Rosado v. AW Wingfield
| Decision Date | 26 October 2021 |
| Docket Number | C/A 1:21-1969-JFA-SVH |
| Parties | Andre Rosado, #80495-038, Petitioner, v. AW Wingfield, Acting Warden, Respondent. |
| Court | U.S. District Court — District of South Carolina |
REPORT AND RECOMMENDATION
Andre Rosado (“Petitioner”), proceeding pro se and in forma pauperis, filed this action seeking habeas corpus relief pursuant to 28 U.S.C. § 2241. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's motion for summary judgment. [ECF No. 19]. Pursuant to Roseboro v Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [ECF No. 23]. Petitioner filed a response on October 14, 2021. [ECF No 29]. For the reasons that follow, the undersigned recommends the district judge dismiss the petition without prejudice for lack of jurisdiction and deny Respondent's motion for summary judgment as moot.
Petitioner is a federal inmate incarcerated at the Federal Correctional Institution (“FCI”) in Williamsburg, South Carolina. [ECF No. 1 at 1].
On February 23, 2005, Petitioner sold 29.4 grams of cocaine base to an undercover agent in Fitchburg, Massachusetts. [ECF No. 19-4 ¶¶ 12-14]. On March 31, 2005, a federal grand jury sitting in the District of Massachusetts returned an indictment charging Petitioner with distribution of cocaine base and aiding and abetting, and a warrant was issued for his arrest. United States v. Rosado, C/A No. 4:5-40011-FDS-1 (D. Mass. 2005), ECF Nos. 2, 6.[1]
On April 6, 2005, officers executing that warrant attempted to arrest Petitioner. [ECF No. 19-4 ¶¶ 15-18]. Petitioner failed to pull his car over, and, instead, sped away, leading police in pursuit. Id. ¶¶ 16-17. He ultimately crashed the car he was driving and exited the car holding a firearm. Id. ¶ 1718. Police instructed him to drop the gun. Id. ¶ 18. He complied, dropping the gun on the street, and fled on foot. Id. Police apprehended and arrested him near the crash site. Id. Police then seized the gun he dropped and conducted an inventory search of the crashed car. Id. ¶¶ 18-19. The inventory search revealed over 40 grams of cocaine base and a second loaded firearm in the car. Id. ¶¶ 19-20.
On April 11, 2005, the Government filed an information pursuant to 21 U.S.C. § 851, giving Petitioner notice of enhanced penalties due to a prior drug felony conviction, a 1996 Massachusetts state conviction for possession with intent to distribute cocaine. Rosado, ECF No. 10.[2] In November 2005, the grand jury returned a superseding indictment, with additional charges including the felon-in-possession count arising from the circumstances surrounding Petitioner's arrest. Rosado, ECF No. 30. In September 2006, the grand jury returned a second superseding indictment that charged Petitioner with distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(B)(iii), and 18 U.S.C. § 2 (Count 1); possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(B)(iii), and 18 U.S.C. § 2 (Count 2); possession of firearms in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c)(1) (Count 3); and being a felon in possession of firearms, in violation of 18 U.S.C. § 922(g)(1) (Count 4). Rosado, ECF No. 63. Counts Two, Three, and Four all related to the date of April 6, 2005. Id.
Petitioner proceeded to a jury trial on all counts. During trial, the parties entered into the following stipulation related to his felon status:
Stipulation No. 1, the parties in this case, that is the defendant, Andre Rosado, by Ed Hayden, his attorney, and the United States of America, by Leah B. Foley and Paul G. Casey, Assistant U.S. Attorneys hereby stipulate and agree as follows: That prior to April 6, 2005, Andre Rosado had been convicted in a court of a felony, that is, a crime punishable by prison term exceeding one year.
[ECF No. 19-3 at 49]. Following a four-day trial, the jury found Petitioner guilty on all four counts. Rosado, ECF No. 82.
Prior to sentencing, the United States Probation Office produced a Presentence Report (“PSR”). The PSR determined that Petitioner was responsible for 77.1 grams of crack cocaine, comprised of the 29.4 grams Petitioner sold to the undercover agent and the 47.7 grams recovered from Petitioner and his car upon his arrest. [ECF No. 19-4 ¶¶ 13-14, 20, 32]. The PSR also found Petitioner qualified as a career offender under U.S.S.G. § 4B1.1, with a total offense level of 37 and a criminal history category of VI, which resulted in a Guideline sentence of 360 months-to-life imprisonment on Counts One, Two, and Four, with 60 months consecutive on Count Three. Id. ¶¶ 41-45. Petitioner's total Guideline sentence range was therefore 420 months to life imprisonment. Id. ¶ 46.
At sentencing, on March 9, 2007, the Government argued to the court in support of the Guideline range, in part, as follows:
And I would also-just also like to point out that right before we were going to trial, the defendant had actually stated that he was going to require the Government to prove his prior convictions to the jury instead of stipulating to them, so that's even further proof that he actually knew the Government-which prior convictions the Government knew of, which included the drug offense, which is referenced in the 851 and the prior conspiracy to commit murder; and so, that was further evidence that he knew that we knew of these prior convictions and that we intended to move forward for enhanced sentencing based on that.
At sentencing, after observing that the Guideline's sentence “is the highest that I have ever seen as a judge, ” the district court questioned the “marginal value from a deterrent standpoint” of imposing a sentence as long as that suggested by the Guidelines. Id. at 20-21. The district court therefore varied downward, imposing a lesser, but still lengthy, sentence of 360 months, explaining that “given this record and these circumstances, ” “the protection of the public . . . is the highest priority.” Id. at 21-22.
Petitioner appealed to the United States Court of Appeals for the First Circuit, raising challenges to the sufficiency of the evidence as to the possession of cocaine base with intent to distribute and possession of firearms in furtherance of drug trafficking offense, disputing the district court's finding that the drug involved was crack cocaine rather than another form of cocaine base and arguing that the sentence was longer than necessary. United States v. Rosado, 273 Fed.Appx. 1 (1st Cir. 2008). The First Circuit affirmed the conviction and sentence. Id.
Petitioner continued to challenge his convictions and sentence in a number of motions pursuant to 28 U.S.C. § 2255 on a number of different grounds. See Rosado, ECF No. 101 (§ 2255 petition raising a variety of constitutional claims and alleging insufficiency of the evidence); Rosado, ECF No. 137 (§ 2255 petition based on Descamps v. United States, 133 S.Ct. 2276 (2013), and Alleyne v. United States, 133 S.Ct. 2151 (2013)); Rosado, ECF No. 170 (§ 2255 petition challenging his career offender status based on Johnson v. United States, 135 S.Ct. 2551 (2015)). All of Petitioner's § 2255 challenges were unsuccessful. See Rosado, ECF Nos. 125, 149, 157, 164, 182.
Petitioner filed the instant § 2241 habeas petition in July 2021. [ECF No. 1]. He contends that his felon-in-possession conviction should be vacated in light of Rehaif v. United States, 139 S.Ct. 2191 (2019), which held that, to prove an offense under 18 U.S.C. §§ 924(a)(2) and 922(g), the government must prove the defendant knew he possessed a firearm and knew he belonged to a category of persons barred from possessing a firearm at the time of possession.
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in its favor. Id. at 255. However, Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e).
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....
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