Petition for Writ of Certiorari — Abel Diaz, Petitioner v. Warden, Federal Correctional Institution, Bennettsville

App. 1

APPENDIX A

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

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No. 20-7713

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ABEL DIAZ,

Petitioner - Appellant,

v.

WARDEN FCI BENNETTSVILLE,

Respondent - Appellee.

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Appeal from the United States District Court for the

District of South Carolina, at Florence. Bruce H.

Hendricks, District Judge. (4:19-cv-02423-BHH)

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Submitted: May 19, 2021 Decided: September 20, 2021

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Before GREGORY, Chief Judge, AGEE, and HARRIS,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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App. 2

William Mallory Kent, KENT & MCFARLAND, Jacksonville, Florida, for Appellant. Peter M. McCoy, Jr.,

United States Attorney, Katherine Hollingsworth Flynn,

Assistant United States Attorney, OFFICE OF THE

UNITED STATES ATTORNEY, Florence, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in

this circuit.

PER CURIAM:

Abel Diaz, a federal prisoner, appeals the district

court’s order denying relief on his 28 U.S.C. § 2241 petition in which he sought to challenge his sentence

by way of the savings clause in 28 U.S.C. § 2255. The

district court dismissed the petition without prejudice after concluding that Diaz could not demonstrate

entitlement to raise his claim through the savings

clause. We affirm.

Pursuant to § 2255(e), a prisoner may challenge

his sentence in a traditional writ of habeas corpus pursuant to § 2241 if a § 2255 motion would be inadequate

or ineffective to test the legality of his detention. Braswell v. Smith, 952 F.3d 441, 443-44 (4th Cir. 2020). If

the prisoner cannot show that § 2255 is inadequate or

ineffective, the district court lacks jurisdiction to consider the petition. United States v. Wheeler, 886 F.3d

415, 423 (4th Cir. 2018).

In evaluating a § 2241 petition brought pursuant

to the savings clause, we consider Fourth Circuit

App. 3

procedural law but the substantive law of the circuit in

which the petitioner was convicted. Hahn v. Moseley,

931 F.3d 295, 300-01 (4th Cir. 2019). “Whether a petitioner satisfies the requirements of the savings clause

is a jurisdictional question that we review de novo.”

Ham v. Breckon, 994 F.3d 682, 688 (4th Cir. 2021).

It is “beyond question that § 2255 is not rendered

inadequate or ineffective merely because an individual

has been unable to obtain relief under that provision,

or because an individual is procedurally barred from

filing a § 2255 motion.” Farkas v. Butner, 972 F.3d 548,

555 (4th Cir. 2020) (alteration and internal quotation

marks omitted). Rather, this Court has crafted “two

separate tests that reflect the limited circumstances

under which a convicted prisoner may invoke § 2255(e).”

Id. at 560. In Wheeler, we established a test for determining whether a challenge to a criminal sentence is

cognizable by way of the savings clause. Under that

test,

[section] 2255 is inadequate and ineffective to

test the legality of a sentence 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

App. 4

sentence now presents an error sufficiently

grave to be deemed a fundamental defect.

Wheeler, 886 F.3d at 429.

As the district court concluded, and Diaz effectively concedes, he cannot satisfy the Wheeler test.

Diaz asserts that his sentence violated Supreme Court

authority from its inception, contrary to Wheeler’s first

prong. Further, the substantive authority on which he

relies issued before his first § 2255 motion. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); United

States v. Acevedo, 285 F.3d 1010, 1012 (11th Cir. 2002)

(per curiam). This authority also does not apply retroactively on collateral review. See Dohrmann v. United

States, 442 F.3d 1279, 1282 (11th Cir. 2006); McCoy v.

United States, 266 F.3d 1245, 1258 (11th Cir. 2001).

Thus, Diaz’s claim likewise cannot satisfy Wheeler’s

second prong.

To overcome this jurisdictional deficiency, Diaz

asks us to recognize a separate savings clause test that

would encompass his Apprendi claim. We decline

Diaz’s invitation. We have recognized that the Wheeler

test was intended to encompass the “limited circumstances under which a convicted prisoner may invoke

§ 2255(e)” to challenge “the length of a criminal sentence for an otherwise valid conviction.”* Farkas, 972

* Diaz points to our panel decision in United States v. Surratt, 797 F.3d 240 (4th Cir. 2015), rehearing en banc granted,

United States v. Surratt, No. 14-6851 (4th Cir. Dec. 2, 2015) (unpublished order), dismissed as moot, United States v. Surratt, 855

F.3d 218 (4th Cir. 2017) (en banc), as persuasive authority. As

Diaz himself acknowledges, however, the Surratt panel decision

App. 5

F.3d at 560; see Braswell, 952 F.3d at 443-44; Lester v.

