PATRICK MARLOWE, Petitioner - Appellant, v. WARDEN, FCI HAZELTON, Respondent - Appellee.
No. 20-6719
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Argued: March 10, 2021 Decided: July 27, 2021
NIEMEYER, MOTZ, and RUSHING, Circuit Judges.
PUBLISHED. Affirmed by published opinion. Judge Rushing wrote the opinion, in which Judge Niemeyer and Judge Motz joined. ARGUED: Jeremy Brian Gordon, JEREMY GORDON, PLLC, Mansfield, Texas, for Appellant. Jason Lee, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: William J. Powell, United States Attorney, Martinsburg, West Virginia, Tara N. Tighe, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.
Patrick Marlowe appeals the district court‘s dismissal of his
A.
Marlowe supervised corrections officers working the second shift at the county jail in Wilson County, Tennessee. United States v. Conatser, 514 F.3d 508, 514 (6th Cir. 2008). Marlowe, in his own words, ran “a different kind of shift.” Id. (internal quotation marks omitted). He and his officers “would strike and kick inmates who were loud, obnoxious, or uncooperative and would conceal their unjustified use of force through the denial of medical care and the falsification of incident reports.” Id.
This appeal concerns Marlowe‘s complicity in the death of detainee Walter Kuntz. We briefly summarize the relevant facts as recounted by the Sixth Circuit when it affirmed Marlowe‘s resulting prison sentence. Id. at 516-518.
On January 13, 2003, authorities booked Kuntz into Marlowe‘s jail after he left the scene of a minor automobile accident. His blood alcohol level registered approximately .26. Kuntz soon began causing a ruckus in his cell. When Kuntz ignored commands to stop, Marlowe “punched Kuntz in the left side of his head, threw him toward the wall, and kicked, punched, and kneed Kuntz in the rib area.” Id. at 516. Kuntz calmed down briefly before again banging on his cell door. Marlowe reentered Kuntz‘s cell and “struck Kuntz in the left temple area, knocking him down, and then punched and kicked Kuntz some more.” Id. Another officer sprayed Kuntz with a chemical agent as the officers left the cell.
Kuntz was quiet for a time before again yelling and kicking the cell door. Marlowe instructed one of his subordinates to “take care of the situation.” Id. (internal quotation marks omitted). The subordinate returned to Kuntz‘s cell with other officers. As Kuntz backed away, an officer “pushed him onto the bench next to the wall,” with the right side of Kuntz‘s head facing the officer and the left side four or five inches from the wall. Id. The officer delivered “three or four ‘full power’ punches to the right side of Kuntz‘s head. Each time, the left side of Kuntz‘s head bounced off the wall and made a ‘cracking sound.’ The officers left Kuntz holding his head and moaning. [The officer] told Marlowe he had ‘taken care of it.‘” Id. at 516-517.
Over the following hours, the officers observed Kuntz lying unconscious in his own vomit and learned that he had undergone brain surgery a year or two earlier. Though Kuntz was unresponsive, Marlowe did not request medical attention. Instead, Marlowe and a subordinate “tried to rouse him by shaking him, patting him, and pouring a bucket of ice water over him.” Id. at 517. Kuntz did not respond. The officers used ammonia smelling salts to no avail, noticing instead “that Kuntz would stop breathing until the salts were taken away.” Id. Yet medical care went unsolicited. Another check on Kuntz found him lying down with his eyes open and unresponsive “to being shaken or having a light shone in his eyes.” Id. A subordinate alerted Marlowe; he took no action.
Approximately six hours after Kuntz‘s last beating, the officers called an ambulance. The responding EMTs determined that Kuntz “was a level three on the level of consciousness scale—the same level as a deceased person.” Id. The EMTs believed they were responding to a case of possible alcohol poisoning, and no one disabused them of that notion. Rather than being airlifted to a trauma center for a possible head injury, Kuntz went to a local medical center. Only following a brain scan was Kuntz flown to a trauma center. His condition was beyond repair:
A neurosurgeon evaluated Kuntz, who was on a ventilator and had no brain stem reflexes. The doctor concluded that
Kuntz had a very large subdural hematoma that had caused irreversible brain damage. He added that Kuntz‘s low body temperature had exacerbated his condition because it interfered with normal clotting. Kuntz died when he was removed from the ventilator two days later. Several doctors testified at trial that Kuntz‘s head injuries were consistent with blunt force trauma, and that such injuries are generally treatable if medical attention is sought in the first hours after a brain injury. It was also explained that within an hour of injury a person with a subdural hematoma
would start to experience a progression of symptoms such as dizziness, headache, nausea, vomiting, sleepiness, lethargy, and eventually unresponsiveness.
