Westry v. Wilson, No. 3:2015cv00062 - Document 11 (E.D. Va. 2017)
Court Description: MEMORANDUM OPINION. READ OPINION for complete details. Signed by District Judge Robert E. Payne on 06/30/2017. Copy mailed to Petitioner.(ccol, )
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Westry v. Wilson Doc. 11 p p IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division E P\\ JJN] 3 0 2017 SAM WESTRY, CLERK, U.S. DiSTfiiCT COURT RICHMOND. VA Petitioner, V. Criminal No. ERIC C. 3:15CV62 WILSON, Respondent. MEMORANDUM OPINION This matter is before the Court pursuant to Petitioner Sam Westry's U.S.C. Petition § 2241 for Writ § 2241 contends that he the statutory Habeas Corpus {"§ 2241 Petition," ECF No. filed a Motion to Dismiss. In the of pursuant 1). to 28 Respondent has (ECF No. 10.) Petition, Westry, a former federal inmate, "is being detained in federal custody beyond maximum permitted for a Title 18 U.S.C. § 922(g)(1) conviction, in violation of his right to due process under the Fifth Amendment (§ 2241 Pet. 7.)^ to As relief, the United States Constitution," Westry requests that the Court "vacate the Title 18 U.S.C. § 924(e) release" him. Respondent asserts that Westry's (Id. at 9.) statutory judgment and § 2241 Petition should be dismissed "because failed to show that the Section 2255 (1) [Westry] has remedy is inadequate or ^ The Court corrects the spelling and capitalization in quotations from Westry's submissions. Dockets.Justia.com ineffective as required by Section 2255(e), Petition is moot." (Mot. reasons, Respondent's granted, and Dismiss Motion Westry's § to and 1.) (2) For because the the following (ECF No. 10) will be Petition 2241 Dismiss (ECF No. 1) will be dismissed for lack of jurisdiction. I. In 2005, firearm by the a § 922(g)(1). 2221714, at sentencing, sentence served, motion *1 (E.D. the four Subsequently, 47 of of 18 3:04CR267, of subject to 2017 Act an release." denied a See United States 28 v. enhanced with Id. WL At ("ACCA") imprisonment, a U.S.C. (citation omitted). Criminal Court possession and time (citation U.S.C. Westry, § 2255 395 F. (4th Cir. 2010). On June 22, to 28 U.S.C. Westry supervised the No. 2017) months of violation Westry, Career 18 0 years Westry in May 19, Armed to v. found filed by Westry. App'x 47, felon, Va. Court Westry omitted). convicted United States "the and Court convicted under sentenced PROCEDURAL HISTORY 2 016, § 2255 ("§ 2255 Motion") 2017 WL 2221714, at *1 United States Court Westry filed a successive motion pursuant with this Court. (citation omitted). of Appeals authorization for Westry to file for the Westry, On July 7, 2016, Fourth Circuit the granted his successive § 2255 Motion. Id. (citation that, omitted) . "in light (2015),[^] he of In his § 2255 Motion, Johnson v. improperly was United States, sentenced Westry 135 as an S. argued Ct. Armed 2551 Career Criminal because his convictions for Virginia burglary no longer qualify as predicate 'violent felonies' enumerated, or residual clauses." Id. under the ACCA's force, (citation omitted). By Memorandum Opinion and Order entered on May 19, 2017,^ the Court Westry's have at granted "convictions rested *2. Westry's on The the Court release. at 120 residual time *3. months Motion, served, Because sentence, of sentence Westry the A motion made pursuant primary means of Johnson, to 28 collateral the to had Court already ordered at of supervised served that the he be U.S.C. attack" Supreme on and such a Court § 2255 the "provides the imposition of a motion must be filed held that the residual Johnson, 135 S. 2557. ^ As Westry, months Id. clause of the ACCA is unconstitutionally vague. Ct. 120 Id. ANALYSIS federal conviction and sentence, ^ In that the ACCA." and three years of immediately released from home confinement. II. concluding statutory burglary may clause reduced Westry's with reduced 2255 burglary and now-void incarceration, Id. for § of May 17, 2017 WL 2221714, 2017, at *1. Westry was on home confinement. with the sentencing court. 451 {5th Cir. F.2d 1111, 2000) 1113 (quoting Cox v. (5th proceed under 28 See Pack v. Cir. U.S.C. Warden, 1990)). § A § 2255 (e).'* the he 632 n.l of n.5 166 (4th Ctr., inmate 911 may not she demonstrates "is inadequate or legality of his detention." 28 U.S.C. for afforded ineffective Cir. 1997) (citing In re Vial, 115 F.3d Bradshaw v. (10th Cir. 1996); Hanahan v. Luther, (7th Cir. Appeals remedy F.3d 44 8, "For example, attacks on the execution of a sentence 1194 F.3d 164, or § 2255 are properly raised in a § 2241 petition." 1192, 218 Fed. Pet. federal 2241 unless that the remedy afforded by 28 U.S.C. ineffective to test Yusuff, 1982)). the Fourth by merely Nevertheless, § Circuit 2255 because is an Story, 86 693 F.2d 629, the United States Court has not emphasized rendered individual has that "the inadequate been unable or 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." the 333 Poole, 531 F.3d 263, 269 {4th ^ "This 'inadequate and ineffective' exception is known as 'savings clause' to [the] limitations imposed by § 2255." Wilson V. *3 United States v. Wilson, No. (E.D. Va. Apr. 12, (4th Cir. I:llcv645 2012) (TSE/TCB) , (quoting ^ 2000)). 4 2012 WL 1245671, re Jones, at 226 F.3d 328, Cir. 2008) test," (internal quotation marks omitted). id., The "controlling 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 cann^ satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law. In re Jones, added). 226 F.3d 328, 333-34 {4th Cir. 2000) (emphasis The Fourth Circuit formulated this test to provide a remedy for the "fundamental defect presented by a situation in which an individual criminal but, is incarcerated through no fault of his has no source of redress." Here, afforded Westry by 28 clearly U.S.C. § successive § 2255 Motion. 2017, conduct [or her] cannot 2255 demonstrate is Westry, inadequate released not [he or she] that or the from home remedy ineffective. 2017 WL 2221714, at *1. the Court granted Westry's § 2255 Motion, immediately is Fourth Circuit to file his sentence to 120 months of incarceration, be own, that Id. at 333 n.3 (emphasis added). Westry received permission from the May 19, for his On reduced and ordered that he confinement. Id. at *3. Because Westry received the relief he now seeks by pursuing a successful § 2255 Motion, he fails to satisfy ^ re Jones, and the Court lacks jurisdiction to consider his § 2241 Petition. III. CONCLUSION For the foregoing reasons. (ECF No. No. 1) 10) and will be granted. the action Respondent's Motion to Dismiss Westry's § 2241 Petition will be to dismissed send a for want (ECF of jurisdiction. The Clerk is directed copy of the Memorandum Opinion to Westry and counsel of record. I t i s so ORDERED. /s/ Robert E. Payne Senior United States District Judge Date: Richmond/, Virginia
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