Marlowe v. Warden, FCI Hazelton

• Decision Date: 27 July 2021
• Docket Number: No. 20-6719,20-6719
• Citation: 6 F.4th 562
• Parties: Patrick MARLOWE, Petitioner - Appellant, v. WARDEN, FCI HAZELTON, Respondent - Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

6 F.4th 562

Patrick MARLOWE, Petitioner - Appellant,

v.WARDEN, FCI HAZELTON, Respondent - Appellee.

No. 20-6719

United States Court of Appeals, Fourth Circuit.

Argued: March 10, 2021

Decided: July 27, 2021

ARGUED: Jeremy Brian Gordon, JEREMY GORDON, PLLC, Mansfield, Texas, for Appellant. Jason Lee, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: William J. Powell, United States Attorney, Martinsburg, West Virginia, Tara N. Tighe, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.

Before NIEMEYER, MOTZ, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Rushing wrote the opinion, in which Judge Niemeyer and Judge Motz joined.

RUSHING, Circuit Judge:

Patrick Marlowe appeals the district court's dismissal of his 28 U.S.C. § 2241 habeas petition. Section 2241 is not available to Marlowe, a federal prisoner, unless a 28 U.S.C. § 2255 motion would be "inadequate or ineffective" to test the legality of his detention. 28 U.S.C. § 2255(e). Relevant here, under this Court's precedent a Section 2255 motion can prove inadequate or ineffective only if, when Marlowe was convicted, the settled law of the Supreme Court or the circuit in which he was convicted established the legality of his conviction. Our cases and an examination of the habeas remedy demonstrate that, to satisfy this requirement, a prisoner must show that binding precedent previously foreclosed the argument he later presses to collaterally attack his conviction. Because Marlowe cannot so demonstrate, the district court lacked jurisdiction to entertain his petition.

I.

A.

Marlowe supervised corrections officers working the second shift at the county jail in Wilson County, Tennessee. United States v. Conatser , 514 F.3d 508, 514 (6th Cir. 2008). Marlowe, in his own words, ran "a different kind of shift." Id. (internal quotation marks omitted). He and his officers "would strike and kick inmates who were loud, obnoxious, or uncooperative and would conceal their unjustified use of force through the denial of medical care and the falsification of incident reports." Id.

This appeal concerns Marlowe's complicity in the death of detainee Walter Kuntz. We briefly summarize the relevant facts as recounted by the Sixth Circuit when it affirmed Marlowe's resulting prison sentence. Id. at 516–518.

On January 13, 2003, authorities booked Kuntz into Marlowe's jail after he left the scene of a minor automobile accident. His blood alcohol level registered approximately .26. Kuntz soon began causing a ruckus in his cell. When Kuntz ignored commands to stop, Marlowe "punched Kuntz in the left side of his head, threw him toward the wall, and kicked, punched, and kneed Kuntz in the rib area." Id. at 516. Kuntz calmed down briefly before again banging on his cell door. Marlowe reentered Kuntz's cell and "struck Kuntz in the left temple area, knocking him down, and then punched and kicked Kuntz some more." Id. Another officer sprayed Kuntz with a chemical agent as the officers left the cell.

Kuntz was quiet for a time before again yelling and kicking the cell door. Marlowe instructed one of his subordinates to "take care of the situation." Id. (internal quotation marks omitted). The subordinate returned to Kuntz's cell with other officers. As Kuntz backed away, an officer "pushed him onto the bench next to the wall," with the right side of Kuntz's head facing the officer and the left side four or five inches from the wall. Id. The officer delivered "three or four ‘full power’ punches to the right side of Kuntz's head. Each time, the left side of Kuntz's head bounced off the wall and made a ‘cracking sound.’ The officers left Kuntz holding his head and moaning. [The officer] told Marlowe he had ‘taken care of it.’ " Id. at 516–517.

Over the following hours, the officers observed Kuntz lying unconscious in his own vomit and learned that he had undergone brain surgery

a year or two earlier. Though Kuntz was unresponsive, Marlowe did not request medical attention. Instead, Marlowe and a subordinate "tried to rouse him by shaking him, patting him, and pouring a bucket of ice water over him." Id. at 517. Kuntz did not respond. The officers used ammonia smelling salts to no avail, noticing instead "that Kuntz would stop breathing until the salts were taken away." Id. Yet medical care went unsolicited. Another check on Kuntz found him lying down with his eyes open and unresponsive "to being shaken or having a light shone in his eyes." Id. A subordinate alerted Marlowe; he took no action.