Id. at 517-518 (footnote omitted).
B.
A federal grand jury indicted Marlowe and other officers for depriving detainees and prisoners of their rights secured by the Constitution or laws of the United States in violation of
While some of his codefendants pleaded guilty (and testified against him), Marlowe opted for trial. At the close of evidence, the district court instructed the jury on the “death results” element in Counts Two and Three:
For Counts Two and Three, you also must decide whether the government has proved beyond a reasonable doubt that Walter Kuntz‘s death resulted from the conduct of Defendant Marlowe.
The government need only prove that bodily injury or death was a natural and foreseeable result of the defendant‘s conduct. The government does not need to prove that a defendant intended to cause bodily injury or death or that a defendant‘s acts were the direct, immediate or sole cause of bodily injury or death.
In 2009, Marlowe moved to vacate, set aside, or correct his conviction and sentence under
exposure and to recommend that he accept the Government‘s plea offer. The district court denied the motion and declined to issue a certificate of appealability, as did the Sixth Circuit.
C.
In July 2017, Marlowe filed the
Marlowe contends that the jury instructions in his case ran afoul of Burrage because the jury was not asked to decide whether Kuntz would have lived but for Marlowe‘s
conduct but rather was instructed that Marlowe‘s acts need not have been “the direct . . . cause” of Kuntz‘s death. The Government moved to dismiss the petition for lack of jurisdiction, arguing that Marlowe was not entitled to invoke Section 2241 because he had not shown, pursuant to the so-called “savings clause” of
The district court granted the motion to dismiss. Marlowe v. Warden, FCI Hazelton, No. 5:17-CV-111, 2020 WL 2043807 (N.D. W. Va. Apr. 28, 2020). The court recognized that, when evaluating claims under the savings clause, it must apply the
were correct and (2) the evidence and verdict demonstrated that Marlowe‘s withholding of medical care was the sole proximate cause of Kuntz‘s death. Id. at *6-7.
Marlowe timely appealed. He contends that after Burrage the causation jury instruction in his case was fatally flawed and the district court further erred by requiring him to satisfy the Sixth Circuit‘s actual-innocence standard. The Government urges us to affirm the district court‘s reasoning but also emphasizes that no binding precedent from the Sixth Circuit or the Supreme Court foreclosed Marlowe—at trial, on direct appeal, or in his initial Section 2255 motion—from making the argument he now attempts to advance.
II.
Marlowe bears the burden to establish the inadequacy or ineffectiveness of
A.
Federal prisoners generally must use the remedy-by-motion mechanism provided in
permission from the court of appeals by making a prima facie showing that either (1) “newly discovered evidence” proves he was not guilty of his offense or (2) a “previously unavailable” “new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court,” entitles him to relief.
Congress has provided one exception to this general rule. Section 2255(e)‘s savings clause permits a prisoner to file a traditional Section 2241 habeas petition if it “appears that the [Section 2255] remedy by motion is inadequate or ineffective to test the legality of his detention.”
Our Circuit has crafted a three-part test for determining whether a Section 2255 motion challenging a prisoner‘s conviction would prove “inadequate or ineffective.”3 That test provides that Section 2255 is inadequate and ineffective to test the legality of a conviction when:
(1) at the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner‘s direct appeal and first [Section] 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of [Section] 2255 because the new rule is not one of constitutional law.
In re Jones, 226 F.3d at 333–334. To resolve Marlowe‘s appeal, we need undertake only the first inquiry. Before doing so, however, we must define its substance.
B.
We have not previously had occasion to squarely address the meaning of our requirement that the “settled law of this circuit or the Supreme Court established the legality of the [prisoner‘s] conviction.” Id. After reviewing Jones, cases applying its standard, and the statutory scheme governing habeas proceedings, we conclude that the first step of the Jones test requires a prisoner invoking
1.
