Hairston v. Wilson, No. 1:2014cv01067 - Document 5 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge T. S. Ellis, III on 6/8/2015. (rban, )
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Hairston v. Wilson Doc. 5 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division Michael Wendell Hairston, Petitioner, V. ) ) ) ) Eric D. Wilson, Warden, Respondent. ) ) ) l:14cvl067 (TSE/MSN) MEMORANDUM OPrNION Michael Wendell Hairston, a federal inmate housed in Virginia andproceeding gro se, has filed a petition for a writ of habeas corpus, pursuant to 28U.S.C. § 2241, challenging his sentence in the United States District Court forthe Western District of Virginia for possession with intent to distribute 50 grams or more of cocaine base. Petitioner has paidthe statutory filing fee for this petition. For the reasons that follow, this petitionmust be construed as a successive motion to vacate pursuant to 28 U.S.C. § 2255 anddismissed, without prejudice to petitioner's right to move a panel of the United States Court of Appeals forthe Fourth Circuit for an order authorizing the sentencing court to consider the petition. I. Background On July 20,2006, petitioner pledguilty in the Western District ofVirginia to one countof violating 21 U.S.C. § 841(a)(1), possession with intent to distribute 50 grams or more of crack cocaine base. ^ Case No. 4:06cr00018-JKL, Plea Agreement, at 1-2 [Diet. 31]. Petitioner was adjudged a career offender under Sentencing Guideline 4B1.1. Id. 3. Petitioner was adjudged a career offender due totwo Virginia convictions of Assault and Battery ona Police Officer ("ABPO"), in 1997 and 1999. Seejd Case Summary for CR9700747, CR9900545 Dockets.Justia.com [Dkt. 63-1]. On December 8,2006, petitioner was sentenced to 262 months' incarceration. See id Judg., at 2 [Dkt. 36]. Petitioner's conviction wasaffirmed bythe Fourth Circuit on April 1, 2008. United States v. Hairston. No. 07-7133 (4th Cir. Apr. 1,2008). Petitionerthen filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in the Western District of Virginia on October 28,2013. SeeCase No. 4:06cr00018, Motion to Vacate [Dkt. 63]. Petitioner argued that, in light of United States v. Carthome. 726 F.3d 503 (4thCir. 2013), decided on August 13,2013, he was erroneouslyclassified as a career offender, and that his sentence was therefore invalid. See id at 5. The petition was denied as time-barred on March 24,2014. Case No. 4:06cr000181, Mem. Op. [Dkt. 70]. Petitioner filed the instant § 2241 petition on August 21,2014, alleging the same argument as he previously made in his time-barred § 2255 motion. II. Applicable Law Because Hairston has already filed a § 2255 motion to vacate, set aside, or correct his federal sentence, this petition is petitioner's second attempt to bring a collateral attack on his conviction. Sucha challenge can be properly brought in a § 2241 petition onlyif reliefunder § 2255 "is inadequate or ineffective to test the legality of [the petitioner's] detention." 28 U.S.C. § 2255(e). This "inadequate and ineffective" requirement is known as the "savings clause" to limitations imposed by § 2255. SeeIn re Jones. 226 F.3d 328,333 (4th Cir. 2000). As the Fourth Circuit has observed, "there must exist some circumstances in which resort to § 2241 would be permissible; otherwise the savings clause itselfwould be meaningless." Id. at 333. However, the Fourth Circuit has stated that "theremedy afforded by § 2255 is notrendered inadequate orineffective merely because an individual is procedurally barred from filing a §2255 motion." In re Vial. 115 F.3d 1192,1194 n.5 (4th Cir. 1997) (intemal citations omitted). Thus, a federal inmate may only proceed under § 2241 to challenge his conviction or sentence in "very limited circumstances." United States v. Poole. 531 F.3d 263,269 (4th Cir. 2008) (internal citations and quotation marks omitted). The Fourth Circuit has developed a three-part test to determine whether a second or successive petition can be brought under § 2241: § 2255 is inadequate and ineffective to test the legality of a conviction when: (1) at the time of the 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 § 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 § 2255 because the new rule is not one of constitutional law. Jones. 226 F.3d at 333-34. The Jones court concluded that resorting to § 2241 is generally intended to cure "the... fundamental defect presented by a situation in which an individual is incarcerated for conduct that is not criminal but, through no fault of his own, has no source of redress." Id. at 333 n.3. III. Analysis In analyzing whether petitioner's claun falls under the Jones criteria, it is clear that petitioner has met prong one of the test - at the time of his conviction, his conviction and sentence were legal under established Fourth Circuit law. Petitioner's challenge is based on United Statesv. Carthome. 