Tillman v. Rickard, Case No. 1:18-cv-o1244

• Decision Date: 02 March 2020
• Docket Number: Case No. 1:18-cv-o1244
• Court: U.S. District Court — Southern District of West Virginia
• Parties: BENJAMIN TILLMAN, Petitioner, v. BARBARA RICKARD, Warden, Respondent.

BENJAMIN TILLMAN, Petitioner, v. BARBARA RICKARD, Warden, Respondent.

Case No. 1:18-cv-o1244

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BLUEFIELD DIVISION

March 2, 2020

PROPOSED FINDINGS AND RECOMMENDATION

This matter is assigned to the Honorable David A. Faber, Senior United States District Judge, and it is referred to the undersigned United States Magistrate Judge for initial review and submission of proposed findings and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Pending before the court is Petitioner's Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 (ECF No. 2) and his Motion for Summary Judgment (ECF No. 23), as well as Respondent's Motion to Dismiss, or in the alternative, Motion to Transfer (ECF No. 19), filed in conjunction with her Response to the section 2241 petition.

RELEVANT PROCEDURAL HISTORY

A. Petitioner's criminal proceedings

Petitioner is incarcerated at the Federal Correctional Institution, McDowell, in Welch, West Virginia, serving a 480-month term of imprisonment imposed by the United States District Court for the Northern District of Florida, following his conviction by a jury, on February 4, 1997, on one count of conspiracy to possess with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 846, 841(a), and 841(b)(1)(A)(iii), as pled in Count One of the indictment. (See United States v. Tillman, No. 3:96-cr-00058, ECF No. 63; see also ECF No. 2, App'x B herein). Petitioner's statutory sentencing range of 10 years to life in prison was increased to 20 years to life based upon the government's filing of an information under 21 U.S.C. § 851 (ECF No. 2, Appx. S) setting forth that the petitioner was convicted in 1993 in the Circuit Court of Escambia County, Florida, of possession of cocaine, a third degree felony under Fla. Stat. § 893.13(1)(f), which carried a penalty of a term of imprisonment not exceeding five years. See Fla. Stat. §§ 893.13(1)(f) and 775.982(3)(d). On April 18, 1997, Petitioner was sentenced to 480 months (40 years) in prison, followed by a 10-year term of supervised release.¹

Petitioner unsuccessfully appealed his Judgment to the United States Court of Appeals for the Eleventh Circuit. United States v. Tillman, No. 97-2513, 138 F.3d 957 (11th Cir. Mar. 4, 1998). Thereafter, the Supreme Court denied him a writ of certiorari, and his Judgment became final on October 13, 1998. Tillman v. United States, 525 U.S. 699 (1998).

On July 19, 1999, Petitioner filed a motion for a new trial, which was denied on July 22, 1999. (Case No. 3:96-cr-00058, ECF Nos. 157, 158). On appeal, the Eleventh Circuit affirmed the denial of the motion for a new trial. United States v. Tillman, No. 99-12653, 260 F.3d 625 (11th Cir. May 23, 2001).

B. Petitioner's collateral review proceedings

Petitioner filed an initial Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 in his sentencing court on October 4, 1999. (Case No. 3:96-cr-00058,ECF No. 178). That motion was ultimately denied on January 2, 2001. (Id., ECF No. 232). Petitioner's motion under Rules 59(e) and 60(b) was subsequently denied on February 8, 2001. (Id., ECF Nos. 234, 239). He unsuccessfully appealed the denial of those motions to the Eleventh Circuit. (Id., ECF No. 271) (Order denying certificate of appealability and dismissing Appeal Nos. 01-01389-A and 01-11447-A (11th Cir. Sept. 18, 2001)).²

On January 22, 2002, Petitioner filed a second § 2255 motion, which was summarily dismissed as untimely on May 9, 2002. (Id., ECF Nos. 274, 282, 283). His appeal of the dismissal of that motion (No. 02-13019-D) was unsuccessful. (Id., ECF Nos. 284, 301). By his own admission, and as further set forth in greater detail in Respondent's Response, Petitioner has since filed numerous additional post-conviction motions seeking to be resentenced, motions seeking authorization from the Eleventh Circuit to file a second or successive motion under § 2255, and motions under 18 U.S.C. § 3582 seeking a reduction of his sentence, all of which have been denied. (ECF No. 19 at 4-8).³ These motions will be addressed as necessary infra.

C. The instant section 2241 petition

On August 22, 2018, Petitioner filed the instant § 2241 petition in this court, asserting the following grounds for relief:

1. This Honorable Court can apply its savings clause test set forth in In re Jones, 226 F.3d 328 (4th Cir. 2000) to Petitioner's claim (under his conviction context) that the Supreme Court's holding in McFadden v. U.S., 135 S. Ct. 2298 [] (2015) establishes that the government did not sustain its burden of proof that Petitioner knew that the alleged substance implicated in his case was a controlled substance analogue.

