Mingo v. Barnes

Decision Date12 July 2021
Docket Number9:20-cv-02308-TMC-MHC
PartiesKemuel Cornelius Mingo, Petitioner, v. Nanette Barnes, Warden of FCI Bennettsville, Respondent.
CourtU.S. District Court — District of South Carolina


Molly H. Cherry, United States Magistrate Judge.

Petitioner Kemuel Cornelius Mingo (Petitioner), a federal inmate currently incarcerated at the Federal Correctional Institution (“FCI”) Bennettsville, petitions the Court for a writ of habeas corpus under 28 U.S.C. § 2241 (“the Petition”). Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(1)(c) (D.S.C.) the Petition was assigned to the undersigned for a Report and Recommendation. Respondent filed a Motion for Summary Judgment, ECF No. 11, and Petitioner filed a Response in Opposition, ECF No. 22. For the reasons that follow, the Court concludes that it lacks subject matter jurisdiction to entertain the petition and the matter should be dismissed.

A. Petitioner's conviction and sentence

In 2003, a grand jury in the Western District of North Carolina indicted Petitioner, charging him with possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) (Count One); possession with intent to distribute a mixture and substance containing cocaine base in violation of 21 U.S.C. § 841 (Count Two); and using and carrying a firearm during and in relation to a drugtrafficking offense in violation of 18 U.S.C. § 924(c)(1) (Count Three). See United States v. Mingo, 237 Fed.Appx. 860, 861-62 (4th Cir. 2007) (detailing the underlying offenses). Petitioner proceeded to trial in November 2003. Of particular importance, the evidence at trial included Petitioner's stipulation that he is a convicted felon. See Id. at 862 (“As a part of its instructions [to the jury] on Count One (felon-in-possession), the court explained that the parties had stipulated that Mingo is a convicted felon.”); see also United States v. Mingo, No. 3:03-cr-00014-KDB-DSC-1 (W.D. N.C. terminated July 25, 2005), ECF No. 34 (stipulation that “Mingo is a convicted felon”).[1] The jury convicted Petitioner of all counts. Mingo, 237 Fed.Appx. at 862; Mingo, No. 3:03-cr-00014-KDB-DSC-1, ECF No. 39.

The District Court in the Western District of North Carolina sentenced Petitioner to 120 months of imprisonment on Count One and 262 months of imprisonment on Count Two, to be served concurrently, and to a 60-month consecutive sentence on Count Three. See Mingo v. United States, No. 3:03CR14, 2009 WL 426558, at *1 (W.D. N.C. Feb. 20, 2009). Petitioner appealed, challenging his § 924(c) conviction by arguing that the trial court erred by not limiting its instruction on constructive possession to Count One, by constructively amending the Indictment as to Count Three, and by failing to offer alternative verdict forms as to Count Three. Mingo, 237 Fed.Appx. at 862-63. The Fourth Circuit affirmed. Id. at 868.

B. Petitioner's relevant prior post-conviction motions

In 2009, Petitioner filed his first motion to vacate under 28 U.S.C. § 2255. The District Court for the Western District of North Carolina denied relief. See Mingo, 2009 WL 426558, at *5. The Fourth Circuit denied a certificate of appealability and dismissed the appeal. United States v. Mingo, 332 Fed.Appx. 874 (4th Cir. 2009). In 2012, Petitioner filed a second § 2255 motion to vacate, which the same District Court ultimately denied as successive. Mingo v. United States, No. 3:03-CR-14-RLV-CH-1, 2013 WL 2370721, at *3-4 (W.D. N.C. May 30, 2013)[2] The Fourth Circuit ultimately denied a certificate of appealability and dismissed the appeal as to Petitioner's request for relief under § 2255 and affirmed the remainder of the District Court's judgment. United States v. Mingo, 708 Fed.Appx. 140, 141 (4th Cir. 2018). In 2016, Petitioner filed a motion for authorization to file a successive § 2255 motion, and the Fourth Circuit denied the motion. In re Mingo, No. 16-9190 (4th Cir. June 20, 2016).

Petitioner has also filed two other petitions pursuant to 28 U.S.C. § 2241, both of which were dismissed. See Mingo v. Bragg, No. 9:18-cv-1333-TMC (D.S.C. December 26, 2018); Mingo v. Bragg, No. CV 9:20-0010-JD-MHC, 2021 WL 327377 (D.S.C. Feb. 1, 2021).

C. Petitioner's current § 2241 petition

Petitioner filed the present § 2241 habeas petition in June 2020. ECF No. 1. He contends that his Count One felon-in-possession conviction under § 922(g)(1) should be vacated in light of Rehaif v. United States, 139 S.Ct. 2191 (2019) because the indictment and the jury instructions were defective. ECF No. 1-1 at 1-2. He further maintains that his Count Two § 841 drug offense and Count Three § 924(c) offense should be vacated because he would have faced only state charges had he not been charged under § 922(g)(1) as a felon-in-possession. ECF No. 1-1 at 1-2.


Under established local procedure in this judicial district, a careful review has been made of this Petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, [3] the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and other habeas corpus statutes. Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.

Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.' Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.


Petitioner contends in this § 2241 petition that the indictment failed to describe an essential element of the offense under 18 U.S.C. § 922(g)(1), in violation of his due process rights as outlined in Rehaif v. United States, 139 S.Ct. 2191 (2019). As a result, he contends the grand jury failed to charge him with a crime, and he further maintains that he was not apprised of essential elements of the offense. See ECF No. 1-1 at 6, 8-9. For the reasons that follow, the Court finds it lacks jurisdiction over the § 2241 Petition.

A. The savings clause exception in 28 U.S.C. § 2255

Congress requires every federal prisoner who collaterally attacks his conviction to employ the motion mechanism provided in 28 U.S.C. § 2255. However, there is one exception-if § 2255 appears “inadequate or ineffective, ” then § 2255(e) provides that a federal prisoner may apply for a writ of habeas corpus under § 2241. Farkas v. Butner, 972 F.3d 548, 550 (4th Cir. 2020). This mechanism has been referred to as the “savings clause” exception. Id.

To trigger the “savings clause” of § 2255(e) and proceed under § 2241, a petitioner must meet the savings clause test as contemplated in In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000) (challenges to convictions) or United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018) (challenges to sentences). Significantly, the savings clause is a “jurisdictional provision.” Wheeler, 886 F.3d at 423. Thus, if a petitioner cannot meet one of the Jones or Wheeler requirements, then the § 2241 petition “must be dismissed for lack of jurisdiction.”[4] Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010).

To demonstrate that a § 2255 motion is inadequate or ineffective to test the legality of a conviction, a petitioner must show that:

(1) at the time of the 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

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