Winfield v. Wilson, No. 3:2014cv00172 - Document 15 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. See Opinion for details. Signed by District Judge Robert E. Payne on 03/02/2015. (ccol, )
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Winfield v. Wilson Doc. 15 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA MAR - 3 2015 Richmond Division 1^7 «iVc3i/ TTs DISTRiCT COURl ROBERT LEE WINFIELD, JR, rIchmONDJ^ Petitioner, V. Civil Action No. ERIC D. 3:14CV172 WILSON, Respondent. MEMORANDUM OPINION Robert se, Lee a federal inmate proceeding pro filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. 2014, § 2241 ("§ 2241 Petition," ECF No. 1). On December 2, the Magistrate Judge issued a Report and Recommendation recommending that jurisdiction. 13.) Winfield Jr., the Court dismiss the action for Winfield has filed five objections. For the reasons that follow, want of (ECF No. Winfield's objections will be overruled and the action will be dismissed. I. The Magistrate Judge BACKGROUND made the following findings and recommendations: A. Procedural History and Summary of Winfield's Claims After a jury trial, the Court convicted Winfield of "participation in a continuing criminal enterprise, murder and attempted murder during the course of the continuing criminal enterprise, conspiracy to distribute cocaine base, and other offenses related to Dockets.Justia.com the use of firearms and cocaine base trafficking," and the Court sentenced Winfield to life in prison with consecutive terms imposed for the firearms convictions. United States v. Williams, Nos. 96-4648, 96-4649, 96-4650, *1 Cir. (4th 96-4651, March 5, criminal enterprise count 96-4652, 1998) , 1998 WL 120116, For the at continuing (hereinafter "CCE") under 21 U.S.C. § 848(a) and (c) charged in Count Two^, the jury unanimously found that the three predicate felony counts were: (1) one count of conspiracy to distribute ^ The statute reads, in relevant part: (a) Penalties . . . Any person who engages in a continuing criminal enterprise shall be sentenced to a term of imprisonment which may not be less than 20 years and which may be up to life imprisonment . . . . (c) "Continuing criminal enterprise" defined For purposes of subsection (a) of this section, a person is engaged in a continuing criminal enterprise if— (1) he violates any provision of this subchapter . . a felony, and . the punishment for which is (2) such violation is a part of a continuing series of violations of this subchapter . . . — (A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and (B) from which such person obtains substantial income or resources. 21 U.S.C. § 848. Several portions of the statute not relevant here, § 848(g), (q) , and (r) , were subsequently repealed in 2006. See 21 U.S.C. § 848 (2006) . Moreover, for a CCE, a "series of violations" has been interpreted to mean three. See Richardson v. United States, 526 U.S. 813, 818 (1999). and possession with more of a mixture base, intent to distribute 50 grams or or substance containing cocaine in violation of 21 U.S.C. § 846 {Count One); (2) one count of possession with intent to distribute five grams or more of a mixture or substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b) (Count Thirteen); and, (3) one count of possession with intent to distribute approximately 109.7 grams of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b) and 18 U.S.C. § 2 (Count Fourteen). Indictment at 13, United States v. Winfield, No. 2:95CR193 (E.D. Va. filed Dec. 14, 1995); Judgment States v. in a Winfield, Criminal No. Case 2:95CR193 at 1-3, (E.D. Va. United Aug. 14, 1996) . On March 17, 2000, the Court denied a vacate pursuant to 28 U.S.C. motion to § 2255 filed by Winfield. United States v. Winfield, No. 2:95CR193, 2000 WL 34342565, at *6 (E.D. Va. Mar. 17, 2000) . Since that time, Winfield has inundated the Court with approximately twenty challenges to his conviction and sentence. In his § 2241 Petition, CCE conviction and contends (1) it Winfield that: at the time of Winfield's CCE was settled possession in with marihuana was a the challenges this conviction Circuit intent to that distribute felony offense and could be used as a predicate felony drug violation to convict for engaging in CCE; (2) subsequent to Winfield's direct appeal and first § 2255 motion, the substantive law changed in Moncrieffe (2013)] [v. Holder, 133 S. (that possession with the distribute a small amount of Ct. 1678 intent to marihuana is not a felony) , that the CCE conviction can no longer stand because Winfield do[es] not have three . . . predicate felony drug violations as requires for Winfield filed the a to 21 U.S.C. CCE the § 848(c) statute conviction; . . . Court and a § (3) 2255 motion because he is Innocent of engaging in a CCE, but his § 2255 motion was dismissed for lack of jurisdiction . . , , and Winfield filed to the . . . Fourth Circuit his for permission successive § {Mem. Supp. below, it DISMISSED B. § is to file a second or 2255 motion but i t was denied. 