Walker v. Rivera

• Decision Date: 26 September 2011
• Docket Number: C/A No. 3:10–2464–RMG.
• Citation: 820 F.Supp.2d 709
• Court: U.S. District Court — District of South Carolina
• Parties: Charles W. WALKER, Sr., Petitioner, v. Mildred RIVERA, Warden FCI Estill, Respondent.

820 F.Supp.2d 709

Charles W. WALKER, Sr., Petitioner,

v.Mildred RIVERA, Warden FCI Estill, Respondent.

C/A No. 3:10–2464–RMG.

United States District Court, D. South Carolina.

Sept. 26, 2011.

Amy Adelson, Nathan Z. Dershowitz, Dershowitz Elger and Adelson, New York, NY, Richard F. Mehrhof, Jr., Allgood Childs Mehrhof and Millians, Augusta, GA, for Petitioner.

Robert F. Daley, Jr., US Attorneys Office, Columbia, SC, for Respondent.

ORDER

RICHARD MARK GERGEL, District Judge.

Petitioner brought this action pursuant to 28 U.S.C. § 2241. This case was automatically referred to the United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b) and the Local Rules. The Magistrate Judge recommended that the petition be dismissed and the Respondent's motion to dismiss be granted. (Dkt. No. 21). The Petitioner has objected (Dkt. No. 24) and Respondent has filed a reply (Dkt. No. 25).

The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and responsibility for making a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270–71, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). This Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made, and this Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). This Court may also “receive further evidence or recommit the matter to the magistrate with instructions.” Id. After conducting a de novo review and considering the record of this matter, the applicable law, the Report and Recommendation of the Magistrate Judge, Petitioner's objections, and Respondent's reply, the petition for a writ of habeas corpus is denied for the reasons set forth below.

Background

This petition arises out of the conviction of Petitioner on June 3, 2005 following an eight day trial. Petitioner formerly served as a Georgia state senator and was majority leader of the Georgia State Senate. The criminal prosecution leading to his convictions arose out of Petitioner's activities as a businessman, public official and chairman of a board operating a charity. Petitioner was convicted on the following counts:

1. One count of conspiracy, in violation of 18 U.S.C. § 371, and 39 counts of mail fraud, in violation of 18 U.S.C. § 1341, in regard to the operation of a weekly newspaper, the Augusta Focus (“Augusta Focus Counts”);

2. One count of conspiracy, in violation of 18 U.S.C. § 371, 46 counts of mail fraud, in violation of 18 U.S.C. § 1341, and four counts of aiding and assisting the preparation of false charitable tax returns, in violation of 26 U.S.C. § 7206(2), in regard to the operation of a charitable entity, C.S.R.A. Classic, Inc. (“Classic Counts”);

3. Eight counts of mail fraud, in violation of 18 U.S.C. § 1341, and “honest services” fraud, in violation of 18 U.S.C. § 1346, regarding dealings with Grady Hospital (“Grady Counts”);

4. 20 counts of mail fraud, in violation of 18 U.S.C. § 1341, and “honest services” fraud, in violation of 18 U.S.C. § 1346, in regard to dealings with the Medical College of Georgia (“Medical College of Georgia Counts”); and

5. Eight counts of mail fraud, in violation of 18 U.S.C. § 1341, and “honest services” fraud, in violation of 18 U.S.C. § 1346, in regard to Petitioner's political campaign account (“Campaign Account Counts”).

The Eleventh Circuit affirmed the convictions on direct appeal on July 6, 2007. U.S. v. Walker, 490 F.3d 1282 (11th Cir.2007). Petitioner thereafter filed a 28 U.S.C. § 2255 motion pro se. He subsequently obtained counsel and filed an amended motion to Vacate, Set Aside or Correct Sentence, which was denied on January 7, 2010, 2010 WL 55472. The District Court denied the petition. Petitioner appealed the denial of this petition to the Eleventh Circuit. On August 23, 2011, 438 Fed.Appx. 855 (11th Cir.2011), the Eleventh Circuit granted a certificate of appealability, vacated the District Court's denial of the § 2255 petition and remanded the case to the District Court to address the issue of alleged ineffective assistance of counsel arising from Petitioner's attorney failing to argue on appeal that Petitioner's sentence was substantively unreasonable. Walker v. United States, 438 Fed.Appx. 855 (11th Cir.2011).

After the U.S. Supreme Court decided Skilling v. United States, –––U.S. ––––, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010), narrowing the circumstances under which a defendant could be convicted of “honest services” mail fraud under 18 U.S.C. § 1346, Petitioner sought leave from the Eleventh Circuit to file a second and successive motion under 28 U.S.C. § 2255 in the Southern District of Georgia to challenge the constitutionality of his conviction. On September 3, 2010, the Eleventh Circuit denied his motion pursuant to 28 U.S.C. § 2255(h). (Dkt. No. 1–2).

