grounds, by
Neitzke v. Williams, 490 U.S. 319 (1989)(insofar as Neitzke establishes that a complaint that fails
to state a claim, under Federal Rule of Civil Procedure 12(b)(6), does not by definition merit sua
sponte dismissal under 28 U.S.C. § 1915(e)(2)(B)(i) [formerly 28 U.S.C. § 1915(d)], as “frivolous”).

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construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set

forth a claim currently cognizable in a federal district court. Weller v. Department of Social Services, 901

F.2d 387 (4th Cir. 1990).

The mandated liberal construction afforded to pro se pleadings 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, but a district

court may not rewrite a petition or pleading to include claims that were never presented, Barnett v. Hargett,

174 F.3d 1128, 1133 (10th Cir. 1999), or construct the petitioner's legal arguments for him, Small v.

Endicott, 998 F.2d 411, 417-418 (7th Cir. 1993), or “conjure up questions never squarely presented” to the

court. See Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985), cert. denied, 475 U.S. 1088

(1986). “If the petition be frivolous or patently absurd on its face, entry of dismissal may be made on the

court's own motion without even the necessity of requiring a responsive pleading from the government.”

Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

Prior to enactment of 28 U.S.C. § 2255, the only way a federal prisoner could collaterally attack a

federal conviction was through a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. See

Triestman v. United States, 124 F.3d 361, 373 (2nd Cir. 1997). In 1948, Congress enacted § 2255 primarily

to serve as a more efficient and convenient substitute for the traditional habeas corpus remedy. See In re

Dorsainvil, 119 F.3d 245, 249 (3rd Cir. 1997)(collecting cases).

"[A] prisoner who challenges his federal conviction or sentence cannot use the federal habeas corpus

statute at all but instead must proceed under 28 U.S.C. § 2255." Waletzki v. Keohane, 13 F.3d 1079, 1080,

(7th Cir.1994). Since the petitioner is seeking relief from his conviction and sentence, the relief requested

by the petitioner in the above-captioned matter is available, if at all, under 28 U.S.C. § 2255. See United

States v. Morehead, 2000 WESTLAW® 1788398 (N.D.Ill., December 4, 2000):

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Notwithstanding Bennett captioning this pleading under Federal Rule of Criminal Procedure
12(b)(2), this court must construe it as a motion attacking his sentence under 28 U.S.C.
§ 2255. Regardless of how a defendant captions a pleading, “any post-judgment motion in
a criminal proceedings that fits the description of § 2255 ¶ 1 is a motion under § 2255....”
United States v. Evans, 224 F.3d 670, 672 (7th Cir. 2000). In the pleading at bar, Bennett
argues that the court did not have jurisdiction over his criminal case, which is one of the
bases for relief under § 2255 ¶ 1. Therefore, this court must construe this motion as a § 2255
motion.

United States v. Morehead, supra.

Congress enacted § 2255 “because pertinent court records and witnesses were located in the

sentencing district (and it was) impractical to require these petitions to be filed in the district of

confinement”. Dumornay v. United States, 25 F.3d 1056 (Table), 1994 WL 170752 (10th Cir. 1994). Thus,

“the remedy provided by 2255 was intended to be as broad as that provided by the habeas corpus remedy”.

Dumornay, supra, citing United States v. Addonizio, 442 U.S. 178, 185 (1979). Since relief granted

pursuant to § 2255 “is as broad as that of habeas corpus ‘it supplants habeas corpus, unless it is shown to

be inadequate or ineffective to test the legality of the prisoner’s detention’”. Dumornay, supra, citing

Williams v. United States, 323 F.2d 672, 673 (10th Cir. 1963), cert. denied, 377 U.S. 980 (1964). If a

prisoner’s § 2255 motion is denied by a sentencing court, the denial itself is not sufficient to demonstrate

that the § 2255 motion was inadequate, or ineffective. Williams, supra.