2. This Honorable Court can in the alternative apply its savings clause test set forth in U.S. v. Gerald Adrian Wheeler, [886 F.3d 415 (4th Cir. 2018)] to Petitioner's McFadden claim (in a sentencing context) where preserved and unique circumstances in the case extends to the "identity of the drug" where the amended version of the crack/powder disparity in light of Supreme Court precedent and the rule of lenity subjecting petitioner to a lower term of imprisonment.

3. This Honorable Court should further apply its [Wheeler test] to Petitioner's previous preserved and unique circumstances (impacted) by United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) sought to the Eleventh Circuit Court of Appeals for adoption, where Petitioner's 21 U.S.C. § 851 enhancement erroneously increases his mandatory minimum that's supported by an "oral stipulation" made by the AUSA Edwin F. Knight to revisit petitioner's sentence on future review "if grounds existed."

4. This Honorable Court should further apply its [Wheeler test] to Petitioner's previous preserved and unique circumstances (impacted) by the Supreme Court's holding in Lopez v. Gonzales, (2006) and Moncrieiffe v. Holder, (2013) applied to Petitioner's erroneous 21 U.S.C. § 851 enhancement that increases his mandatory minimum that's supported by an "oral stipulation" made by the AUSA Edwin F. Knight to revisit Petitioner's sentence on future review "if grounds existed."⁴

5. This Honorable Court should further apply its [Wheeler test] to Petitioner's previous preserved and unique circumstances (impacted) by the Eleventh Circuit Court of Appeals' holding in U.S. v. Clarke, 822 F.3d 1213 (11th Cir. 2016) in these proceedings that can further create a decrease in Petitioner's erroneous 21 U.S.C. § 851 enhancement reflecting his mandatory minimum.

6. This Honorable Court can further apply its [Wheeler test] to Petitioner's U.S. v. Luis Ocampo-Estrada, 868 F.3d 1101 (9th Cir. 2017) and Gordon v. U.S.A.G., 861 F.3d 1314 (11th Cir. 2017) claims supported by compelling and unique circumstances that further invalidate Petitioner's prior offense enhancement under 21 U.S.C. § 851 for a Fla. State offense pursuant to § 893.13(1)(f) used to further increase Petitioner's mandatory minimum.

(ECF No. 1 at 6-8). Petitioner seeks a new trial, or to be re-sentenced without his section 851 enhancement, or to be re-sentenced to time served. (Id. at 8).

On April 15, 2019, Respondent filed a Response to Order to Show Cause, Motion to Dismiss, or in the alternative, Motion to Transfer (ECF No. 19), asserting that Petitioner's § 2241 petition should be dismissed for lack of jurisdiction because it does not meet the requirements of the "savings clause" contained in 28 U.S.C. § 2255(e) for review in this court under § 2241. The Response further asserts that this matter is not appropriate for transfer to Petitioner's sentencing court because he unsuccessfully filed a prior § 2255 motion and has not been authorized by the United States Court of Appeals for the Eleventh Circuit to file another second or successive motion under § 2255.⁵

On May 5, 2019, Petitioner filed a Reply brief. (ECF No. 22). Then, on May 13, 2019, Petitioner filed the instant Motion for Summary Judgment (ECF No. 23). Both documents assert that Respondent did not sufficiently address each of the prongs of the Jones and Wheeler tests for application of the savings clause to his claims and that he is entitled to judgment as a matter of law on each claim. This matter is ripe for adjudication.

STANDARDS OF REVIEW

Petitioner's claims clearly challenge the validity of his conviction and sentence, and not the manner in which his sentence is being executed. Motions under 28 U.S.C. § 2255 are the primary remedy for testing the validity of federal judgments and must be filed in the court of conviction, which, in this case, is the United States District Court for the Northern District of Florida. Normally, a § 2255 motion filed in a court other than thesentencing court should be transferred to the sentencing court. However, as noted in the procedural history, Petitioner was previously denied § 2255 relief in that court.

28 U.S.C. § 2241 is generally used to address matters concerning the execution of a federal sentence, and is not an additional, alternative, or supplemental remedy to that provided in § 2255, unless the petitioner can show that the remedy under § 2255 is inadequate or ineffective to test the legality of his detention. In re Jones, 226 F.3d 328, 333 (4th Cir. 2000) ("[W]hen § 2255 proves 'inadequate or ineffective to test the legality of . . . detention,' a federal prisoner may seek a writ of habeas corpus pursuant to § 2241."). In re Jones relies upon the statutory language presently found in 28 U.S.C. § 2255(e), which states:

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.

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