Butler v. Warden, Williamsburg FCI
| Decision Date | 31 March 2021 |
| Docket Number | C/A No. 4:20-975-MBS |
| Parties | Gus Butler, a/k/a Gus Junior Butler, Petitioner, v. Warden, Williamsburg FCI, Respondent. |
| Court | U.S. District Court — District of South Carolina |
Petitioner Gus Butler is an inmate in custody of the Federal Bureau of Prisons who currently is housed at Williamsburg FCI in Salters, South Carolina. On March 9, 2020, Petitioner filed a motion under the 28 U.S.C. § 2255(e) "'savings clause' to vacate." ECF No. 1. The court has construed Petitioner's filing as a petition brought pursuant to 28 U.S.C. § 2241.
Petitioner pleaded guilty in the Southern District of Florida to Count Three of a superseding information that charged him with possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Petitioner also pleaded guilty to Count Four of the superseding information, which charged Petitioner with possession of a controlled substance, heroin, with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). ECF No. 31-2, 1. Petitioner was deemed to be subject to the Armed Career Criminal Act (ACCA) and a career offender under the United States Sentencing Guidelines based on prior convictions for aggravated assault with a deadly weapon, aggravated battery with a deadly weapon, sale of cocaine, and domestic battery by strangulation. On June 1, 2017, Petitioner was sentenced to a term of imprisonment of 180 months, consisting of 180 months as to Count Three and 151 months as to Court Four, to run concurrently.
On appeal, Petitioner contended that his prior convictions for aggravated assault, aggravated battery, and domestic battery by strangulation did not qualify as predicate offenses under the ACCA. The Court of Appeals for the Eleventh Circuit disagreed, noting that binding precedent established that each violation qualified as a predicate offense under the ACCA. Accordingly, Petitioner's sentence was affirmed. United States v. Butler, 714 F. App'x 980 (11th Cir. 2018).
On September 7, 2018, Petitioner filed a motion pursuant to 28 U.S.C. § 2255. Petitioner first argued that the indictment was duplicitous because it charged separate offenses for each of the different drugs found at the time of his arrest. Petitioner further argued that counsel was ineffective for failing to move to dismiss the indictment, for advising Petitioner to plead guilty to a superseding information, and for advising Petitioner to waive his right to be tried by indictment. Petitioner also argued that the court lacked subject matter, legislative, and territorial jurisdiction over the crimes listed in the indictment because he did not commit a crime against the United States and the federal government had not acquired jurisdiction over the locations where the crimes were committed. Finally, Petitioner asserted that he no longer should be classified as a career offender because his prior convictions no longer qualified as violent felonies under Sessions v. Dimaya, 138 S. Ct. 1204 (2018) ().
The § 2255 motion was referred to a United States Magistrate Judge for the Southern District of Florida. On October 30, 2018, the Magistrate Judge issued a Report of Magistrate Judge. The Magistrate Judge determined that the charging of a separate offense for each of the drugs was proper. ECF No. 31-8, 8 (citing cases). The Magistrate Judge found that Petitioner's ineffective assistance of counsel claims were grounded on Petitioner's argument that the indictment was defective. The Magistrate Judge, having found that the indictment was not defective, determined that counsel was not ineffective for failing to pursue meritless arguments. Id. at 10-11. The Magistrate Judge rejectedas patently frivolous Petitioner's claim that the court lacked subject matter, legislative, and territorial jurisdiction over the crimes listed in the indictment. Id. at 11-13. Finally, the Magistrate Judge determined that Dimaya was inapplicable and Petitioner's claim arose under Johnson v. United States, 576 U.S. 591 (2015)( that the residual clause of the ACCA was unconstitutionally vague). The Magistrate Judge observed that Petitioner had raised this issue on direct appeal, and that the Eleventh Circuit had found each predicate offense to be categorically qualified as a violent offense. For all these reasons, the Magistrate Judge recommended Petitioner's § 2255 motion be summarily dismissed and that no certificate of appealability issue. ECF No. 31-8, 15. A United States District Judge for the Southern District of Florida adopted the Report of Magistrate Judge by order dated November 16, 2018. ECF No. 31-9.
