Washington v. Hollembaek, No. 3:2014cv00498 - Document 11 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 8/20/2015. Copy mailed to Pro Se Petitioner. (jsmi, )
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Washington v. Hollembaek Doc. 11 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division MELDON IRVIN WASHINGTON, Petitioner, V. Civil Action No. 3;14CV498 WARDEN HOLLEMBAEK, Respondent. MEMORANDUM OPINION Meldon Irvin Washington, a federal inmate proceeding pro se and forma pauperis, ("§ 2241 Petition," Magistrate want Nos. of Judge filed this 28 U.S.C. ECF 1). On recommended that jurisdiction. 9-10.) No. For the Washington the reasons § 2241 petition^ March 26, action be filed that 2015, the dismissed objections. follow, for (ECF Washington's objections will be overruled and the action will be dismissed. ^ That statute provides, in pertinent part: (c) The writ of habeas corpus extend to a prisoner unless— (1) the shall not He is in custody under or by color of authority of the United States or is committed thereof; for trial before some court or (2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or (3) He is in custody in violation of the Constitution or United States .... 28 U.S.C. laws or treaties of the § 2241(c) (1)-(3) . Dockets.Justia.com I. The Magistrate Judge BACKGROUND made the following findings recommendation: A. Procedural History and Summary of Washington's Claim This Court convicted Washington of conspiracy to possess with intent to distribute fifty grams or more of crack cocaine and possession with intent to distribute fifty grams or more of sentenced him to 360 months concurrently. crack cocaine and on each count to be served See United States v. Washington, 24 F. App'x 163, 163 (4th Cir. 2001) The Fourth Circuit affirmed Washington's convictions and sentence. Id. By Memorandum Opinion and Order entered April 30, 2004, the Court § 2255 motion. denied Washington's United States v. first 28 U.S.C. Washington, No. 3:00CR287 (E.D. Va. Apr. 30, 2004). In the ensuing ten years, Washington has filed abundant challenges to his convictions and sentence. Washington's Petition again challenges his sentence. § 2241 In his § 2241 Petition, Washington contends that is unconstitutional in light of the Fourth Circuit's holding in Simmons v. United States, his sentence 649 F.3d 237 (4th Cir. 2011).^ Washington claims that ^ Washington received an enhanced sentence under 21 U.S.C. § 851. (S^ Br. Supp. § 2241 Pet. 1, ECF No. 2.) ^ In Simmons, the United States Court of Appeals for the Fourth Circuit overruled prior decisions and held that, in deciding whether to enhance federal sentences based on prior North Carolina convictions, sentence we that look North not to Carolina the maximum courts could have imposed for a hypothetical defendant who was guilty of an aggravated offense or had a prior criminal record, but rather to the maximum imposed on sentence a person that with could the have been defendant's and under Simmons his two prior felony convictions no longer qualify as felony offenses for purposes of 21 U.S.C. Court § 851. For RECOMMENDS the reasons that this WANT OF B. Motions under 28 U.S.C. set action forth below, the DISMISSED be FOR JURISDICTION. § 2255 Compared to Petitions under 28 U.S.C. § 2241 A motion made 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 a 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 (10th Cir. 1996); Hanahan 1982)). v. Luther, 693 Nevertheless, F.2d 629, 632 n.l the United States (7th Cir. 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 may proceed under § 2241 actual level history. of has stressed aggravation United States v. Powell, 2012) (emphasis omitted) that an inmate to challenge his conviction and criminal 691 F.3d 554, 556 (4th Cir. (citing Simmons, 649 F.3d at 241) . ^ "This 'inadequate and ineffective' exception is known as the by § 'savings 2255." clause' Wilson to v. [the] limitations Wilson, No. imposed I:llcv645 (TSE/TCB) , 2012 WL 1245671, at *3 (E.D. Va. Apr. 12, 2012) (quoting ^ re Jones, 226 F.3d 328, 333 (4th Cir. 2000)). "in only very limited circumstances." V. Poole, 531 F.3d 263, quotation id., marks 269 United States {4th Cir. omitted). The 2008) (internal "controlling test," 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 this circuit or the Supreme Court of 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. In re Jones, 226 F.3d (emphasis added). 