Gibson v. Warden

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT BLUEFIELD

SHAWN GIBSON,

Petitioner,

v. CIVIL ACTION NO. 1:18-00969

WARDEN, FCI MCDOWELL,

Respondent.

MEMORANDUM OPINION AND ORDER

By Standing Order, this action was referred to United

States Magistrate Judge Dwane L. Tinsley for submission of

findings and recommendation regarding disposition pursuant to 28

U.S.C. § 636(b)(1)(B). Magistrate Judge Tinsley submitted to

the court his Proposed Findings and Recommendation (“PF&R”) on

August 31, 2020, in which he recommended that the court deny

petitioner’s petition for writ of habeas corpus under 28 U.S.C.

§ 2241 and grant respondent’s motion to dismiss. (See ECF No.

12.)

In accordance with the provisions of 28 U.S.C. § 636(b),

petitioner was allotted fourteen days and three mailing days in

which to file any objections to the PF&R. The failure of any

party to file such objections within the time allowed

constitutes a waiver of such party’s right to a de novo review

by this court. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir.

1989).

Petitioner did not timely file objections. On September

21, 2020, however, petitioner, acting pro se, filed a motion

seeking additional time to file objections to the PF&R. (ECF

No. 13.) The envelope in which petitioner sent his motion was

postmarked September 16, 2020. In his motion for an extension,

petitioner stated that he was “pretty whiped [sic] out” from two

bouts of COVID-19. (Id.) He also stated that he had no paper

and that he had been having trouble obtaining a copy of a

toxicology report. (Id.)

On October 7, 2020, the court granted petitioner’s motion

for additional time to file objections and granted him until

November 6, 2020, to do so. Petitioner filed objections on

October 30, 2020.1

I. Factual Background

In the early 2000s, petitioner was a heroin dealer in

Vermont. (See ECF No. 2.) Even while enrolled in a drug

treatment program in Massachusetts in the spring and summer of

2001, he kept selling heroin. (See id.)

On the afternoon of July 31, 2001, after her father stopped

by petitioner’s parents’ residence looking for her, police found

22-year-old Jill McCarthy dead in petitioner’s bedroom. (See

1 Petitioner also filed objections on November 5, 2020, but this

set of objections appears to be a duplicate of his October 30

objections.

id.) The autopsy “concluded that she died of ‘acute drug:

morphine from heroin intoxication.’” (See id. (quoting autopsy

report).)

Petitioner subsequently pleaded guilty to knowingly and

intentionally distributing heroin to a minor2 (two counts) and

knowingly and intentionally distributing heroin (four counts).

In a July 28, 2003 addendum to the plea agreement, petitioner

agreed to plead guilty to distributing heroin that resulted in

Ms. McCarthy’s death, in violation of 21 U.S.C. § 841(b)(1)(C).

At petitioner’s sentencing, the court calculated an offense

level of 37 and a guideline range (under then-mandatory

guidelines) of 262 to 327 months. (Sentencing Hr’g Tr. 76:4-

77:25, ECF No. 68, Case No. 2:02-cr-00106 (D. Vt.).) The court

then sentenced petitioner to 300 months on counts 3, 6, and 8

(the charge under § 841(b)(1)(c) was count 8), and 240 months on

the other charges, to run concurrently, followed by six years of

supervised release. (Tr. 77:6-25).

In arguing that petitioner had accepted responsibility for

his crimes, his counsel stated, “He stood up to the plate and

admitted that the heroin that he had, he gave to his girlfriend

that night, indeed caused her death.” (Tr. 33:5-7.) After

describing it as “a real close case,” the court concluded “that

2 Ms. McCarthy was not a minor, so these two counts were not for

distribution to her.

there ha[d] been a showing that [petitioner had] clearly

demonstrated acceptance of responsibility.” (Tr. 56:15-22.)

At the sentencing hearing, petitioner admitted that he

“instructed [a witness] to falsify testimony.” (Tr. 28:23-

29:17). The court noted, “I find [petitioner’s] conduct in

regard to talking with someone else to manufacture a story or a

defense just reprehensible.” (Tr. 57:10-15.) The court further

found petitioner’s subornation of perjury to be “extraordinarily

serious” and described it as “a significant factor in the

Court’s ultimate decision as to where within the guidelines the

sentence should be imposed.” (Tr. 57:10-58:1.)