726 F.3d 503 (4th Cir. 2013), whichheld that a past conviction for ABPO under Virginia law is not categorically a "crime of violence" for which he could be classified as a career offender. The holding in Carthome wasbased on the U.S. Supreme Court's holding in Descamps v. United States. _ U.S. 133 S. Ct. 2256 (2013), which held that, when determining whether a past conviction could be considered a "crime of violence," a sentencing court must in all circumstances look only to the statutory elements of the charged offense, rather than the specific facts surroimding the offender's particular conviction. Carthome. 726 F.3d at 511 (citing Descamps. 133 S. Ct. at 2283-85). At the time ofpetitioner's sentencing in 2006, however, his classification as a career offender was based on settled circuit law. His conviction and sentence were therefore legal. It is also clear that petitioner meets the third prong ofthe Jones test - he is foreclosed from filing a successive § 2255 motion. To bring a successive § 2255 motion, a petitioner must meet the requirements of 28 U.S.C. § 2255(h). This "gatekeepmg" provision provides: A second or successive motion must be certified ... by a panel of the appropriate court of appeals to contain (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found liie movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. Petitioner caimot meet these gatekeeping standards, as his challenge does not involve either newlydiscovered evidence or a new rule of constitutional law. His challenge is basedon the Fourth Circuit's opinion in Carthome.rather than any new constitutional rule made retroactiveby the United States Supreme Court. The Supreme Court also did not explicitly provide that the rule announced in Descamps was retroactive to cases on collateral review. Accordingly, petitionercannot meet the provisions of § 2255(h), and therefore meets the third prong of the Jones analysis. It is also clear, however, that petitioner cannotmeetthe secondprong of the Jones test. The Fourth Circuit decided Carthome. the change in law on which petitioner relies for his current petition, before he filed his § 2255 motion. In fact, his § 2255 motion was based solely on his Carthomeargument In contrast, the Jonestest encompasses a situationin which a petitioner was legallyunableto raise a particular challenge in a § 2255 motion and, were he prevented from raising it in a § 2241 petition, wouldhave no available avenuefor relief. Because petitioner's Carthome argument was available to him at the time of his § 2255 motion, and indeed he raised it in his § 2255 motion, he is now foreclosed from proceeding underthe § 2255(e) savings clause.' Petitioner argues, however, that his current sentence violates the Due Process Clause because he is actually innocent of the sentencing enhancement. In support of his argument, he ' The sentencing court denied petitioner's §2255 motion as untimely. Petitioner explicitly argued that his motion was timely "based on a new Supreme Court decision that has been made precedent in this circuit." Case No. 4:07crl 8, Motion to Vacate, at 13. The court held, however, that petitioner's one-year time period to file motion ran from the date his conviction became final, and that neither Descamps nor Carthome triggered a later filing period. See id Mem. Op., at 2-3. Pursuantto United States v. Whiteside. 775 F.3dl80 (4th Cir. 2014) (en banc), petitionfor cert, filed. No. 14-1145 (Mar. 20,2015), this decision was clearlycorrect. In Whiteside. the Fourth Circuit held that its decision in United States v. Simmons. 649 F.3d 237 (4th Cir. 2011) (en banc)did not constitute a new "fact" sufficient to the triggerthe running of the one-year limitations periodin § 2255(f)(4), whichallows a petitioner to file a § 2255 motion within one year of "the date on which the facts supporting the claim or claims could have been discovered through the exercise of due diligence." Whiteside. 