328, 333-34 incarcerated source situation in which ^ for of 2000) "fundamental defect conduct that is individual not through no fault of his [or her] own, no Cir. The Fourth Circuit formulated this test to provide a remedy for the presented by a (4th redress." Id. at criminal is but, [he or she] has 333 n.3 (emphasis added). C. Analysis of Washington's 28 U.S.C. § 2241 Washington fails to satisfy the second prong of In re Jones, 226 F.3d 328, 334 (4th Cir. 2000). Specifically, Washington fails to demonstrate that "subsequent to § 2255 motion, [his] direct appeal and [his] first the substantive law changed such that [he] was convicted is deemed not to be criminal." Id. (emphasis added). The conduct of which Washington stands convicted, conspiracy to possess with the intent to distribute fifty grams or more of crack cocaine and possession with intent to the conduct of which distribute remains a fifty grams or more of crack cocaine, crime. Moreover, to the extent Washington seeks to proceed by § 2241 to challenge his enhanced sentence under 21 U.S.C. § 851, Washington fails to establish that he can utilize the savings pursue alleged sentencing clause and § errors. "Fourth 2241 to Circuit precedent has . . . not extended the reach of the savings clause to those petitioners challenging only their sentence." Poole, 531 F.3d at 267 n.7 (citing In re Jones, 226 F.3d at 333-34); Patterson v. Wilson, No. 3:12CV66, 2013 WL 101544, 2013) (citations refusal to allow challenge a at *3 (E.D. Va. omitted) ("The Fourth petitioners to utilize Jan. 8, Circuit's § 2241 to career offender designation applies with equal force to under 21 U.S.C. Cir. 2013). D. a challenge to an enhanced sentence § 851")/ aff'd, 523 F. App'x 243 (4th Conclusion Accordingly, it is RECOMMENDED that this action be DISMISSED FOR WANT OF JURISDICTION. II. STANDARD OF REVIEW FOR REPORT AND RECOMMENDATION "The magistrate [judge] makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with this court." 1993) Estrada v. Witkowski, (citing Mathews v. 816 Weber, F. Supp. 423 U.S. 408, 261, 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 objection is made." 28 U.S.C. filing of objections to a magistrate[] the district and judge to legal—that Thomas v. Arn, are 474 at U.S. focus the "The report enables attention on those issues—factual heart 140, 28 U.S.C. 636(b)(1). [judge's] 147 magistrate judge's recommendation, further evidence." § § of the (1985). parties' dispute." When reviewing the this Court "may also receive 636(b)(1). III. Washington predicate [§] WASHINGTON'S "now vividly requirement 851(A)(1)." for (Objs. OBJECTIONS states he is Actual classification 2, ECF No. Innocence under 10.) 21 of U.S.C. Washington then continues to argue that under Simmons v. United States, 649 F.3d 237 enhanced (4th Cir. sentence. (Id. . . . 2011) , he at 2-3.) is actually innocent of his He claims that Petitioner's allegations of Actual Innocence, conviction and sentence under U.S. Code of titled 21 U.S.C. [§] 851(A)(1), is not a misapplication of the United States Advisory Guidelines, but a collateral attack of conviction and sentence which inherently resulted in a complete miscarriage of justice that Petitioner has had no earlier opportunity to challenge as intervening change in substantive law negated such convictions far after Washington was convicted and sentenced in interpretation [§] (Objs. of 7.) demonstrate WL case law, Judge's that alleged argument. 2015 to be under used Washington's objections, Magistrate pursue priors 2000, erroneous under 21 U.S.C. 851(A)(1). with recitation of the November he may use the errors United States v. at offer no reason to conclusion. sentencing 4591677, although verbose and heavy *1, Surratt, *3-8 in Washington savings no find error fails to clause § to matter No. (4th and how he frames 14-6851, Cir. 2241 F.3d July 31, his , 2015) (foreclosing use of § 2241 and savings clause to raise challenge to sentence 263, 267 n.7 under Simmons); (4th Cir. 2008) United States v. Poole, (citing In re Jones, 531 F.3d 226 F.3d 328, 333-34 (4th Cir. WL 101544, cf. at 2000)); Patterson v. Wilson, No. 3:12CV66, 2013 *3 {E.D. United States v. cert. denied, innocence 135 S. Va. Jan. Jones, Ct. 8, 2013) 758 F.3d 579, 1467 (2015) {citations omitted); 587 (4th Cir. (explaining that 2014), actual jurisprudence providing exception to procedural bars "does not apply to habeas claims based on actual innocence of a sentence.") The Court has reviewed the record, Washington's objections, and the legal Recommendation, and and factual finds conclusions no error. in the Washington's Report and objections will be overruled. IV. CONCLUSION Washington's objections will be overruled. The Magistrate Judge's Report and Recommendation will be accepted and adopted. The action will be dismissed for want of jurisdiction. The Clerk is directed to send a copy of this Memorandum Opinion to Washington. I t is so ORDERED. /s/ Robert E. Payne Senior United States District Judge Richmond, Virginia Date
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