In articulating its reasoning for the sentence it imposed,

the court stated that the first factor was petitioner’s attempt

to obstruct justice by asking someone to testify falsely. (See

Tr. 72:12-13.) The court further noted the “history beyond just

the act which resulted in Miss McCarthy’s death.” (Tr. 73:6-7.)

The history was one of petitioner’s extensive involvement in the

distribution of drugs and the “countless, countless families who

suffered as a result of the heroin that was distributed.” (Tr.

73:6-19.) The court noted its “responsibility . . . to project

a clear message that the courts . . . respond in a particular

kind of way to this criminal behavior” and stressed that the

“message has to be very clear to people who would ever think

that they should distribute heroin or any other drug.” (Tr.

74:8-16.)

On September 11, 2015, petitioner moved to vacate, set

aside, or correct his sentence under 28 U.S.C. § 2255, arguing

that under Burrage v. United States, 571 U.S. 204 (2014), the

mandatory minimum under count 8 was “no longer applicable.” The

sentencing court denied the motion. On May 29, 2018, the

petitioner filed this petition under § 2241, again challenging

his sentence under Burrage. On November 22, 2019, respondent

filed a motion to dismiss or transfer, arguing that this court

lacks jurisdiction to hear this § 2241 petition. (ECF No. 11.)

II. Standard of Review of Pro Se Objections

Pursuant to Fed. R. Civ. P. 72(b), the court must “make a

de novo determination upon the record . . . of any portion of

the magistrate judge's disposition to which specific written

objection has been made.” However, the court is not required to

review, under a de novo or any other standard, the factual or

legal conclusions of the magistrate judge as to those portions

of the findings or recommendation to which no objections are

addressed. See Thomas v. Arn, 474 U.S. 140, 149–50 (1985).

Furthermore, de novo review is not required and is

unnecessary “when a party makes general and conclusory

objections that do not direct the court to a specific error in

the magistrate's proposed findings and recommendations.”

Orpiano v. Johnson, 687 F.2d 44, 47–48 (4th Cir. 1982); see also

United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007)

(“[T]o preserve for appeal an issue in a magistrate judge's

report, a party must object to the finding or recommendation on

that issue with sufficient specificity so as reasonably to alert

the district court of the true ground for the objection.”);

McPherson v. Astrue, 605 F. Supp. 2d 744, 749 (S.D.W. Va. 2009)

(“[F]ailure to file a specific objection constitutes a waiver of

the right to de novo review.”).

“A document filed pro se is ‘to be liberally construed.’”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.

Gamble, 429 U.S. 97, 106 (1976)). Specifically as to objections

to a PF&R, courts are “under an obligation to read a pro se

litigant’s objections broadly rather than narrowly.” Beck v.

Comm’r of Internal Revenue Serv., 1997 WL 625499, at *1-2

(W.D.N.C. June 20, 1997) (citing Orpiano, 687 F.2d at 48).

However, objections that are “unresponsive to the reasoning

contained in the PF&R” are irrelevant and must be overruled.

Kesterson v. Toler, 2009 WL 2060090, at *1 (S.D.W. Va. July 7,

2009) (citing Orpiano, 687 F.2d at 47).

III. Petitioner’s Objections

The court finds that Judge Bailey’s description of the

objections in another case to apply here as well:

Petitioner’s Objections do not specifically contest

the [PF&R]. Instead, the vast majority of the

Objections are simply paragraphs copied from a Sixth

Circuit case, Harrington v. Ormond, 900 F.3d 246 (6th

Cir. 2018), in which the Sixth Circuit found the

petitioner to have “properly petitioned for relief

under § 2241” based on Burrage. This Court assumes

petitioner did such because he believes Harrington is

analogous to his instant § 2241 Petition and wants

this Court to find the same.

Beuterbaugh v. Warden, FCI Gilmer, No. 5:19-CV-239, 2020 WL

1433536, at *2 (N.D.W. Va. Mar. 23, 2020).