The petitioner relies on Apprendi v. New Jersey, 530 U.S. 466, 68 U.S.L.W. 4576, 147 L.Ed.2d 435,

120 S.Ct. 2348, 2362-2363 (2000):

* * * Other than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt. With that exception, we endorse the statement of the rule set forth in
the concurring opinions in that case: "[I]t is unconstitutional for a legislature to remove from
the jury the assessment of facts that increase the prescribed range of penalties to which a
criminal defendant is exposed. It is equally clear that such facts must be established by
proof beyond a reasonable doubt."

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Apprendi v. New Jersey, supra.

Since the United States Supreme Court did not hold that its decision in Apprendi is retroactive, the

above-captioned case would be controlled by In Re Vial, 115 F.3d 1192, 1194-1198 (4th Cir. 1997)(en

banc). In that matter, the Fourth Circuit determined that the decision of the United States Supreme Court

in Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501, 133 L.Ed.2d 472 (1995) did not establish “a new

rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court” within the

meaning of 28 U.S.C. § 2255. In reaching this conclusion, the Fourth Circuit noted that “...the Bailey Court

clearly considered itself to be engaged in statutory construction...”. Vial @ 1195. The Fourth Circuit stated

that “the decision of the Supreme Court in Bailey did not announce a new rule of constitutional law and

accordingly may not form the basis for a second or successive motion to vacate sentence pursuant to 28

U.S.C. § 2255.” Vial @ 1195.

In addition, the Fourth Circuit held that Bailey, supra, had not been made “retroactive to cases on

collateral review”. Citing § 2255, the Fourth Circuit stated that any other reading of the statute would be

“contrary to the plain language of the AEDPA”. The Court concluded that:

a new rule of constitutional law has been ‘made retroactive to cases on

collateral review by the Supreme Court’ within the meaning of § 2255 only
when the Supreme Court declares the collateral availability of the rule in
question, either by explicitly so stating or by applying the rule in a collateral
proceeding. Because the Supreme Court has done neither with respect to the
rule announced in Bailey, Vial would not be entitled to file a successive §
2255 motion based on Bailey even if it contained a rule of constitutional law.2

Vial @ 1196.

2
The statute of limitations does not begin to run until “the date on which the right asserted was
initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255.
Accordingly, the Fourth Circuit takes the position that as long as the Supreme Court has not yet ruled
on the collateral availability of a rule, the limitations period does not begin to run.

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Furthermore, the Court in Vial, supra, made clear that the inability to file a second or successive

petition was not a suspension of the writ. The Fourth Circuit said:

Vial’s constitutional argument is foreclosed by the recent decision of the

Supreme Court in Felker v. Turpin, 518 U.S. 651, ---- - ----, 116 S. Ct. 2333,
2339-40, 135 L.Ed.2d 827 (1996). In Felker, the Supreme Court determined
that the provisions of the AEDPA limiting second and successive habeas
corpus petitions by persons convicted in state courts does not constitute a
suspension of the writ. See id. Rather, the Court stated that the limitations
imposed by the AEDPA were simply an illustration of the longstanding
principle that “the power to award the writ by any of the courts of the United
States, must be given by written law.’” Id. at ----, 116 S. Ct. at 2340 (quoting
Ex Parte Bollman, 8 U.S. (4 Cranch) 75, 94, 2 L.Ed. 554 (1807)). The
limitations on habeas corpus relief from state-court judgements of conviction
contained in the AEDPA, the Court reasoned, amounted to an entirely proper
exercise of Congress’ judgement regarding the proper scope of the writ [FN
11] and fell “well within the compass of [the] evolutionary process”
surrounding the doctrine of abuse of the writ. Id. We conclude that the
reasoning of the Court with respect to limitations on second or successive
habeas petitions pursuant to §2254 applies with equal force to the identical
language in §2255. Accordingly, the limitations imposed on a second and
successive §2255 motions by the AEDPA do not constitute a suspension of
the writ.