Petitioner, who is presently incarcerated at the federal prison in Estill, South Carolina, thereafter filed a petition for a writ of habeas corpus with this Court pursuant to 28 U.S.C. § 2241. Where 28 U.S.C. § 2255 is determined to be inadequate or ineffective, a petitioner for habeas relief may bring an action under § 2241 in limited circumstances. See, In Re Jones, 226 F.3d 328, 333 (4th Cir.2000). The Government concedes “that the Skilling claim ... is of the type that might proceed under § 2241 in the proper case.” (Dkt. No. 13–1 at 5). Thus, while asserting that Petitioner is not entitled to relief under § 2241, the Government recognizes the right of Petitioner to assert his claims under § 2241 regarding the impact of Skilling on his 2005 criminal convictions.

Standards for Review Under § 2241

A petitioner seeking relief under § 2241 who failed to raise the issue on direct appeal faces certain barriers to relief for what the courts have described as “procedural default.” Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). This procedural default can be excused under two, very limited circumstances. First, the petitioner can show “cause” for failing to raise the issue on direct appeal and “actual prejudice.” Bousley v. United States, 523 U.S. at 622, 118 S.Ct. 1604. The case law has been very demanding on establishing “cause” for procedural default, rejecting “novelty” and “futility” arguments where other defendants have timely raised the same issue at trial and/or on direct appeal. Bousley v. United States, 523 U.S. at 622, 118 S.Ct. 1604; United States v. Sanders, 247 F.3d 139, 144–46 (4th Cir.2001); United States v. Harris, 183 F.3d 313 (4th Cir.1999). The case law has been similarly demanding regarding the showing of “actual prejudice”, requiring more than “a possibility of prejudice, but ... actual and substantive disadvantage, infecting [the] entire trial with error of constitutional dimensions.” Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Second, the petitioner, even in the face of an unexcused procedural default, may still obtain relief under § 2241 where he can establish “actual innocence”, which means “factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S at 623–24, 118 S.Ct. 1604.

Petitioner asserts that he is entitled to relief under either theory of Bousley, contending that he can establish both “cause” and “actual prejudice” as well as “actual innocence.” (Dkt. No. 24 at 9–11). Petitioner argues that “cause” exists because Skilling represented a “clear break with the past” and it would have been futile to have asserted an “honest services” challenge at trial or on direct appeal. ( Id. at 10, citing Stayton v. United States, 766 F.Supp.2d 1260 (M.D.Ala.2011)). Petitioner's argument is contrary to controlling United States Supreme Court case law rejecting a “cause” finding on the basis of “futility”, Bousley v. United States, 523 U.S. at 623, 118 S.Ct. 1604, and the greater weight of post- Skilling case law has followed the Bousley holding. See, Ryan v. United States, 645 F.3d 913, 916–17 (7th Cir.2011); United States v. Lynch, 807 F.Supp.2d 224, 229–30, 2011 WL 3862842, at *3 (E.D.Pa.2011); United States v. Jennings, 2011 WL 3609298, at *2–3 (D.Minn.2011); United States v. Scruggs, 2011 WL 1832769, at *3 (N.D.Miss.2011).

Petitioner further argues that the District Court's rejection of his ineffective assistance of counsel claim in the § 2255 petition relating to his attorney's failure to challenge the “honest services” counts places him in a “Catch 22” situation should this Court find a procedural default on the Skilling claim. (Dkt. No. 24 at 10–11). Courts have recognized that a failure of defense counsel to assert an available but not previously established constitutional claim may be the basis of a procedural default but that same omission may not be recognized as constitutionally deficient ineffective assistance of counsel. Engle v. Isaac, 456 U.S. 107, 131–34, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Pelmer v. White, 877 F.2d 1518, 1523 (11th Cir.1989).¹

The Court finds that Petitioner cannot establish the presence of “cause” for his procedural default. Other defendants in honest services actions asserted and preserved the constitutional challenge to 18 U.S.C. § 1346 despite the fact that existing case law was decidedly against their position. See, Skilling v. United States, ––– U.S. ––––, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010); Weyhrauch v. United States, ––– U.S. ––––, 130 S.Ct. 2971, 177 L.Ed.2d 705 (2010); Ryan v. United States, 645 F.3d 913, 916–17 (7th Cir.2011). Petitioner is not, however, without recourse because he still has an avenue of relief under § 2241 should he be able to establish “actual innocence.” ²

Skilling and its Impact on Convictions

The United States Supreme Court in Skilling v. United States addressed the validity of a conviction for “honest services” mail fraud...