In Harrington, the Sixth Circuit construed the § 2241

petition before it “as one of actual innocence,” applied the

savings clause test applicable in that circuit – which requires

a petitioner to show that “it [is] more likely than not that no

reasonable juror would have convicted him” – and determined that

an evidentiary hearing was necessary to determine whether the

petitioner there could make such a showing. See 900 F.3d 246,

249-50.

The Sixth Circuit has a different savings clause test than

the Fourth Circuit does, and Sixth Circuit case law is not

binding on this court. Moreover, petitioner does not explain

why Harrington forms the basis for a valid objection to the

PF&R. He does not explain how that case is similar to this one.

He does not renew his request for an evidentiary hearing, which

was the only relief that the Sixth Circuit provided there.

Instead, he concludes that “it is indisputable that the District

Court erred when it sentenced Gibson under the death caused

[sic] enhancement pursuant to USSG § 2D1.1(a)(2), when the

death-result enhancement was not submitted to the jury and found

beyond a reasonable doubt. Burrage, 571 U.S. at 210.” (ECF No.

15, at 7.) He concludes by asking that the court “vacate his

sentence for resentencing.” (Id.)

A guilty plea is essentially the equivalent of a jury

conviction. Although Burrage spoke in terms of what needed to

be submitted to a jury, it did not change the fundamental

principle that a guilty plea renders a jury unnecessary. See

571 U.S. at 210. As the Seventh Circuit has explained, “The

Burrage holding is not about who decides a given question (judge

or jury) or what the burden of proof is (preponderance versus

proof beyond a reasonable doubt). It is rather about what must

be proved.” Krieger v. United States, 842 F.3d 490, 499-500

(7th Cir. 2016). Petitioner’s objection that his sentence

cannot stand because a jury did not convict him is therefore

OVERRULED.

Petitioner also objects to the overall conclusion that his

petition does not qualify under the savings clause. See 28

U.S.C. § 2255(e). The savings clause test applies when

(1) at the time of sentencing, settled law of this

circuit or the Supreme Court established the legality

of the sentence; (2) subsequent to the prisoner's

direct appeal and first § 2255 motion, the

aforementioned settled substantive law changed and was

deemed to apply retroactively on collateral review;

(3) the prisoner is unable to meet the gatekeeping

provisions of § 2255(h)(2) for second or successive

motions; and (4) due to this retroactive change, the

sentence now presents an error sufficiently grave to

be deemed a fundamental defect.

United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018).

Section 841(b)(1)(C) of title 21 of the United States Code

declares that if “death or serious bodily injury results” from a

defendant’s distribution of certain controlled substances, the

penalty is a minimum of twenty years imprisonment. Petitioner

argues that in light of the Supreme Court’s decision in Burrage,

his sentence for violating this statute was imposed in error.

In Burrage, the Court held that in order to prove criminal

liability under § 841(b)(1)(C), the government must prove that

the victim’s use of the drug that the defendant distributed to

the victim was either (1) “independently sufficient to cause the

victim’s death or serious bodily injury” or (2) “a but-for cause

of the death or injury.” See 571 U.S. at 218–19. The Court

rejected the use of a jury instruction that required the drug to

be merely a “contributing cause” of death. Id. at 208. The

victim in Burrage died after “an extended drug binge,” and

experts who testified at trial were unable to say whether he

would have lived but for his use of the one gram of heroin that

Marcus Burrage had distributed to him. Id. at 206-07.

Although § 841(b)(1)(C) simply describes the penalties for

drug distribution, the Court explained that when the government

seeks to prove a “death results” distribution crime under

§ 841(b)(1)(C), the resulting death “is an element that must be

submitted to the jury and found beyond a reasonable doubt.”

Burrage, 571 U.S. at 210. This is because under Alleyne v.