We begin with Jones. Byron Jones had been convicted of violating
Evaluating the meaning of the savings clause in this circumstance, we examined similar decisions from other circuits. In each case, “the court . . . noted that the prisoner‘s first [Section] 2255 motion was filed prior to the decision in Bailey, at a time when it would have been futile to challenge the then-prevailing interpretation of the ‘use’ prong of [Section] 924(c)(1)” in those circuits. Id. at 333 (emphasis added) (citing In re Davenport, 147 F.3d 605, 610–612 (7th Cir. 1998); Triestman v. United States, 124 F.3d 361, 376–380 (2d Cir. 1997); In re Dorsainvil, 119 F.3d 245, 251–252 (3d Cir. 1997)).4 This Court
“agree[d] with the rationale and holdings of th[o]se courts” and accordingly established the three-part test we use today. Id. Applying the first requirement of that test, the Jones Court explained that “[u]nder the settled law of this circuit at the time of Jones‘[s] conviction,” the discovery of four firearms in a locked closet was sufficient to support a conclusion that Jones “used” the guns for purposes of Section 924(c)(1). Id. at 334. In other words, before Bailey, circuit precedent foreclosed any argument by Jones that Section 924(c)(1) required active employment of a firearm.
This context informs our understanding of Jones‘s requirement that “settled law” at the time of the prisoner‘s conviction “established the legality of the conviction.” Id. at 333–334. The law was settled and adverse to the prisoners in Jones and the cases on which it relied because, at the time of their convictions, binding precedent foreclosed the statutory interpretation they later claimed undercut the legality of their convictions. In view of circuit precedent definitively interpreting the “use” prong of Section 924(c)(1) at the time of his conviction, it “would have been futile” for Jones to advance a contrary interpretation of the statute. Id. at 333. Jones is thus premised on the understanding that binding precedent previously prevented the prisoner from asserting the argument he later claims a change in the law has made available to him.
2.
Subsequent cases reinforce this interpretation. For example, in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), this Court relied on Jones to fashion a savings clause test for challenges to sentences. Convicted of various drug and firearm offenses, Wheeler faced an enhanced statutory mandatory minimum of 10 years’ imprisonment
based on a prior North Carolina felony drug offense. Wheeler, 886 F.3d at 419. When Wheeler was sentenced, our precedent held that “to determine whether a conviction is for a crime punishable by a prison term exceeding one year under North Carolina law, we consider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history.” Id. at 420 (alterations omitted) (quoting United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005)). Though Wheeler himself could have received only 6 to 8 months’ imprisonment for his North Carolina conviction, the offense carried a maximum aggravated sentence of 15 months. Id. So “any challenge” arguing that
The Wheeler Court adapted Jones‘s first requirement to focus on a prisoner‘s sentence rather than conviction, requiring that “at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence.” Id. at 429. And we found Wheeler satisfied this requirement. It was “undisputed that at the time [Wheeler] was sentenced in February 2008, his sentence was legal pursuant to Harp.” Id. Just as in Jones, published circuit precedent at the time foreclosed the argument Wheeler made in his subsequent habeas proceeding.
So too in other cases. In Lester v. Flournoy, 909 F.3d 708 (4th Cir. 2018), we held Section 2255 inadequate and ineffective under the Wheeler test, finding that when Lester
was sentenced, “settled precedent established that his past conviction for walkaway escape was a ‘crime of violence‘” under the Guidelines’ career-offender provision. 909 F.3d at 712. In Braswell v. Smith, 952 F.3d 441 (4th Cir. 2020), we found that, just as in Wheeler, settled law established the validity of the prisoner‘s sentence because the felony drug offense enhancement was controlled by “[t]he then-prevailing decision of United States v. Harp.” 952 F.3d at 447. In Jones v. Zych, 812 Fed. Appx. 115 (4th Cir. 2020), the first Wheeler requirement was satisfied because Supreme Court precedent permitting judicial factfinding as the basis for a statutorily increased mandatory minimum was “the law of the land at the time of Jones‘s sentencing.” 812 Fed. Appx. at 120–121. And in Hahn v. Moseley, 931 F.3d 295 (4th Cir. 2019), we found Jones‘s “settled law” requirement fulfilled where, at the time of Hahn‘s convictions, Tenth Circuit law held—contrary to later developments—that multiple charges under Section 924(c) based on a single instance of firearm possession were permissible if they did not contravene the Double Jeopardy Clause. 931 F.3d at 301.