Petitioner filed a second § 2255 motion in the Southern District of Florida. The second § 2255 motion was dismissed because Petitioner failed to obtain authorization from the Eleventh Circuit to file a successive § 2255 motion as required by 28 U.S.C. § 2255(h). See ECF No. 31-10, 31-11.
In the within § 2241 petition, Petitioner argues that his conviction for possession of a firearm by a convicted felon is invalid pursuant to Rehaif v. United States, 139 S. Ct. 2191 (2019). In Rehaif, the Supreme Court held that the government, when prosecuting an offense under §§ 922(g) and 924(a)(2), must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm. Petitioner asserts that, if not for the defects within the indictment - that is, that he was not charged with knowing he was barred from possessing a firearm - he would not have pleaded guilty. Petitioner argues that he, like "any reasonable person . . .[who was ] facing a possible life sentence with the plea (thus holdingno true benefit to take a plea and give up many rights) would have taken his chance at trial where he too faced life, but would have held onto many other rights post-trial that surely would have helped." ECF No.1, 4.
Petitioner acknowledges that he is barred from pursuing a second or successive § 2255 motion. Petitioner contends, however, that the court can exercise jurisdiction over his § 2241 petition pursuant to the savings clause of § 2255(e), which provides:
(e) 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.
To obtain the benefit of the savings clause, a petitioner must show:
(1) at the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law.
In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000).
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred to United States Magistrate Judge Thomas E. Rogers for pretrial handling. Respondent United States of America filed a motion to dismiss or for summary judgment on July 1, 2020, in which it asserted Petitioner meets the savings clause requirements of § 2255(e), but was not prejudiced by the omission of the knowledge-of-status element. By order issued July 2, 2020, in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Petitioner was advised of the summary judgment procedures and the possible consequences if he failed to respond adequately. Petitioner filed aresponse in opposition to Respondent's motion on July 15, 2020, to which Respondent filed a reply on July 20, 2020. Petitioner filed a sur-reply on August 3, 2020.
The Magistrate Judge issued a Report and Recommendation on August 18, 2020. The Magistrate Judge agreed with Respondent that Petitioner met the first and third prongs of In re Jones. However, the Magistrate Judge determined that Petitioner failed to satisfy the second prong, which requires a finding that Rehaif rendered Petitioner's conduct not criminal. ECF No. 41, 8 (citing cases). According to the Magistrate Judge, the offense of possession of a firearm and ammunition by a felon remains illegal; Rehaif only clarified what the government needed to prove to secure a conviction under 18 U.S.C. § 922(g). The Magistrate Judge also distinguished Rehaif on the ground that Rehaif had been found guilty after a jury trial. The Magistrate Judge noted that Petitioner pleaded guilty to the § 922(g) charge and admitted in his plea agreement and the plea colloquy that the United States would have been able to prove the facts of the offense beyond a reasonable doubt. Accordingly, the Magistrate Judge recommended that the § 2241 petition be dismissed without prejudice for lack of jurisdiction.
The Magistrate Judge further recommended dismissing the case on the merits should the court find jurisdiction exists. The Magistrate Judge cited to United States v. Reed, 941 F.3d 108 (11th Cir. 2019),1 in which the Eleventh Circuit held that the omission of the knowledge-of-status element from an indictment charging a violation of § 922(g) did not amount to an error that affected the defendant's substantial rights or the fairness, integrity, or public reputation of the defendant'strial. The Magistrate Judge determined that Petitioner cannot show that at the time he possessed the firearm he was unaware that he had been convicted of a crime punishable by imprisonment exceeding one year. Thus, according to the Magistrate Judge, Petitioner could not...
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