775 F.3d at 183-84. The court also found that, if Simmons constituted a new fact sufficient to proceed under § 2255(f)(4), the provisions of § 2255(f)(3), allowmg the filing of a motion withinyear ofthe announcement ofa new mle made retroactive to cases on collateral reviewby the UnitedStates Supreme Court, would be rendered superfluous. Id at 184. The courtspecifically noted that "the relevant limitations period under § 2255(f) is one year after the conviction is final, notone year from a decision that effectuates a change in circuit law." Id at 187 ("Ifwe were to adopt Whiteside's argument, whenever there is a change in circuit law ofsufficient magnitude (whatever that is), a petitioner would have a year to file afterthe change, even if many years hadpassed since the conviction became final. That simply vitiates the point of statutes of limitations in correctly points out that, in Persaud v. United States. _ U.S. _, 134 S. Ct. 1023 (2014), the Solicitor General joined the petitioner in that case in arguing that the petitioner there was entitled to relief under the savings clause of § 2241 for an erroneous recidivist sentence. In Persaud. petitioner's enhanced sentence was based on two pre-Simmons North Carolina convictions, which, under Simmons, could no longerbe classified as felony drug offenses sufficient to impose an enhancedsentence. The SolicitorGeneralspecifically arguedthat a sentenceexceedingthe statutory maximum was cognizable under the savings clause, as such a sentence constituted a "fimdamental defect." Brief for United States, at 19, Persaud. 134 S. Ct. 1023, No. 13-6435, 2013 WL 7088877 (Dec. 20,2013). The Solicitor General argued that such a sentence implicated separation-of-powers concerns and violated due process. Id at 20. This case is currently pending in the Westem District ofNorth Carolina. ^ Persaud v. United States. Case No. 3:12-cv-509-FDW. Petitioner also relies on United States v. Reese. Case No. 8:01-cr-135-JFM-l (D. Md. July 31,2014), in which the government agreed with petitioner's argument that his challenge to a sentencing enhancement based on previous state felony convictions fell within the savings clause. Sm Dkt. 132. Reese had been adjudged a career offender based on two previous Maryland convictions for second-degreeassault. In United States v. Roval. 731 F.3d 333 (4th Cir. 2013), however,the Fourth Circuit determined that these convictions no longer qualifiedas a "crime ofviolence" sufficient to enhance Reese's sentence. See, e.g.. Reese. Dkt. 128, at 1-2. Reese argued that the sentencing enhancement constituted a "fundamental error in the criminal proceedings," sufficient to allow him to proceed imder the savings clause. Reese relied primarily on the Eleventh Circuit's decision in Brvant v. Warden. FCC Cnleman. 738 F,3d 1253 general "). (11th Cir. 2014), which likened an erroneous enhanced sentence to an actual innocence claim. Reese argued that such fundamental errors were cognizable under the savings clause. See Reese. Dkt. 128, at 16-17. Reese also advanced the Solicitor General's argument made in Persaud. discussed above. Petitioner's argumentsoverlookthe fact that, in both Persaudand Reese, the petitioners fell squarely within the Jones test. Reese was convicted in 2002, and filed his first § 2255 motion in 2006. See Case No. 8:01crl35, Dkt. 56,68. At the time he filed this motion, he could not make his Roval argument. He filed a successive § 2255 motion in 2012, relying primarily on Simmons. See id Dkt. 119. After the court denied this motion, Reese filed the § 2241 petition upon which petitioner relies. Id. Dkt. 128. Similarly, Persuad was convicted in 2001, filed a grg se § 2255 motion in 2005,and then a subsequent motionmaking his present Simmons arguments. See Case No. 3:01cr36-FDW-7, Dkt. 279; Case No. 3:12cv509, Dkt. 1. At the time of Persaud's first § 2255 motion, his Sunmons challenge was unavailable to him. Accordingly, both Reese and Persaud fall within the Jones analysis. In contrast, petitioner has already filed a § 2255 motion raising an identical argument to the one raised m the instant petition. The fact that his initial § 2255 motion was untimely filed, and that he is barred from filing a successive motion, does not render§ 2255 inadequate or ineffective to test the validityof his detention. Vial. 115 F.3d at 1194 n.5. In addition, the Fourth Circuit has generally limitedthe application ofthe savings clause to situations in which a petitioner challenges the validity of his conviction, rather than his sentence. In Jones, for example, the FourthCircuitallowed the petitionerto proceedunder the savingsclause because he was incarcerated for conduct that was no longercriminal. Jones. 226 F.3d at 334. Subsequent Fourth Circuit decisions have reiterated that the savings clause is generally inappropriate to challenge a petitioner's underlying sentence. See Poole. 531 F.3d at 267 n.7 (citing Jones. 226 F.3d at 333-34) ("Fourth Circuit precedent has likewise not extended the reach ofthe savings clause to those petitioners challenging only their sentence."); see also Farrow v. Revell. 541 F. App'x 327,328 (4th Cir. 2013) (per curiam) (affirming district court's conclusion that a challenge to an armed career criminal enhancement was not cognizable under § 2241). Specifically,when a petitioner's challenge is based on the application of a sentencing guideline, his challengeis based not on factual innocence, but on a legal technicality - the manner of determining the defendant's culpability," United States v. Powell. 