United States, 570 U.S. 99 (2013), “any fact that increases the

mandatory minimum sentence for a crime is an element of a crime

that must be submitted to a jury and found beyond a reasonable

doubt.”3

For purposes of his 28 U.S.C. § 2241 challenge, Burrage

helps petitioner only if it is retroactively applicable on

collateral review. See Wheeler, 886 F.3d at 429. The

substantive law of the Second Circuit applies to decide the

retroactivity question. See Hahn v. Moseley, 931 F.3d 295, 301

(4th Cir. 2019).4 Although the Second Circuit has yet to tackle

whether Burrage is retroactive, the Fifth, Sixth, Seventh, and

Eighth Circuits have held that it is. Santillana v. Upton, 846

3 Even in post-Burrage jury trials, however, unless the record

suggests that the victim “might have died nonetheless from the

effects of other substances,” courts are not required to provide

jury instructions clarifying that “results from” requires but-

for causation or independently sufficient causation. See United

States v. Alvarado, 816 F.3d 242, 249 (4th Cir. 2016).

4 The PF&R mistakenly identifies the controlling law as that of

the First Circuit, but this error is harmless because it

concludes that Burrage is retroactive.

F.3d 779, 784 (5th Cir. 2017) (“In sum, as a substantive

decision narrowing the scope a federal criminal statute, Burrage

applies retroactively to cases on collateral review.”);

Harrington v. Ormond, 900 F.3d 246, 249 (6th Cir. 2018)

(“Substantive decisions that narrow the scope of a criminal

statute by interpreting its terms apply retroactively to cases

on collateral review. Burrage fits that bill: because but-for

causation is a stricter requirement than, for example, the

contributing-cause rule rejected in Burrage, some conduct

punished by 21 U.S.C. § 841(b)(1) pre-Burrage is no longer

covered post-Burrage.” (internal quotation marks and citations

omitted)); Krieger v. United States, 842 F.3d 490, 500 (7th Cir.

2016) (“Burrage applied a new substantive rule that must be

applied on collateral review.”); Ragland v. United States, 784

F.3d 1213, 1214 (8th Cir. 2015) (accepting government’s

concession on retroactivity issue). Given the Second Circuit’s

silence on the issue and the weight of persuasive authority,

this court agrees with Magistrate Judge Tinsley’s conclusion

that, for purposes of this petition, Burrage applies

retroactively upon collateral review.

Respondent’s motion argues that the petition does not fall

under the savings clause of § 2255(e). Because the savings

clause is jurisdictional, see Wheeler, 886 F.3d at 426,

respondent’s motion is properly construed as a motion to dismiss

under Federal Rule of Civil Procedure 12(b)(1). The bulk of

respondent’s motion rests on the premise that Burrage does not

apply retroactively on collateral review. Respondent says that

the petition fails prong two of the § 2255(e) savings clause

test set forth in Wheeler.

The PF&R correctly rejects respondent’s contention that

this petition fails under prong two of Wheeler because Burrage

is not retroactive; nevertheless, the PF&R correctly concludes

that the petition fails under prong four of Wheeler. Prong four

requires due to a retroactive change in the law, the “sentence

now presents an error sufficiently grave to be deemed a

fundamental defect.” Id. at 415.

Had there been an error here, it would likely be

“fundamental” because petitioner was sentenced under mandatory

guidelines. Compare Braswell v. Smith, 952 F.3d 441, 450 (4th

Cir. 2020) (“Because Appellant's mandatory minimum was

erroneously increased, according to Wheeler, his sentence

‘presents an error sufficiently grave to be deemed a fundamental

defect.’”) with United States v. Foote, 784 F.3d 931, 940 (4th

Cir. 2015) (“Considering where this case falls on the

cognizability spectrum, we conclude Appellant’s career offender

designation was not a fundamental defect that inherently results

in a complete miscarriage of justice.”). But there was no error

at all, so the PF&R is correct that this petition fails under

prong four of Wheeler.

In Wheeler, there was a sentencing error as a matter of law

because the predicate offenses no longer qualified under a

change in the law. Here, petitioner does not argue an error as

a matter of law. Petitioner argues an error of proof. First

and foremost, this claim of error fails because petitioner

pleaded guilty.

[A] defendant’s solemn declarations in open court

affirming [a plea] agreement . . . carry a strong

presumption of verity because courts must be able to

rely on the defendant’s statements made under oath

during a properly conducted Rule 11 plea colloquy.