Vial @ 1197-98 citing Felker, supra. In footnote 11 the of the Vial decision the Fourth Circuit noted:

In reaching this conclusion, the Court “assume[d]...that the Suspension

Clause of the Constitution refers to the writ as it exists today, rather than as
it existed in 1789.” Felker, 518 U.S. at ----, 116 S.Ct. At 2340. Although
we need not address this issue, we note that the Seventh Circuit has reasoned
persuasively that the right to collateral review of state-court judgements of
courts possessing jurisdiction is statutory, not constitutional, in nature and
thus may be restricted as Congress sees fit. See Lindh v. Murphy, 96 F.3d
856, 867-68 (7th Cir. 1996) (en banc) (“Any suggestion that the Suspension
Clause forbids every contraction of the powers bestowed by congress in 1885,
and expanded by the 1948 and 1966 amendments to §2254 is untenable. The
Suspension Clause is not a ratchet.”), cert. granted, 519 U.S. 1074, 117 S.Ct.
726, 136 L.Ed.2d 643 (1997).

Vial @ 1198 FN 11.

The same result would apply then, where one, such as the petitioner, seeks to attack collaterally his

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conviction and sentence under Apprendi and other cases. As earlier stated, the Supreme Court of the United

States in Apprendi did not address the retroactivity issue. Thus, as in Vial, that opinion is not properly raised

in a collateral attack by a prisoner, such as the petitioner, whose conviction was final when Apprendi was

decided.

Similarly, the holdings in Blakely v. Washington, 2004 WL 1402697, 542 U.S. 296 (June 24, 2004),

and United States v. Booker, 125 S.Ct. 738, 160 L.Ed2d 621 (January 12, 2005), do not help the petitioner.

In Blakely, supra, the United States Supreme Court held that a state court’s sentencing of defendant to more

than three years above the fifty-three (53) month statutory maximum of the standard range for his offense,

on basis of sentencing judges finding that defendant acted with deliberate cruelty, violated defendant’s Sixth

Amendment right to trial by jury). In Booker, supra, the United States Supreme Court held that the federal

sentencing guidelines are subject to the jury trial requirements of the Sixth Amendment and the Sixth

Amendment requirement that a jury find certain sentencing facts was incompatible with the Federal

Sentencing Act. In both cases, as in Apprendi, supra, the Court failed to make the these cases retroactive

to cases on collateral review.

Finally, the petitioner’s attention is directed to the decisions of the United States Court of Appeals

for the Fourth Circuit in United States v. Sanders, 247 F.3d 139 (4th Cir. 2001), cert. denied, Sanders v.

United States, 534 U.S. 1032, 151 L.Ed.2d 445, 122 S.Ct. 573 (2001)[Table]; and San-Miguel v. Dove,

291 F.3d 257 (4th Cir. 2002), cert. denied, San-Miguel v. Dove, 537 U.S. 938, 154 L.Ed.2d 242, 123 S.Ct.

46 (2002), and cert. denied, Young v. Conley, 537 U.S. 938, 123 S.Ct. 46 (2002)[Table], both of which

raised claims under Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed.2d 435, 120 S.Ct. 2348, 2362-2363

(2000). In Sanders, the Court of Appeals held that the new rule in Apprendi is not applicable to cases on

collateral review. In San-Miguel, the Court of Appeals upheld this court’s summary dismissal of a § 2241

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action raising Apprendi claims. Collateral review in federal court includes habeas corpus actions under 28

U.S.C. § 2255, 28 U.S.C. § 2241, and 28 U.S.C. § 2254. Since the claims raised by the petitioner are indeed

Apprendi-type claims, the petitioner’s claims are not cognizable under 28 U.S.C. § 2241 under the holdings

in San Miguel and Sanders. Cf. United States v. Winestock, 340 F.3d 200 (4th Cir. 2003), cert. denied,

Winestock v. United States, 157 L.Ed.2d 395, 124 S.Ct. 496 (2003). Of course, the rules in Vial, Sanders,