2241 Pet. RECOMMENDED FOR WANT OF 2.) For that the reasons § 2241 set forth Petition be JURISDICTION. Motions under 2 8 U.S.C. § 2255 Compared to Petitions under 28 U.S.C. § 2241 A motion pursuant to 28 U.S.C. § 2255 '"provides the primary means of collateral attack'" on the imposition of a federal conviction and sentence, and such motion must be filed with the sentencing court. See Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (quoting Cox v. Warden, Fed. Det. Ctr. , 911 F.2d 1111, 1113 (5th Cir. 1990)). A federal inmate may not proceed under 28 U.S.C. § 2241 unless he or she demonstrates that the remedy afforded by 28 U.S.C. § 2255 "is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e).^ "For example, attacks on the execution of a sentence are properly raised in a § 2241 petition." In re Vial, 115 F.3d 1192, 1194 n.5 {4th Cir. 1997) (citing Bradshaw v. Story, 86 F.3d 164, 166 (lOth Cir. 1996); Hanahan v. Luther, 693 F.2d 629, 632 n.l (7th Cir. 1982)). Nevertheless, the United States Court of Appeals for the Fourth Circuit has emphasized that "the 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. (citations omitted). The Fourth Circuit has stressed that an inmate may proceed under § 2241 to challenge his conviction "in only very limited circumstances." United States V. Poole, omitted) ^ "This 531 F.3d 263, (internal 269 (4th Cir. quotation 'inadequate and marks 2008) (citation omitted). ineffective' exception The is known as the 'savings clause' to [the] limitations imposed by § 2255." Wilson v. Wilson, No. I:llcv645 (TSE/TCB) , 2012 WL 1245671, at *3 (E.D. Va. Apr. 12, 2012) (quoting In re Jones, 226 F.3d 328, 333 (4th Cir. 2000)) . "controlling test," id., in the Fourth Circuit is as follows: [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 § 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 provisions of § satisfy the gatekeeping 2255 because the new rule is not one of constitutional law. In re Jones, 226 F.3d at 333-34 (emphasis added). The Fourth Circuit formulated this test to provide a remedy for the "fundamental defect presented by a situation in which an individual conduct that is not criminal but, his [or redress." C. her] own, [he or Id. at 333 n.3 she] is has Winfield fails Jones. See for no source of (emphasis added). Analysis of Winfield's 28 U.S.C. re incarcerated through no fault of S 2241 Petition to satisfy the second prong of In In re Jones, 226 F.3d at 334. Specifically, Winfield fails to demonstrate that "subsequent to [his] direct appeal and [his] first § 2255 motion, the substantive law changed such that the conduct of which [he] was convicted is deemed not to be criminal." Id. (emphasis added). The conduct of which Winfield stands convicted, inter alia, felony possession with intent to distribute 109.7 grams of marijuana and participating in a CCE, is still criminal. Winfield incorrectly argues that Moncrieffe held that "possession with the intent to distribute a amount 2241 of Pet. marihuana is not 2) ; he contends thus, a felony" that (Mem. he small Supp. lacks § three predicate felonies for his CCE conviction. Contrary to Winfield's assertion, Moncrieffe provides him no relief. a In Moncrieffe, the Supreme Court examined whether noncitizen's prior Georgia state conviction for possession of 1.3 grams of marijuana with the intent to distribute constituted an aggravated felony under the Immigration and Nationality Act ("INA"). 133 S. Ct. at 1683. The Supreme Court explained that the INA classifies "illicit drug trafficking offenses" as "aggravated felonies," category include[d] a extends to the and examined "whether state criminal statute social sharing of a small this that amount of marijuana." ^ at 1682. In holding that "it [did] not," id., the Supreme Court explained: "If a noncitizen's conviction for a marijuana distribution offense fails to establish that the either remuneration or more than a itiai^ijuana, the conviction felony under the INA." is not offense involved small amount of for an aggravated Id. at 1693-94. The Court fails to discern how Moncrieffe applies to Winfield's conviction of felony possession with intent to distribute marijuana. Unlike the petitioner in Moncrieffe, jury the convicted punishment federal Winfield for statute clearly Winfield's under which the prescribed felony See U.S.C. conduct. 21 841(b)(1)(D). Although the Controlled Substances Act also contains a misdemeanor marijuana distribution offense, ^ 21 U.S.C. § 841(b)(4), that offense involves "distributing a small amount of marihuana for no remuneration." mitigating Id. exception" Section to § 841(b)(4) "is 841(b)(1)(D) that defendant must prove for sentencing purposes. a a United States V. Hamlin, 319 F.3d 666, 670-71 (4th Cir. 2003) (holding that 21 U.S.C. § 841(b)(1)(D) "is the 'baseline' provision" and the "default" for federal possession charges); with see intent to United States v. 1270 (10th Cir. that his 2008). conviction distribute Eddy, 523 marijuana F.3d 1268, Winfield fails to demonstrate possession intent of with distribute 109.7 grams of marijuana qualifies small was "for no 669-70 not amount a of marihuana" remuneration." (holding or but by his amount default as "a distribution See Hamlin, "indeterminate misdemeanor, that to of 319 F.3d at marijuana" qualifies as a felony) ^ Moreover, the argument that the marijuana distribution count should have been classified as a misdemeanor was available to Winfield at the time of his trial and sentencing. Instead, a jury both found Winfield guilty of Count Fourteen, the substantive count of felony possession with intent to distribute 109.7 grams of marijuana, and also determined that Count Fourteen was an appropriate predicate felony for Count Two, his CCE conviction. The Court then entered judgment against Winfield for felony possession with intent to distribute 109.7 grams of marijuana, an offense that was punishable and was punished by a five-year term of imprisonment. 