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Washington v. Moseley

United States District Court, D. South Carolina

August 13, 2018

Lionel James Washington, Petitioner,
v.
Bonita Moseley, Respondent.

          REPORT AND RECOMMENDATION

          KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE

         Lionel James Washington (“Petitioner”), proceeding brings this action pursuant to 28 U.S.C. § 2241 for habeas relief.[1] Petitioner is an inmate at FCI-Edgefield, a facility of the Federal Bureau of Prisons, and files this action in forma pauperis under 28 U.S.C. § 1915.

         I. Factual and Procedural Background

         On April 30, 2009, Petitioner pleaded guilty in this court to one count of unlawful possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841 (a)(1), (b)(1)(B), (b)(1)(C). United States v. Washington, No. 3:08-cr-00612-JFA-1 (D.S.C.) (“Criminal Case”). See ECF No. 72 in Criminal Case. On December 21, 2009, he was sentenced as a career offender under the sentencing guidelines to a total term of imprisonment of 188 months. ECF No. 98 in Criminal Case. Petitioner unsuccessfully appealed his conviction and sentence. His appeal ended on March 25, 2011. ECF No. 148 in Criminal Case. On December 28, 2010, Petitioner filed an initial § 2255 motion, asserting that his counsel was ineffective for failing to investigate and present mitigating information from Petitioner's family and his mental health background and for failing to challenge the incorrect base amount calculation. Petitioner also alleged that his guideline sentence was improperly calculated without consideration of the crack vs. powder cocaine sentencing rules, and asserted that he should be resentenced under the then-recently enacted Fair Sentencing Act. ECF Nos. 134, 134-1 in Criminal Case. Petitioner filed an Amended § 2255 motion on April 13, 2011, including the submission of evidence showing his troubled background, and asserting that the court improperly departed upward from the sentencing guidelines because he allegedly did not have the requisite criminal history to support the departure. ECF No. 149 in Criminal Case. On August 24, 2011, Petitioner's § 2255 motion was denied. ECF Nos. 163, 164 in Criminal Case. Petitioner filed a second § 2255 motion based on United States v. Simmons, 635 F.3d 140 (4th Cir. 2011), which was denied. ECF 167 in Criminal Case. On June 12, 2014, Petitioner filed a third § 2255 motion, asserting that he should be resentenced in light of Descamps v. United States, 570 U.S. 254 (2013) (“sentencing courts may not apply the modified categorical approach” to determine if a conviction is a “violent felony” under the Armed Career Criminal Act (“ACCA”) when the crime of conviction “has a single, indivisible set of elements”). ECF No. 176 in Criminal Case. That motion was denied as successive on April 9, 2015. ECF No. 186 in Criminal Case. Petitioner thereafter filed additional motions for reduction of sentence, citing to United States v. McLeod, 808 F.3d 972 (4th Cir. 2015) (S.C. non-violent second-degree burglary not a proper predicate offense under the ACCA), ECF No. 192 in Criminal Case; and an authorized fourth § 2255 motion under Johnson v. United States, 135 S.Ct. 2551 (2015), Welch v. United States, 136 S.Ct. 1257 (2016), and In re Hubbard, 825 F.3d 225 (4th Cir. 2016), ECF No. 206 in Criminal Case. The court denied both of those motions. ECF Nos. 193, 216, 217 in Criminal Case. The final § 2255 motion was denied on July 12, 2017. Petitioner thereafter filed the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 now under review.

         In his § 2241 Petition, Petitioner relies on United States v. McLeod, 808 F.3d 972, to assert that he was wrongfully sentenced as a career offender because the court used a prior second-degree burglary conviction as one of the predicate offenses and failed to adequately conduct a categorical approach analysis, resulting in a sentence that amounts to a fundamental defect. ECF No. 1 at 6, 11. Petitioner cites to the Fourth Circuit Court of Appeals' opinion in Wheeler v. United States, 886 F.3d 415, 428 (4th Cir. 2018), as the basis for his contention that he should be allowed to raise this sentencing-related claim under § 2241 because the § 2255 remedy is inadequate and ineffective to test the validity of his detention. ECF No. 1 at 9. Petitioner asks this court to order that his career offender designation be removed and that he receive “a normal guideline sentence . . . .” Id. at 14.

         II. Standard of Review

         Under established local procedure in this judicial district, a careful review has been made of the pro se petition filed in this case. The review was conducted pursuant to the procedural provisions of the Rules Governing Habeas Corpus Cases Under Section 2254 and the Anti-Terrorism and Effective Death Penalty Act of 1996, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979).

         This court is required to construe pro se petitions liberally. Such pro se petitions are held to a less stringent standard than those drafted by attorneys, see Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, however, the Petition submitted in this case is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

         III. Discussion

         Generally, a § 2241 habeas petition “‘attacks the execution of a sentence rather than its validity,' whereas a § 2255 motion ‘attacks the legality of detention.'” Brown v. Rivera, No. 9:08-CV-3177-PMD-BM, 2009 WL 960212, at *2 (D.S.C. April 7, 2009) (citation omitted). Here, Petitioner is attacking the validity of his sentence-the type of claim that should usually be brought under § 2255 in the sentencing court. Rice v. Rivera, 617 F.3d 802 (4th Cir. 2010). However, § 2255 contains a savings clause that permits a district court to consider a § 2241 petition challenging the validity of a petitioner's detention when a § 2255 petition is inadequate or ineffective to test the legality of his detention. Id. The savings clause provides:

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

28 U.S.C. § 2255(e). In other words, as applied here, Petitioner's § 2241 Petition is barred unless he can demonstrate that the relief available to him under § 2255 is inadequate or ineffective.

         To trigger the “savings clause” of § 2255(e) and now proceed under § 2241, Petitioner must show that something more should be considered by the court than that authorized by § 2255, such as a retroactive change in the law as contemplated in United States v. Wheeler, 886 F.3d at 428. In Wheeler, the Fourth Circuit Court of Appeals concluded that “§ 2255(e) must provide an avenue for prisoners to test the legality of their sentence pursuant to § 2241.” Wheeler, 886 F.3d at 428. The Fourth Circuit Court of Appeals announced a new savings clause test for allegedly erroneous sentences in Wheeler. Under the new test, the savings clause is satisfied if:

(1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to meet the gatekeeping provisions of § 2255(h)(2) for second or successive motions; and (4) due to this ...

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