San-Miguel, and Conley may not be applicable in the Eleventh Circuit where petitioner must seek leave to

file a successive action under 28 U.S.C. § 2255. The possibility that a § 2255 petition filed by the petitioner

might be untimely, successive, or decided adversely to the petitioner does not render the § 2255 remedy

inadequate or ineffective. See Lewis v. United States, 2000 WESTLAW® 1889639, *3 (D.Mass.,

December 22, 2000):

The gatekeeping provision of the Antiterrorism and Effective Death Penalty Act of 1996 (the
"AEDPA") requires a petitioner to apply to the appropriate court of appeals for permission
to file a "second or successive" § 2255 petition in the district court. 28 U.S.C.
§ 2244(b)(3)(A) (as incorporated in 28 U.S.C. § 2255); Pratt v. United States, 129 F.3d 54,
57 (1st Cir.1997). A petition for relief under § 2255 should be considered as a second or
successive petition only if a district court reviewed the previous § 2255 petition on its merits.
A district court lacks subject matter jurisdiction to entertain an unapproved second or
successive § 2255 petition and must either dismiss it or transfer it to the appropriate court
of appeals. United States v. Barrett, 178 F.3d 34, 41 (1st Cir.1999).

Lewis' first § 2255 petition was denied on the merits. Thus, the instant petition is a second
or successive petition, despite the fact that it raises Apprendi claims that could not have been
raised in the first petition which was filed prior to the United State Supreme Court's decision
in Apprendi. See Sustache-Rivera v. United States, 221 F.3d 8, 14 (1st Cir.2000)(noting,
without deciding, that several courts of appeal have routinely treated numerically successive
§ 2555 petitions based upon new Supreme Court decisions as "second or successive" under
the AEDPA). See also In re Joshua, 224 F.3d 1281, 1281-1282 (11th Cir.2000)(regarding
numerically successive § 2255 petition based on Apprendi claims as "second or successive").

Lewis v. United States, supra.

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In summary then, to the extent that the petitioner is alleging that he MUST be allowed to proceed

under 28 U.S.C. Section 2241 because he would be without a remedy, his argument is misplaced. Congress

saw fit to limit the availability of Section 2255 petitions, and the United States Supreme Court determined

in Felker that Congress was within its right to do so under the AEDPA. To determine that Congress limited

the availability of Section 2255 on the one hand, but intended to allow petitioners the availability of the Writ

under Section 2241 on the other hand, would clearly be contrary to the purpose of the AEDPA.

RECOMMENDATION

Accordingly, it is recommended that the § 2241 petition be dismissed without prejudice and without

requiring the respondent to file a return. See Allen v. Perini, 424 F.2d 134, 141 (6th Cir.)(federal district

courts have duty to screen habeas corpus petitions and eliminate burden placed on respondents caused by

ordering an unnecessary answer or return), cert. denied, Allen v. Perini, 400 U.S. 906 (1970)[Table]; Toney

v. Gammon, 79 F.3d 693, 697 (8th Cir. 1996)(“However, a petition may be summarily dismissed if the

record clearly indicates that the petitioner's claims are either barred from review or without merit.”); Baker

v. Marshall, 1995 WESTLAW® 150451 (N.D.Cal., March 31, 1995)("The District Court may enter an order

for the summary dismissal of a habeas petition if it plainly appears from the face of the petition and any

exhibits annexed to it that the petitioner is not entitled to relief in this Court."); and the Anti-Terrorism and

Effective Death Penalty Act of 1996. The petitioner's attention is directed to the important notice on the next

page.

s/Thomas E. Rogers, III

Thomas E. Rogers, III
United States Magistrate Judge
November 7, 2005
Florence, South Carolina

Notice of Right to File Objections to Magistrate Judge's "Report and Recommendation"

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&
The Serious Consequences of a Failure to Do So
The parties are hereby notified that any objections to the attached Report and Recommendation (or Order and Recommendation) must
be filed within ten (10) days of the date of service. 28 U.S.C. § 636 and Fed. R. Civ. P. 72(b). The time calculation of this ten-day period
excludes weekends and holidays and provides for an additional three days for filing by mail. Fed. R. Civ. P. 6. A magistrate judge makes only
a recommendation, and the authority to make a final determination in this case rests with the United States District Judge. See Mathews v.
Weber, 423 U.S. 261, 270-271 (1976); and Estrada v. Witkowski, 816 F. Supp. 408, 410, 1993 U.S.Dist. LEXIS® 3411 (D.S.C. 1993).