21 U.S.C. § 841(b)(1)(D); Indictment at 25, United States v. Winfield, No. 2:95CR193 Judgment in a (E.D. Va. filed Dec. 14, 1995); Criminal Case at 1-3, United States v. Winfield, No. 2:95CR193 (E.D. Va. Aug. 14, 1996). Winfield fails to demonstrate that the law has changed such that his marijuana conviction is no longer a felony or fails to qualify as a predicate felony for his CCE conviction. Thus, Winfield fails to demonstrate that Moncrieffe entitles him to relief. Accordingly, U.S.C. § 2241 it is RECOMMENDED that Winfield's 28 Petition be DISMISSED FOR WANT OF JURISDICTION. (Report and Recommendation entered Dec. 2, 2014 (alterations in original)). II. STANDARD OF REVIEW FOR REPORT AND RECOMMENDATION "The magistrate makes only a The recommendation has responsibility to make a court." 1993) Estrada v. no presumptive final Witkowski, (citing Mathews v. recommendation to this court. Weber, weight, and the determination remains with this 816 423 F. Supp. U.S. 261, 408, 410 270-71 (D.S.C. (1976)). This Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which filing of objection is objections made." to a 28 U.S.C. magistrate's § 636(b)(1). report enables "The the district judge to focus attention on those issues—factual legal—that are at the heart of the parties' dispute." Arn, 474 U.S. 140, 147 (1985). recommendation, 28 U.S.C. this Court and Thomas v. When reviewing the magistrate's "may also receive further evidence." § 636(b) (1) . III. WINFIELD'S OBJECTIONS Winfield has filed five objections. The Court can quickly dispense with each because none of Winfield's objections address the Magistrate Judge's conclusion that Winfield fails to satisfy In re Jones, 226 F.3d 328, 333 (4th Cir. 2000), and therefore, the Court lacks jurisdiction to entertain his § 2241 Petition. Initially, Winfield objects "Magistrate Judge's Report that he was sentenced to 60 months on Count 14." (Obj. 3 (capitalization corrected).) to the Winfield claims: When Winfield appeared before the district court on July 29, 1996, for sentencing on thirteen counts of convictions arising out of his indictment. During the hearing, at which Winfield was present, court imposed sentences on Counts 1-5, the district 7 and Count 11. The district court failed to impose any sentences on the remaining 14... Rule 43 the judgment sentences and 14), 6, 8, 9, 12, 13, and Count . Later, written Counts on the district of court conviction, remaining issued erroneously counts (6, outside Winfield's presence, of the (Objs. 3-4 highly prejudiced" Federal Rules of by the Court's 8 8, 9, [sic] imposing 12, 13, in violation of Criminal (capitalization corrected).) it's Procedure. Winfield claims he "was actions. (Objs. 5.) The Court fails the to discern how this objection has any relevance to Court's conclusion entertain his § Next, § 2241 that the Court Winfield repeats Petition. the corpus," § 2241 any Winfield issue sentence Ct. 2255 'savings and then, added).) S. "§ jurisdiction arguments argues previously raised that clause' § the Magistrate in his Judge 2241 when he filed i t pursuant to § 2241 habeas "In re Jones is not applicable to Winfield's because Winfield was ... is invalid not and sentenced on Count void." (Obj. Winfield then reargues that Moncrieffe v. 1678 to 2241 Petition. improperly construed his petition as a under lacks (2013) requires a marijuana is no longer a 6 14 and (emphasis Holder, 133 conclusion that his conviction for felony, but a misdemeanor. (Obj. 7-8.) None of Winfield's objections persuasively alter the Magistrate Judge's conclusion that Winfield fails to satisfy the second prong of In re Jones. As explained demonstrate first that by of criminal." which Id. Magistrate "subsequent § 2255 motion, conduct the at to Judge, [his] Winfield direct appeal fails and [his] the substantive law changed such that [he] 334. was convicted Winfield fails is to deemed not demonstrate to the to be that the law has changed such that his marijuana conviction is no longer a felony or fails to serve as a predicate felony for Winfield's CCE conviction. Accordingly, Winfield's Objections will be overruled. The Report and Recommendation will be accepted and adopted. The Motion to Dismiss (ECF No. 6) will be claims and the action will be dismissed. granted. Winf ield's The Court will deny a certificate of appealability. An appropriate Final Order will accompany this Memorandum Opinion. hj . Date; mWM 1 ^ /j" Robert E. Payne /s/ pP Senior United States District Judge Richmond, Virginia 10
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