Approximately six hours after Kuntz's last beating, the officers called an ambulance. The responding EMTs determined that Kuntz "was a level three on the level of consciousness scale—the same level as a deceased person." Id. The EMTs believed they were responding to a case of possible alcohol poisoning

, and no one disabused them of that notion. Rather than being airlifted to a trauma center for a possible head injury, Kuntz went to a local medical center. Only following a brain scan was Kuntz flown to a trauma center. His condition was beyond repair:

A neurosurgeon evaluated Kuntz, who was on a ventilator and had no brain stem reflexes. The doctor concluded that Kuntz had a very large subdural hematoma

that had caused irreversible brain damage. He added that Kuntz's low body temperature had exacerbated his condition because it interfered with normal clotting. Kuntz died when he was removed from the ventilator two days later.

Several doctors testified at trial that Kuntz's head injuries were consistent with blunt force trauma, and that such injuries are generally treatable if medical attention is sought in the first hours after a brain injury. It was also explained that within an hour of injury a person with a subdural hematoma would start to experience a progression of symptoms such as dizziness, headache, nausea, vomiting, sleepiness, lethargy, and eventually unresponsiveness.

Id. at 517–518 (footnote omitted).

B.

A federal grand jury indicted Marlowe and other officers for depriving detainees and prisoners of their rights secured by the Constitution or laws of the United States in violation of 18 U.S.C. § 242 and conspiring to do so in violation of 18 U.S.C. § 241. Counts Two and Three charged Marlowe in Kuntz's death. Count Two encompassed the assault, while Count Three faulted Marlowe for depriving Kuntz of necessary medical care. Both arose under 18 U.S.C. § 242, which authorizes escalating penalties depending on the resulting harm: "if bodily injury results from the acts committed in violation of" the statute, the maximum sentence is 10 years’ imprisonment, but "if death results from the acts," the defendant may be sentenced to life imprisonment.¹ Counts Two and Three each alleged that Marlowe's actions resulted in both Kuntz's bodily injury and his death.

While some of his codefendants pleaded guilty (and testified against him), Marlowe opted for trial. At the close of evidence, the district court instructed the jury on the "death results" element in Counts Two and Three:

For Counts Two and Three, you also must decide whether the government has proved beyond a reasonable doubt that Walter Kuntz's death resulted from the conduct of Defendant Marlowe.

The government need only prove that bodily injury or death was a natural and foreseeable result of the defendant's conduct. The government does not need to prove that a defendant intended to cause bodily injury or death or that a defendant's acts were the direct, immediate or sole cause of bodily injury or death.

J.A. 46–47. The jury convicted Marlowe of seven of the eight counts charged. On Count Two, the jury found Marlowe guilty and that bodily injury—but not death—resulted from the assault on Kuntz. On Count Three, the jury found Marlowe guilty and that both bodily injury and death resulted from withholding medical care. The court sentenced Marlowe to life imprisonment on Count Three and concurrent sentences of 10 years on the other counts. Without challenging his convictions, Marlowe appealed only the life sentence, which the Sixth Circuit affirmed. Conatser , 514 F.3d at 528.

In 2009, Marlowe moved to vacate, set aside, or correct his conviction and sentence under 28 U.S.C. § 2255. He claimed that his trial counsel rendered constitutionally ineffective representation by failing to correctly calculate and advise him of his sentencing exposure and to recommend that he accept the Government's plea offer. The district court denied the motion and declined to issue a certificate of appealability, as did the Sixth Circuit.

C.

In July 2017, Marlowe filed the 28 U.S.C. § 2241 habeas petition underlying this appeal.² In support, Marlowe invokes the Supreme Court's 2014 decision in Burrage v. United States , 571 U.S. 204, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014). There, the Supreme Court interpreted a statute imposing a 20-year mandatory minimum sentence for drug offenses where "death or serious bodily injury results from the use of [the illegal] substance." 21 U.S.C. § 841(b)(1)(C) ; see also Burrage , 571 U.S. at 208–210, 134 S.Ct. 881. The Court held that the "death results" element requires a showing of but-for causation. Burrage , 571 U.S. at 218–219, 134 S.Ct. 881. The Court embraced the traditional understanding reflected in the Model Penal Code that "when a crime is defined in terms of conduct causing a particular result," it at a minimum requires that the conduct be "an antecedent but for which the result in question would not have occurred." Id. at 211, 134 S.Ct. 881 (quoting ALI, Model Penal Code § 2.03(1)(a) & Explanatory Note (1985)).

Marlowe contends that the jury instructions in his case ran afoul of Burrage because the jury was not asked to decide whether Kuntz would have lived but for Marlowe's conduct but rather was instructed that Marlowe's acts need not have been "the direct ... cause" of Kuntz's death. The Government moved to dismiss the petition for lack...