Indeed, because they do carry such a presumption, they

present a formidable barrier in any subsequent

collateral proceedings . . . . Thus, in the absence of

extraordinary circumstances, allegations in a § 2255

motion that directly contradict the petitioner's sworn

statements made during a properly conducted Rule 11

colloquy are always palpably incredible and patently

frivolous or false.

United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005)

(citations and quotation marks omitted).

As part of his plea, petitioner admitted that his

distribution of heroin to Ms. McCarthy resulted in her death.

The PF&R explains,

During Petitioner’s plea hearing, the government

proffered that the medical examiner made findings that

are consistent with a heroin overdose, including

congestion and edema in the lungs. The proffer

further indicated that the medical examiner would

testify that after heroin is ingested, it breaks down

in a matter of minutes into morphine and 6-

monoacetylmorphine, both of which were found in

McCarthy's blood specimen.

The toxicology report indicated that McCarthy had a

lethal amount of morphine in her body. Additionally,

the medical examiner did not attribute any other

substances as contributing to or causing McCarthy’s

death. Rather, as noted above, his cause of death

finding was “acute drug: morphine from heroin

intoxication.” Moreover, at his plea hearing,

Petitioner voluntarily admitted under oath that his

distribution of heroin to McCarthy resulted in her

death.

(ECF No. 12, at 29.)

Second, unlike in Burrage, petitioner points to no expert

opinions suggesting that Ms. McCarthy would have lived but for

her use of the heroin, nor to other evidence that the heroin was

insufficient to cause her death. Petitioner contends that this

case is just like Burrage because besides using the heroin that

he distributed to her, Ms. McCarthy allegedly drank alcohol,

smoked marijuana, and took alprazolam in the time leading up to

her death. He says that “there was a [sic] testimony . . .

proving that Jill ha[d] been drinking, eating, taking

alprazolam, along with who knows what others were seen.” (ECF

No. 2, at 23.) Petitioner states that it is “questionable”

whether Ms. McCarthy died from “heroin alone.” (Id. at 21-22.)5

5 To the extent petitioner implies that the death must have

resulted in “heroin alone” in order to comport with Burrage,

petitioner is wrong. Other substances could have “played a part

in [Ms. McCarthy’s] demise, so long as, without the incremental

effect of the [heroin], [s]he would have lived.” Burrage, 571

U.S. at 211.

He suggests that “a complete autopsy result of the lab

procedures” would help clear up the uncertainty. Petitioner’s

speculations are insufficient to undermine the factual basis of

his conviction. Also, petitioner acknowledged at his sentencing

that the “heroin that was given to Ms. McCarthy was

extraordinarily potent.” (Tr. 41:20-22.)

Because there is no error at all under prong four of

Wheeler, petitioner’s objection is OVERRULED.

IV. Conclusion

The court has reviewed the record, the Magistrate Judge’s

findings and recommendations, and petitioner’s objections. For

the reasons discussed above, petitioner’s objections are

OVERRULED.

The court adopts the Findings and Recommendation of

Magistrate Judge Tinsley as follows:

1. Petitioner’s § 2241 petition is DENIED;

2. Respondent’s motion to dismiss is GRANTED;

3. Respondent’s motion to transfer is DENIED; and

4. This action is DISMISSED without prejudice for lack of

jurisdiction.

Additionally, the court has considered whether to grant a

certificate of appealability. See 28 U.S.C. § 2253(c). A

certificate will not be granted unless there is “a substantial

showing of the denial of a constitutional right.” 28 U.S.C.

2253(c) (2). The standard is satisfied only upon a showing

that reasonable jurists would find that any assessment of the

constitutional claims by this court is debatable or wrong and

that any dispositive procedural ruling is likewise debatable.

Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.

McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,

683-84 (4th Cir. 2001). The court concludes that the governing

standard is not satisfied in this instance. Accordingly, the

court DENIES a certificate of appealability.

The Clerk is further directed to send a copy of this

Memorandum Opinion and Order to counsel of record and any

unrepresented parties.

IT IS SO ORDERED this 15th day of March, 2021.

BNTER:

Rautd A Dols

David A. Faber

Senior United States District Judge

16