Hairston v. Wilson

Filing 5

MEMORANDUM OPINION. Signed by District Judge T. S. Ellis, III on 6/8/2015. (rban, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

Michael Wendell Hairston,
Petitioner,

V.

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)
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Eric D. Wilson, Warden,
Respondent.

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l:14cvl067 (TSE/MSN)

MEMORANDUM OPrNION

Michael Wendell Hairston, a federal inmate housed in Virginia andproceeding gro se,

has filed a petition for a writ of habeas corpus, pursuant to 28U.S.C. § 2241, challenging his
sentence in the United States District Court forthe Western District of Virginia for possession
with intent to distribute 50 grams or more of cocaine base. Petitioner has paidthe statutory
filing fee for this petition. For the reasons that follow, this petitionmust be construed as a

successive motion to vacate pursuant to 28 U.S.C. § 2255 anddismissed, without prejudice to
petitioner's right to move a panel of the United States Court of Appeals forthe Fourth Circuit for
an order authorizing the sentencing court to consider the petition.
I. Background

On July 20,2006, petitioner pledguilty in the Western District ofVirginia to one countof

violating 21 U.S.C. § 841(a)(1), possession with intent to distribute 50 grams or more of crack

cocaine base. ^

Case No. 4:06cr00018-JKL, Plea Agreement, at 1-2 [Diet. 31]. Petitioner

was adjudged a career offender under Sentencing Guideline 4B1.1. Id. 3. Petitioner was

adjudged a career offender due totwo Virginia convictions of Assault and Battery ona Police
Officer ("ABPO"), in 1997 and 1999. Seejd Case Summary for CR9700747, CR9900545

[Dkt. 63-1]. On December 8,2006, petitioner was sentenced to 262 months' incarceration. See

id Judg., at 2 [Dkt. 36]. Petitioner's conviction wasaffirmed bythe Fourth Circuit on April 1,
2008. United States v. Hairston. No. 07-7133 (4th Cir. Apr. 1,2008). Petitionerthen filed a
motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in the Western

District of Virginia on October 28,2013. SeeCase No. 4:06cr00018, Motion to Vacate [Dkt.

63]. Petitioner argued that, in light of United States v. Carthome. 726 F.3d 503 (4thCir. 2013),
decided on August 13,2013, he was erroneouslyclassified as a career offender, and that his
sentence was therefore invalid. See id at 5. The petition was denied as time-barred on March
24,2014. Case No. 4:06cr000181, Mem. Op. [Dkt. 70].

Petitioner filed the instant § 2241 petition on August 21,2014, alleging the same
argument as he previously made in his time-barred § 2255 motion.
II. Applicable Law

Because Hairston has already filed a § 2255 motion to vacate, set aside, or correct his

federal sentence, this petition is petitioner's second attempt to bring a collateral attack on his
conviction. Sucha challenge can be properly brought in a § 2241 petition onlyif reliefunder
§ 2255 "is inadequate or ineffective to test the legality of [the petitioner's] detention." 28

U.S.C. § 2255(e). This "inadequate and ineffective" requirement is known as the "savings

clause" to limitations imposed by § 2255. SeeIn re Jones. 226 F.3d 328,333 (4th Cir. 2000).
As the Fourth Circuit has observed, "there must exist some circumstances in which resort to

§ 2241 would be permissible; otherwise the savings clause itselfwould be meaningless." Id. at
333. However, the Fourth Circuit has stated that "theremedy afforded by § 2255 is notrendered

inadequate orineffective merely because an individual is procedurally barred from filing a
§2255 motion." In re Vial. 115 F.3d 1192,1194 n.5 (4th Cir. 1997) (intemal citations omitted).

Thus, a federal inmate may only proceed under § 2241 to challenge his conviction or
sentence in "very limited circumstances." United States v. Poole. 531 F.3d 263,269 (4th Cir.
2008) (internal citations and quotation marks omitted). The Fourth Circuit has developed a
three-part test to determine whether a second or successive petition can be brought under § 2241:
§ 2255 is inadequate and ineffective to test the legality of a conviction when: (1)

at the time of the 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 satisfy the gatekeeping provisions of § 2255 because the new rule
is not one of constitutional law.

Jones. 226 F.3d at 333-34. The Jones court concluded that resorting to § 2241 is generally
intended to cure "the... fundamental defect presented by a situation in which an individual is

incarcerated for conduct that is not criminal but, through no fault of his own, has no source of
redress."

Id. at 333 n.3.