Our consistent treatment of Jones‘s first requirement and its Wheeler analog evinces a focus on whether settled law at the time of the original criminal proceedings foreclosed the argument the prisoner later advances to challenge his conviction or sentence such that raising it earlier was or would have been futile.
3.
This reading of Jones‘s “settled law” requirement is also consonant with Section 2255 and the nature of the habeas remedy. Generally speaking, habeas proceedings are not the time to raise arguments a prisoner could have made, but did not, in the proceedings
culminating in his conviction. Principles of procedural default sharply limit a prisoner‘s ability to raise on collateral review claims not raised in his initial criminal proceeding or on direct appeal. See Bousley v. United States, 523 U.S. 614, 621–624 (1998); United States v. Frady, 456 U.S. 152, 167–168 (1982); see also United States v. Harris, 991 F.3d 552, 558 (4th Cir. 2021). And the gatekeeping provisions of
The text of the savings clause points in the same direction. As we have observed, “the text juxtapos[es] the terms ‘inadequate or ineffective’ with the phrase ‘to test the legality of [a prisoner‘s] detention.‘” Id. at 555 (internal quotation marks omitted). At a minimum, Section 2255 is not inadequate or ineffective to test an argument on an unsettled point of law that the prisoner could have asserted in his original criminal proceeding, on direct appeal, or in his initial Section 2255 motion. Cf. Wheeler, 886 F.3d at 429 (requiring that retroactive change in law occur after direct appeal and initial Section 2255 motion to “honor[] the saving clause‘s requirement that the [Section] 2255 motion be inadequate or ineffective“). Section 2255 would not condone a prisoner‘s failure to press his argument earlier, and “[i]t is beyond question that [Section] 2255 is not inadequate or ineffective
merely because an individual is unable to obtain relief under that provision.” In re Jones, 226 F.3d at 333; see also Farkas, 972 F.3d at 555–556. The savings clause “provide[s] only the tightest alleyway to relief.” Lester, 909 F.3d at 716. And in our Circuit, traversing that alleyway begins with showing that, at the time of the prisoner‘s original criminal proceeding, binding precedent foreclosed the argument he later seeks to advance in his Section 2241 petition.
C.
With the proper inquiry in mind, we now undertake it in Marlowe‘s case. When evaluating claims under the savings clause, “we look to the substantive law of the circuit where a defendant was convicted.” Hahn, 931 F.3d at 301. Because Marlowe was convicted in the Middle District of Tennessee, we assess the “settled law” of the Sixth Circuit and Supreme Court. See id. at 301–302 (applying Jones and evaluating whether settled Tenth Circuit law established the legality of the conviction).
In his Section 2241 petition, Marlowe contends that the law in the Sixth Circuit at the time of his January 2006 conviction did not require a showing of but-for causation to support a conviction under the “death results” enhancement of
causation necessary to show that “bodily injury results” from a violation of
These cases cannot carry Marlowe‘s burden to show that binding precedent at the time of his conviction foreclosed an argument that the “death results” enhancement of
Moreover, in addition to interpreting a different statute, Wiegand is an unpublished opinion. At the time of Marlowe‘s trial (as now) it was “well-established law” in the Sixth Circuit “that unpublished cases are not binding precedent.” Bell v. Johnson, 308 F.3d 594, 611 (6th Cir. 2002). A nonprecedential decision interpreting a different statute cannot establish “settled law.” Cf. Ham, 994 F.3d at 693 (rejecting the argument that an “unpublished, non-precedential decision” could “demarcate a change in settled law“).
Marlowe could have raised his current objection to the causation jury instruction at trial. He has not shown that doing so “would have been futile” under binding Sixth Circuit precedent. In re Jones, 226 F.3d at 333. He therefore has not satisfied the first requirement of the Jones test for invoking the savings clause of
III.
The traditional Section 2241 habeas remedy is available to a federal prisoner only if a Section 2255 motion is “inadequate or ineffective to test the legality of his detention.”
AFFIRMED.