691 F.3d 554,558 (4th Cir. 2012) (emphasis in original) (quoting Schriro v. Summeriin. 542 U.S. 348,353 (2004)). Such a challenge is not based on conduct that is no longer criminal, but is based on a change in the underlying legal procedure. See, e^ Bovnes v. Berkebile. No. 5:10-cv-939,2012 WL 1569563,at *6 (S.D.W. Va. May 1,2012) (internal footnote omitted) ("The Fourth Circuit's specific language in Jones contemplates an instance in which a prisoner is imprisoned for an offense that is no longer a crime."). Importantly, the conduct for which petitioner was convicted - here, assaulting a police officer - is still criminal. The fact that it is no longer classified as a crime of violence justifyinga sentencing enhancement does not renderhim actually innocent of that conduct.^ Accordingly, undercurrently existing FourthCircuit controlling law, petitioner's claim falls outside the § 2255(e) savingsclause, and he may not proceedunder § 2241. Instead, the ^ Recent developments have called this bright-line rule into question. Persaud has been stayed in theWestern District of North Carolina pending theFourth Circuit's ruling in United States V. SurrattNo. 14-6851. Surratt explicitly presents the question whether a challenge to a sentence, ratherthan a conviction, can be cognizable in a § 2241 petition. The FourthCircuit heard oral argument in Surratt on January 27,2015. 8 instant petition must be construed as a successive motion for relief wider § 2255, which cannot be brought unless certified as provided in 28 U.S.C. § 2244(b)(3) by a panel of the Fourth Circuit Court of Appeals. Because no such certification has been sought or granted, this petition must be dismissed without prejudice to petitioner's ability to seek such certification fi-om the Fourth Circuit. Petitioner is advised that if such certification is granted, venue for his claim would lie in the sentencing court, the United States District Court for the Western District ofVirginia.^ IV. Conclusion For the above-state reasons, this petition must be dismissed, withoutprejudice to petitioner' ability to move a panel of the United States Court ofAppealsfor the Fourth Circuit authorizingthe sentencingcourt to considerthe petition. An appropriate judgment and Order will issue. This decision cannot be appealed withouta certificate of appealability issued by this Court or the Fourth Circuit. See28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b). Forthis Court to issue such a certificate, petitioner must make"a substantial showing ofa denial ofa constitutional right." 28 U.S.C. § 2253(c)(2). Where, as here,a court deniesa petitionon procedural groimds, a petitioner meetsthis requirement when he shows "at least, thatjurists of reason would find it debatable whether the petition states a valid claim ofthe denial of a constitutional right and that jurists of reason would find it debatable whether the district court wascorrect in its procedural ruling." Slack v. McDaniel. 529U.S. 473,484 (2000) (emphasis added). This case presents and decides only thenarrow question of whether thispetitioner. While an application for § 2241 habeas corpus relief shouldbe filed in the district where the petitioner isconfined, a motion tovacate imder §2255 must be filed with the sentencing court. See Vial, 115 F.3d at 1194. having previously ^led to obtain reliefunder §2255, can now proceed under §2241. Because reasonablejurists cannot disagree on this procedural question, petitioner has not met the standard for this Court to issue acertificate ofappealability. Accordingly, no such certificate shall issue. It is important to note that the result reached here is arrived with some reluctance, because the result - that petitioner must serve nearly 22 years in prison instead ofperhaps as few as ten years or less - seems unfair under the circumstances. Yet, existing, controlling law makes clear that unless the United States Supreme Court's decision in Descamps and the Fourth Circuit's decision in relying on Descamps. are made retroactive, petitioner has no remedy absent congressional action. Ifthese holdings were retroactive tocases on collateral review, petitioner would be entitled to file asuccessive §2255 motion in the Western District of Virginia. Accordingly, petitioner should seek authorization firom the Fourth Circuit to present this argument to the Western District ofVirginia. I Entered this day of 2015 Alexandria, Virginia T.S.EUii.m United States DistrictJudge 10
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