Flournoy, 909 F.3d 708, 712 (4th Cir. 2018). We also recently held that the § 2241 remedy is not available for

constitutional claims, as allowing such claims to be

raised under the savings clause would circumvent the

carefully cabined remedy for constitutional claims provided by § 2255. Farkas, 972 F.3d at 559. “A panel of

this court cannot overrule, explicitly or implicitly, the

precedent set by a prior panel of this court.” World Fuel

Servs. Trading, DMMC v. Hebei Prince Shipping Co.,

783 F.3d 507, 523-24 (4th Cir. 2015) (internal quotation

marks omitted).

Accordingly, we affirm the district court’s judgment. We dispense with oral argument because the

facts and legal contentions are adequately presented

in the materials before this court and argument would

not aid the decisional process.

AFFIRMED

was vacated by our grant of rehearing en banc, see 4th Cir. R.

35(c). It also preceded our decision in Wheeler, see 886 F.3d at 42122, 428-29, 433 (discussing Surratt), and the narrowly circumscribed test we articulated in that subsequent case.

App. 6

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

FLORENCE DIVISION

Abel Diaz,

) Civil Action No.

) 4:19-2423-BHH

Petitioner,

) ORDER AND OPINION

v.

)

) (Filed Oct. 19, 2020)

Warden FCI Bennettsville,

)

Respondent. )

Petitioner Abel Diaz (“Petitioner”) filed this application for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2241. (ECF No. 1.) In accordance with 28 U.S.C.

§ 636(b) and Local Rule 73.02(B)(2)(d), D.S.C., the action was referred to United States Magistrate Judge

Thomas E. Rogers, III, for pretrial handling and a

Report and Recommendation (“Report”). Magistrate

Judge Rogers recommends that Respondent’s motion

to dismiss be granted and the § 2241 petition be dismissed without prejudice for lack of jurisdiction. (ECF

No. 31.) The Report sets forth in detail the relevant

facts and standards of law on this matter and the

Court incorporates them without recitation.1

1

As always, the Court says only what is necessary to address

Petitioner’s objections against the already meaningful backdrop

of a thorough Report and Recommendation by the Magistrate

Judge; comprehensive recitation of law and fact exist there.

App. 7

BACKGROUND

In this § 2241 action, Petitioner, a federal inmate

at FCI Bennettsville, challenges his federal sentence,

claiming the sentencing court violated his due process

rights when it sentenced him to a term of life imprisonment in excess of the statutory maximum permitted

for his drug offense in count one of the indictment

without a jury finding of the drug quantity required to

exceed a twenty year maximum sentence as authorized by Congress for the underlying crime. (ECF No. 1

at 5.) Petitioner has previously made direct and collateral challenges to his conviction and sentence, including the Apprendi v. New Jersey, 530 U.S. 466 (2000)

violation that he advances here. (See ECF No. 31 at 1–

4 (detailing the procedural history of Petitioner’s previous challenges).) Respondent filed a motion to dismiss on November 14, 2019, and Petitioner responded

on March 20, 2020. (ECF Nos. 17 & 29.) The Magistrate

Judge issued the instant Report recommending that

the motion to dismiss be granted on April 20, 2020.

(ECF No. 31.) Petitioner timely filed an objection (ECF

No. 32) to the Report. The Court has reviewed those

objections, but finds them to be without merit; therefore, it will enter judgment accordingly.

STANDARD OF REVIEW

The Magistrate Judge makes only a recommendation to the district court. The recommendation has no

presumptive weight. The responsibility to make a final determination remains with the district court.

App. 8

Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The

Court is charged with making a de novo determination

of those portions of the Report to which specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the

Magistrate Judge, or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). However, the Court

need not conduct a de novo review when a party makes

only “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 (4th Cir. 1982) (“[D]e novo review [is] unnecessary in . . . situations 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 recommendation.”). In the absence of a specific objection, the Court reviews the

Magistrate’s conclusions only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310,

315 (4th Cir. 2005). On May 4, 2020, Petitioner filed a

specific objection (ECF No. 85), and the Court has thus

conducted the requisite de novo review.

DISCUSSION

The Magistrate Judge found that dismissal is warranted because Petitioner is unable to satisfy the

§ 2255 savings clause and this Court lacks jurisdiction

to consider the petition. (See ECF No. 31.) “[I]t is well

established that defendants convicted in federal court

are obliged to seek habeas relief from their convictions

and sentences through § 2255.” Rice v. Rivera, 617 F.3d

App. 9

802, 807 (4th Cir. 2010) (citing In re Vial, 115 F.3d 1192,

1194 (4th Cir. 1997) (en banc)). However, § 2255 contains a “savings clause” that allows federal prisoners

to proceed under § 2241 when a motion under § 2255

would prove “inadequate or ineffective” to test the legality of the detention.2 In re Vial, 115 F.3d at 1194.

