Wright v. United States of America

Filing 2

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 8/4/16. (ca2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
VICTOR W. WRIGHT, #39225-037

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Petitioner,
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Civil Action No. DKC-14-3035
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(Criminal Action No. DKC-06-0038)
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UNITED STATES OF AMERICA
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Respondent
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MEMORANDUM OPINION
Pending is Victor Wardell Wright’s Emergency Motion to Correct Sentence under 28
U.S.C. § 2241, challenging his sentence in light of Descamps v. United States, 133 S. Ct. 2276
(2013), and United States v. Royal, 731 F.3d 333 (4th Cir. 2013). ECF No. 118. Wright filed
this motion pursuant to 28 U.S.C. § 2241 after his Application for Leave to File a Successive
Motion under 28 U.S.C. § 2255 was denied by the United States Court of Appeals for the Fourth
Circuit. Id; see also ECF Nos. 116, 117. The government moves to place its response under seal
(ECF Nos. 123, 124), and the court will grant the Motion to Seal for good cause shown. Wright
also filed a self-styled “Motion in Limine” to which the government has filed an opposition and
Wright filed a reply. ECF Nos. 125, 126, 128.
A hearing is unnecessary to resolve the issues. See Local Rule 105.6 (D. Md. 2016). For
reasons to follow, the Motion to Correct Sentence under 28 U.S.C. § 2241 will be denied.
Wright’s “Motion in Limine” will be dismissed without prejudice for lack of jurisdiction.
BACKGROUND
A jury found Wright guilty of being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g), and he was sentenced on October 16, 2006 to 235 months of imprisonment
followed by five years of supervised release. See United States v. Wright, Case No. DKC-06-

0038 (D. Md.). Wright was eligible for a sentence of imprisonment above the ten-year statutory
maximum for violating 18 U.S.C. §922(g) because he had at least three prior convictions for
violent felonies or serious drug offenses that qualified him for enhanced sentencing under the
Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).
Wright is challenging his sentence on the ground that one of the offenses upon which his
sentence was enhanced under the ACCA, a conviction for Assault with Intent to Prevent Lawful
Apprehension under Maryland law, no longer qualifies as a violent felony within the meaning of
the ACCA in light of Descamps and Royal.
Wright, who is presently incarcerated at the Federal Correctional Institution Gilmer in
Glenville, West Virginia,1 was housed at a federal facility in Lexington, Kentucky at the time he
filed the instant Motion. The government has waived objection to the requirement under 28
U.S.C. §2241(a), that Wright file his §2241 Motion in the district of his confinement. See Kanai
v. McHugh, 638 F.3d 251, 257-58 (4th Cir. 2011) (stating challenges to habeas proceedings
based on this language in § 2241(a) may be waived).
DISCUSSION
Wright’s application to raise his claims in a second or successive 28 U.S.C. § 2255 was
denied by the United States Court of Appeals for the Fourth Circuit. ECF No. 118 at 5, ECF No.
117. Wright may not collaterally attack his sentence in a § 2241 petition unless the remedy
available is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e);
In re Jones, 226 F.3d 328, 33344 (4th Cir. 2000) (holding § 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
1

See https://www.bop.gov/inmateloc/.

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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.”). This provision, often referred to as the “savings clause,” does not trigger “merely ...
because an individual is procedurally barred from filing a Section 2255 motion[.]” In re Vial,
115 F.3d 1192, 1194 (4th Cir. 1997). A petitioner bears the burden of demonstrating that the
§ 2255 remedy is inadequate or ineffective. Hood v. United States, 13 F.App'x 72 (4th Cir.
2001).
The government asserts Wright cannot satisfy the second element of the Jones analysis
because Wright had three prior serious drug convictions in addition to his Maryland assault
conviction. Specifically, Wright’s Presentence Report reflects three prior convictions for serious
drug offenses: two Maryland convictions for Distribution of CDS (Cocaine) and one D.C.
conviction for Attempted Possession with Intent to Distribute (Cocaine). These convictions
support Wright’s sentencing enhancement as an Armed Career Criminal.
In his “Motion in Limine” Wright objects to using his prior convictions and argues that
the government and the court failed to apply properly the “modified categorical approach” to
determine whether his prior Maryland assault conviction constituted a qualifying predicate
offense under the ACCA. Wright asserts this purported error compels the court to ignore the
other convictions on his criminal record and find he was unlawfully sentenced. The time for
Wright to challenge his predicate convictions has long passed. Except in limited circumstances,
not argued here, a defendant must raise all objections to predicate offenses at sentencing,
“irrespective of whether a successful challenge would render a sentencing enhancement
obsolete.” United States v. Pettiford, 612 F.3d 270, 282 (4th Cir. 2010). Wright does not meet
his burden on collateral review to prove that his sentence was improperly enhanced. See, e.g.,

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Pettiford, 612 F.3d at 277. Wright filed no written objections to his Presentence Report or
objected at sentencing to the prior convictions identified in his Presentence Report. Further, he
advances no argument that his prior D.C. and Maryland drug convictions fail to qualify as
predicate offenses under the ACCA.
In addition, Wright’s “Motion in Limine” is procedurally deficient as it represents an
attempt to file a second or successive challenge to his sentence under 28 U.S.C. § 2255, without
the requisite prefiling authorization from the court of appeals. See 28 U.S.C §2255(h); 28 U.S.C.
§ 2244; see also Castro v. United States, 40 U.S. 375, 381 (2003) (motion filed by a selfrepresented litigant to create better correspondence between the subject of the motion and its
underlying legal basis); Calderon v. Thompson, 523 U.S. 538, 554 (1998) (subject matter of a
motion, not the caption assigned to it by a self-represented petitioner determines status).
Wright’s Maryland assault conviction aside, Wright still has at least three convictions
which qualify him as an Armed Career Criminal. Consequently, the conduct for which he was
convicted remains a crime and he has the necessary qualifying predicate convictions to premise
his enhanced sentence under the ACCA. As a procedural matter, he may not use the “safety
valve” to attack the validity of his sentence under 28 U.S.C. § 2241. As a substantive matter, his
claim is without merit.
CONCLUSION
Wright fails to demonstrate he is entitled to review and relief under 28 U.S.C. § 2241,
and his Emergency Motion to Correct Sentence under 28 U.S.C. § 2241 will be denied and
dismissed with prejudice. Wright’s “Motion in Limine,” construed as a Motion to Vacate, SetAside or Correct Sentence under 28 U.S.C. § 2255 will be dismissed without prejudice because
he provides no evidence he has obtained the pre-filing authorization for a second or successive

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motion. The court declines to issue a Certificate of Appealability as to each motion because
Wright has not made a substantial showing of a denial of a constitutional right. See 28 U.S.C.
§ 2253(c)(2); Miller–El v. Cockrell, 537 U.S. 322, 336–38 (2003); Slack v. McDaniel, 529 U.S.
473, 484–85 (2000). A separate order follows.

August 4, 2016

___________/s/______________
DEBORAH K. CHASANOW
United States District Judge

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