III. Analysis
In analyzing whether petitioner's claun falls under the Jones criteria, it is clear that

petitioner has met prong one of the test - at the time of his conviction, his conviction and

sentence were legal under established Fourth Circuit law. Petitioner's challenge is based on

United Statesv. Carthome. 726 F.3d 503 (4th Cir. 2013), whichheld that a past conviction for
ABPO under Virginia law is not categorically a "crime of violence" for which he could be

classified as a career offender. The holding in Carthome wasbased on the U.S. Supreme

Court's holding in Descamps v. United States. _ U.S.

133 S. Ct. 2256 (2013), which held that,

when determining whether a past conviction could be considered a "crime of violence," a
sentencing court must in all circumstances look only to the statutory elements of the charged
offense, rather than the specific facts surroimding the offender's particular conviction.

Carthome. 726 F.3d at 511 (citing Descamps. 133 S. Ct. at 2283-85). At the time ofpetitioner's
sentencing in 2006, however, his classification as a career offender was based on settled circuit
law. His conviction and sentence were therefore legal.

It is also clear that petitioner meets the third prong ofthe Jones test - he is foreclosed

from filing a successive § 2255 motion. To bring a successive § 2255 motion, a petitioner must
meet the requirements of 28 U.S.C. § 2255(h). This "gatekeepmg" provision provides:
A second or successive motion must be certified ... by a panel of the appropriate
court of appeals to contain (1) newly discovered evidence that, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found liie movant guilty of the
offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.

Petitioner caimot meet these gatekeeping standards, as his challenge does not involve either

newlydiscovered evidence or a new rule of constitutional law. His challenge is basedon the
Fourth Circuit's opinion in Carthome.rather than any new constitutional rule made retroactiveby
the United States Supreme Court. The Supreme Court also did not explicitly provide that the
rule announced in Descamps was retroactive to cases on collateral review. Accordingly,

petitionercannot meet the provisions of § 2255(h), and therefore meets the third prong of the
Jones analysis.

It is also clear, however, that petitioner cannotmeetthe secondprong of the Jones test.
The Fourth Circuit decided Carthome. the change in law on which petitioner relies for his current

petition, before he filed his § 2255 motion. In fact, his § 2255 motion was based solely on his

Carthomeargument In contrast, the Jonestest encompasses a situationin which a petitioner
was legallyunableto raise a particular challenge in a § 2255 motion and, were he prevented from
raising it in a § 2241 petition, wouldhave no available avenuefor relief. Because petitioner's
Carthome argument was available to him at the time of his § 2255 motion, and indeed he raised

it in his § 2255 motion, he is now foreclosed from proceeding underthe § 2255(e) savings
clause.'
Petitioner argues, however, that his current sentence violates the Due Process Clause

because he is actually innocent of the sentencing enhancement. In support of his argument, he

' The sentencing court denied petitioner's §2255 motion as untimely. Petitioner explicitly
argued that his motion was timely "based on a new Supreme Court decision that has been made
precedent in this circuit." Case No. 4:07crl 8, Motion to Vacate, at 13. The court held,
however, that petitioner's one-year time period to file motion ran from the date his conviction

became final, and that neither Descamps nor Carthome triggered a later filing period. See id
Mem. Op., at 2-3. Pursuantto United States v. Whiteside. 775 F.3dl80 (4th Cir. 2014) (en
banc), petitionfor cert, filed. No. 14-1145 (Mar. 20,2015), this decision was clearlycorrect. In
Whiteside. the Fourth Circuit held that its decision in United States v. Simmons. 649 F.3d 237

(4th Cir. 2011) (en banc)did not constitute a new "fact" sufficient to the triggerthe running of
the one-year limitations periodin § 2255(f)(4), whichallows a petitioner to file a § 2255 motion
within one year of "the date on which the facts supporting the claim or claims could have been
discovered through the exercise of due diligence." Whiteside. 775 F.3d at 183-84. The court

also found that, if Simmons constituted a new fact sufficient to proceed under § 2255(f)(4), the
provisions of § 2255(f)(3), allowmg the filing of a motion withinyear ofthe announcement ofa
new mle made retroactive to cases on collateral reviewby the UnitedStates Supreme Court,
would be rendered superfluous. Id at 184. The courtspecifically noted that "the relevant