“[T]he remedy afforded by § 2255 is not rendered inadequate or ineffective merely because an individual has

been unable to obtain relief under that provision . . . or

because an individual is procedurally barred from filing a § 2255 motion. . . .” Id. at n.5.

The Fourth Circuit has identified specific circumstances when a federal prisoner may use a § 2241 petition to contest his sentence pursuant to the savings

clause. Specifically, § 2255 is inadequate or ineffective

when:

(1) at the time of the 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

2

The “savings clause” 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.

28 U.S.C. § 2255(e) (emphasis added).

App. 10

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.

U.S. v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018). The

savings clause is a jurisdictional provision; if a petitioner cannot satisfy the savings clause, the district

court lacks jurisdiction to consider the petition. Id. at

423. Here, Magistrate Judge Rogers determined that

Petitioner cannot meet the second prong of the Wheeler

test because there was no subsequent change of law

deemed to apply retroactively on collateral review subsequent to Petitioner’s direct appeal and first § 2255

motion. (See ECF No. 31 at 8.) The Report states:

Apprendi was decided prior to Petitioner’s

trial and direct appeal. . . . Petitioner relies on

the Eleventh Circuit case of United States v.

Acevedo, [285 F.3d 1010 (11th Cir. 2002)], asserting that the Eleventh Circuit Apprendi

law changed. The Eleventh Circuit case that

Petitioner relies was decided in 2002, prior to

Petitioner’s § 2255 motion in 2003. Additionally, Acevedo did not make Apprendi retroactive. Therefore, this argument fails and

Petitioner fails to meet the second prong of

Wheeler.

(ECF No. 31 at 8.)

With the exception of a few opening paragraphs,

Plaintiff ’s objection is a verbatim restatement of his

App. 11

response in opposition to Respondent’s motion to dismiss. (Compare ECF No. 32, with ECF No. 29.) Petitioner concedes that “if the four prong Wheeler test

were to govern his case without exception, that the

[Report] is correct. However, Diaz argues for an exception to Wheeler for his case, the procedural posture of

which Wheeler did not anticipate nor resolve.” (ECF

No. 32 at 1 (emphasis added).) Counsel is to be commended for making creative arguments as to why

Wheeler should not apply and why granting an exception to the second prong of Wheeler would not open the

floodgates of litigation. (See id. at 3–6.) However, unfortunately for Petitioner, Wheeler undoubtedly applies

to Petitioner’s § 2241 petition. Moreover, Petitioner’s

objection fails to demonstrate any specific error in the

Magistrate Judge’s proposed findings and recommendations. The Report concludes that Petitioner is unable

to meet the § 2255 savings clause requirements and

this Court lacks jurisdiction to consider the petition.

After de novo review, the Court agrees with the analysis of the Magistrate Judge and finds no error therein.

Accordingly, the Court overrules Petitioner’s objection.

In truth, if Petitioner’s contention is correct that

the Eleventh Circuit misapplied Apprendi when deciding his direct appeal, then he cannot satisfy even the

first prong of the Wheeler test, because it could not be

said that the Supreme Court precedent at issue established the legality of his sentence when it was rendered. See Wheeler, 886 F.3d at 429. There does appear

to be tension between the Eleventh Circuit’s decision

affirming Petitioner’s life sentence on direct appeal—

App. 12

finding (1) that there was no Apprendi error, and

(2) even if there had been error, it would not have

affected Diaz’s substantial rights (see ECF No. 1-1

at 12–14 (quoting relevant language from Eleventh

Circuit ruling))—and the Eleventh Circuit’s opinion in

Acevedo—stating, “Sentencing a defendant in excess of

twenty years (the statutory maximum allowed without

a drug quantity determination pursuant to Section

841(b)(1)(C)), without a jury determination of drug

quantity constitutes plain error.” 285 F.3d at 1012. Of

course, the Court does not have the authority to declare that the Eleventh Circuit’s ruling in Petitioner’s

direct appeal was “wrongly decided,” and the Court declines to express any opinion on the matter. The Court

is not unsympathetic to Petitioner’s procedural plight.

But the Court is neither at liberty to invent, in contravention of controlling Fourth Circuit precedent, its own

rubric for when a § 2241 petition is permitted to collaterally attack a federal sentence, nor to act as a de facto

supervisory court to the Eleventh Circuit Court of Appeals. If Petitioner were to be allowed to pursue his

current claim in this Court by way of a § 2241 petition,

the jurisdictional law would have to change.

CONCLUSION

For the reasons stated above and by the Magistrate Judge, the Court overrules Petitioner’s objections

and adopts and incorporates herein the Magistrate

Judge’s Report. It is therefore ORDERED that Petitioner’s § 2241 petition is DISMISSED without

App. 13

prejudice and without requiring the respondent to file

a return.

IT IS SO ORDERED.

/s/Bruce Howe Hendricks

United States District Judge

October 19, 2020

Greenville, South Carolina