United States v. Robinson
0:08-cr-00401
D.S.C.Mar 31, 2020Background
- Defendant Zhivago Anwah Robinson filed a pro se 28 U.S.C. § 2255 motion claiming he is not a "Career Offender" because he lacks two qualifying felonies and citing United States v. Havis for the proposition that the Guidelines' "controlled substance offense" definition excludes attempt crimes.
- Robinson specifically disputed that a prior possession conviction counted as a predicate and argued South Carolina's drug statute is overbroad because it criminalizes attempted transfers.
- The Government moved to dismiss, arguing Robinson’s filing is a second or successive § 2255 motion for which he must obtain Fourth Circuit permission, which he had not obtained.
- Robinson asked the court to treat his challenge as a § 2241 petition under the § 2255(e) savings clause, relying on United States v. Wheeler to bypass § 2255's gatekeeping.
- The district court applied Wheeler’s four-prong test and other Fourth Circuit precedent, concluded Wheeler did not apply (Havis is not controlling in this circuit and the Guidelines were advisory at sentencing), and found the filing was a successive § 2255 motion for which Robinson lacked appellate authorization.
- The court dismissed the motion for lack of jurisdiction and denied a certificate of appealability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Havis renders SC drug statute overbroad so convictions cannot be career-offender predicates | United States: Havis is not controlling; SC statutes are divisible and Robinson’s predicates are valid | Robinson: Havis shows attempts are excluded, making SC statute overbroad and invalid as predicate | Court: Havis not controlling here; SC statutes divisible (Furlow); predicates appear proper |
| Whether Robinson may proceed via § 2241 under Wheeler savings-clause | United States: Wheeler’s four prongs not satisfied; no controlling circuit change; jurisdiction lacking | Robinson: Wheeler allows § 2241 attack because § 2255 is ineffective for his claim | Court: Wheeler inapplicable — no intervening settled law in this circuit and no fundamental defect because sentencing was under advisory Guidelines |
| Whether the motion is a successive § 2255 requiring Fourth Circuit authorization | United States: Robinson previously filed § 2255; this is successive and unauthorized | Robinson: Did not obtain permission; seeks alternative relief via § 2241 | Court: Motion is successive; Robinson failed to obtain required appellate authorization; district court lacks jurisdiction |
| Whether a Certificate of Appealability (COA) should issue | United States: COA unwarranted | Robinson: Would contend issues are debatable | Court: COA denied — legal questions not reasonably debatable |
Key Cases Cited
- United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (held Guidelines’ "controlled substance offense" definition excludes attempt crimes on direct appeal)
- United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018) (articulated four‑prong test for using § 2241 via § 2255(e) savings clause)
- United States v. Winestock, 340 F.3d 200 (4th Cir. 2003) (district courts must treat miscaptioned successive § 2255 motions as successive)
- Gonzalez v. Crosby, 545 U.S. 524 (2005) (framework for successive collateral attacks and relationship between § 2255 and § 2241)
- Lester v. Fournoy, 909 F.3d 708 (4th Cir. 2018) (misclassification as career offender can be fundamental only when Guidelines were mandatory pre‑Booker)
- United States v. Furlow, 928 F.3d 311 (4th Cir. 2019) (South Carolina drug statutes are divisible for categorical analysis)
- United States v. Booker, 543 U.S. 220 (2005) (holding Guidelines advisory rather than mandatory)
- Miller-El v. Cockrell, 537 U.S. 322 (2003) (standard for Certificate of Appealability)
- Slack v. McDaniel, 529 U.S. 473 (2000) (COA standard when district court dismisses on procedural grounds)