limitations period under § 2255(f) is one year after the conviction is final, notone year from a
decision that effectuates a change in circuit law." Id at 187 ("Ifwe were to adopt Whiteside's
argument, whenever there is a change in circuit law ofsufficient magnitude (whatever that is), a
petitioner would have a year to file afterthe change, even if many years hadpassed since the
conviction became final. That simply vitiates the point of statutes of limitations in

correctly points out that, in Persaud v. United States. _ U.S. _, 134 S. Ct. 1023 (2014), the
Solicitor General joined the petitioner in that case in arguing that the petitioner there was entitled
to relief under the savings clause of § 2241 for an erroneous recidivist sentence. In Persaud.
petitioner's enhanced sentence was based on two pre-Simmons North Carolina convictions,

which, under Simmons, could no longerbe classified as felony drug offenses sufficient to impose
an enhancedsentence. The SolicitorGeneralspecifically arguedthat a sentenceexceedingthe
statutory maximum was cognizable under the savings clause, as such a sentence constituted a
"fimdamental defect." Brief for United States, at 19, Persaud. 134 S. Ct. 1023, No. 13-6435,

2013 WL 7088877 (Dec. 20,2013). The Solicitor General argued that such a sentence
implicated separation-of-powers concerns and violated due process. Id at 20. This case is
currently pending in the Westem District ofNorth Carolina. ^

Persaud v. United States. Case

No. 3:12-cv-509-FDW.

Petitioner also relies on United States v. Reese. Case No. 8:01-cr-135-JFM-l (D. Md.
July 31,2014), in which the government agreed with petitioner's argument that his challenge to a
sentencing enhancement based on previous state felony convictions fell within the savings
clause. Sm Dkt. 132. Reese had been adjudged a career offender based on two previous

Maryland convictions for second-degreeassault. In United States v. Roval. 731 F.3d 333 (4th

Cir. 2013), however,the Fourth Circuit determined that these convictions no longer qualifiedas a
"crime ofviolence" sufficient to enhance Reese's sentence. See, e.g.. Reese. Dkt. 128, at 1-2.
Reese argued that the sentencing enhancement constituted a "fundamental error in the criminal

proceedings," sufficient to allow him to proceed imder the savings clause. Reese relied
primarily on the Eleventh Circuit's decision in Brvant v. Warden. FCC Cnleman. 738 F,3d 1253

general

").

(11th Cir. 2014), which likened an erroneous enhanced sentence to an actual innocence claim.

Reese argued that such fundamental errors were cognizable under the savings clause. See
Reese. Dkt. 128, at 16-17. Reese also advanced the Solicitor General's argument made in
Persaud. discussed above.

Petitioner's argumentsoverlookthe fact that, in both Persaudand Reese, the petitioners
fell squarely within the Jones test. Reese was convicted in 2002, and filed his first § 2255
motion in 2006. See Case No. 8:01crl35, Dkt. 56,68. At the time he filed this motion, he

could not make his Roval argument. He filed a successive § 2255 motion in 2012, relying
primarily on Simmons. See id Dkt. 119. After the court denied this motion, Reese filed the

§ 2241 petition upon which petitioner relies. Id. Dkt. 128. Similarly, Persuad was convicted in

2001, filed a grg se § 2255 motion in 2005,and then a subsequent motionmaking his present
Simmons arguments. See Case No. 3:01cr36-FDW-7, Dkt. 279; Case No. 3:12cv509, Dkt. 1.
At the time of Persaud's first § 2255 motion, his Sunmons challenge was unavailable to him.

Accordingly, both Reese and Persaud fall within the Jones analysis. In contrast, petitioner has
already filed a § 2255 motion raising an identical argument to the one raised m the instant
petition. The fact that his initial § 2255 motion was untimely filed, and that he is barred from

filing a successive motion, does not render§ 2255 inadequate or ineffective to test the validityof
his detention.

Vial. 115 F.3d at 1194 n.5.

In addition, the Fourth Circuit has generally limitedthe application ofthe savings clause
to situations in which a petitioner challenges the validity of his conviction, rather than his

sentence. In Jones, for example, the FourthCircuitallowed the petitionerto proceedunder the
savingsclause because he was incarcerated for conduct that was no longercriminal. Jones. 226

F.3d at 334. Subsequent Fourth Circuit decisions have reiterated that the savings clause is

generally inappropriate to challenge a petitioner's underlying sentence. See Poole. 531 F.3d at
267 n.7 (citing Jones. 226 F.3d at 333-34) ("Fourth Circuit precedent has likewise not extended
the reach ofthe savings clause to those petitioners challenging only their sentence."); see also