During the ten-day period for filing objections, but not thereafter, a party must file with the Clerk of Court specific, written objections
to the Report and Recommendation, if he or she wishes the United States District Judge to consider any objections. Any written objections
must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections.
See Keeler v. Pea, 782 F. Supp. 42, 43-44, 1992 U.S.Dist. LEXIS® 8250 (D.S.C. 1992); and Oliverson v. West Valley City, 875 F. Supp. 1465,
1467, 1995 U.S.Dist. LEXIS® 776 (D.Utah 1995). Failure to file written objections shall constitute a waiver of a party's right to further judicial
review, including appellate review, if the recommendation is accepted by the United States District Judge. See United States v. Schronce, 727
F.2d 91, 94 & n. 4 (4th Cir.), cert. denied, Schronce v. United States, 467 U.S. 1208 (1984); and Wright v. Collins, 766 F.2d 841, 845-847
& nn. 1-3 (4th Cir. 1985). Moreover, if a party files specific objections to a portion of a magistrate judge's Report and Recommendation, but
does not file specific objections to other portions of the Report and Recommendation, that party waives appellate review of the portions of the
magistrate judge's Report and Recommendation to which he or she did not object. In other words, a party's failure to object to one issue in a
magistrate judge's Report and Recommendation precludes that party from subsequently raising that issue on appeal, even if objections are filed
on other issues. Howard v. Secretary of HHS, 932 F.2d 505, 508-509, 1991 U.S.App. LEXIS® 8487 (6th Cir. 1991). See also Praylow v.
Martin, 761 F.2d 179, 180 n. 1 (4th Cir.)(party precluded from raising on appeal factual issue to which it did not object in the district court),
cert. denied, 474 U.S. 1009 (1985). In Howard, supra, the Court stated that general, non-specific objections are not sufficient:

A general objection to the entirety of the [magistrate judge's] report has the
same effects as would a failure to object. The district court's attention is not
focused on any specific issues for review, thereby making the initial reference
to the [magistrate judge] useless. * * * This duplication of time and effort
wastes judicial resources rather than saving them, and runs contrary to the
purposes of the Magistrates Act. * * * We would hardly countenance an
appellant's brief simply objecting to the district court's determination without
explaining the source of the error.

Accord Lockert v. Faulkner, 843 F.2d 1015, 1017-1019 (7th Cir. 1988), where the Court held that the appellant, who proceeded pro se in the
district court, was barred from raising issues on appeal that he did not specifically raise in his objections to the district court:

Just as a complaint stating only 'I complain' states no claim, an objection

stating only 'I object' preserves no issue for review. * * * A district judge
should not have to guess what arguments an objecting party depends on when
reviewing a [magistrate judge's] report.

See also Branch v. Martin, 886 F.2d 1043, 1046, 1989 U.S.App. LEXIS® 15,084 (8th Cir. 1989)("no de novo review if objections are untimely
or general"), which involved a pro se litigant; and Goney v. Clark, 749 F.2d 5, 7 n. 1 (3rd Cir. 1984)("plaintiff's objections lacked the specificity
to trigger de novo review"). This notice, hereby, apprises the plaintiff of the consequences of a failure to file specific, written objections. See
Wright v. Collins, supra; and Small v. Secretary of HHS, 892 F.2d 15, 16, 1989 U.S.App. LEXIS® 19,302 (2nd Cir. 1989). Filing by mail
pursuant to Fed. R. Civ. P. 5 may be accomplished by mailing objections addressed as follows:

Larry W. Propes, Clerk

United States District Court
Post Office Box 2317
Florence, South Carolina 29503

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