Farrow v. Revell. 541 F. App'x 327,328 (4th Cir. 2013) (per curiam) (affirming district court's
conclusion that a challenge to an armed career criminal enhancement was not cognizable under
§ 2241). Specifically,when a petitioner's challenge is based on the application of a sentencing

guideline, his challengeis based not on factual innocence, but on a legal technicality - the
manner of determining the defendant's culpability," United States v. Powell. 691 F.3d 554,558

(4th Cir. 2012) (emphasis in original) (quoting Schriro v. Summeriin. 542 U.S. 348,353 (2004)).
Such a challenge is not based on conduct that is no longer criminal, but is based on a change in
the underlying legal procedure. See, e^ Bovnes v. Berkebile. No. 5:10-cv-939,2012 WL

1569563,at *6 (S.D.W. Va. May 1,2012) (internal footnote omitted) ("The Fourth Circuit's

specific language in Jones contemplates an instance in which a prisoner is imprisoned for an
offense that is no longer a crime."). Importantly, the conduct for which petitioner was convicted
- here, assaulting a police officer - is still criminal. The fact that it is no longer classified as a

crime of violence justifyinga sentencing enhancement does not renderhim actually innocent of
that conduct.^

Accordingly, undercurrently existing FourthCircuit controlling law, petitioner's claim
falls outside the § 2255(e) savingsclause, and he may not proceedunder § 2241. Instead, the

^ Recent developments have called this bright-line rule into question. Persaud has been
stayed in theWestern District of North Carolina pending theFourth Circuit's ruling in United
States V. SurrattNo. 14-6851. Surratt explicitly presents the question whether a challenge to a
sentence, ratherthan a conviction, can be cognizable in a § 2241 petition. The FourthCircuit
heard oral argument in Surratt on January 27,2015.
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instant petition must be construed as a successive motion for relief wider § 2255, which cannot
be brought unless certified as provided in 28 U.S.C. § 2244(b)(3) by a panel of the Fourth Circuit

Court of Appeals. Because no such certification has been sought or granted, this petition must
be dismissed without prejudice to petitioner's ability to seek such certification fi-om the Fourth

Circuit. Petitioner is advised that if such certification is granted, venue for his claim would lie

in the sentencing court, the United States District Court for the Western District ofVirginia.^
IV. Conclusion

For the above-state reasons, this petition must be dismissed, withoutprejudice to
petitioner' ability to move a panel of the United States Court ofAppealsfor the Fourth Circuit
authorizingthe sentencingcourt to considerthe petition. An appropriate judgment and Order
will issue.

This decision cannot be appealed withouta certificate of appealability issued by this

Court or the Fourth Circuit. See28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b). Forthis Court
to issue such a certificate, petitioner must make"a substantial showing ofa denial ofa
constitutional right." 28 U.S.C. § 2253(c)(2). Where, as here,a court deniesa petitionon
procedural groimds, a petitioner meetsthis requirement when he shows "at least, thatjurists of
reason would find it debatable whether the petition states a valid claim ofthe denial of a
constitutional right and that jurists of reason would find it debatable whether the district court

wascorrect in its procedural ruling." Slack v. McDaniel. 529U.S. 473,484 (2000) (emphasis

added). This case presents and decides only thenarrow question of whether thispetitioner.

While an application for § 2241 habeas corpus relief shouldbe filed in the district where

the petitioner isconfined, a motion tovacate imder §2255 must be filed with the sentencing
court.

See Vial, 115 F.3d at 1194.

having previously ^led to obtain reliefunder §2255, can now proceed under §2241. Because
reasonablejurists cannot disagree on this procedural question, petitioner has not met the standard

for this Court to issue acertificate ofappealability. Accordingly, no such certificate shall issue.

It is important to note that the result reached here is arrived with some reluctance,

because the result - that petitioner must serve nearly 22 years in prison instead ofperhaps as few
as ten years or less - seems unfair under the circumstances. Yet, existing, controlling law makes

clear that unless the United States Supreme Court's decision in Descamps and the Fourth
Circuit's decision in

relying on Descamps. are made retroactive, petitioner has no

remedy absent congressional action. Ifthese holdings were retroactive tocases on collateral

review, petitioner would be entitled to file asuccessive §2255 motion in the Western District of

Virginia. Accordingly, petitioner should seek authorization firom the Fourth Circuit to present
this argument to the Western District ofVirginia.
I

Entered this

day of

2015

Alexandria, Virginia
T.S.EUii.m

United States DistrictJudge

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