Wilson v. Coakley

Filing 17

MEMORANDUM OPINION AND ORDER denying 2 Petition for Writ of Habeas Corpus (2254), filed by Michael Maurice Wilson, Construed as a petition filed under 28 U.S.C. § 2255. The Court finds that Petitioner's § 2255 motion, as well as his petition to proceed informa pauperis, is DENIED. Additionally, Petitioner has not set forth a specific issue that demonstrates a substantial showing of a denial of a constitutional right. Therefore, pursuant to 28 U.S.C. § 2253(c)(2), a Certificate of Appealability is DENIED. A copy of this order was mailed to petitioner on 2/10/17. Signed by District Judge Raymond A. Jackson on 2/9/17 and filed on 2/10/17. (tbro)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

MICHAEL MAURICE WILSON,
Petitioner,
CRIMINAL ACTION NO. 2:llcrl80

V.

CIVIL ACTION NO. 2:17cv75

UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINIONAND ORDER

Michael Maurice Wilson ("Petitioner") has submitted a Petition to proceed in forma
pauperis, and a Motion pursuant to 28 United States Code, Section 2241 (§ 2241). For the
reasons set forth herein, the Court CONSTRUES Petitioner's § 2241 Motion as a Motion filed

pursuant to Title 28, United States Code, Section 2255 (§ 2255). Having thoroughly reviewed
Petitioner's petition and § 2255 Motion, the Court finds that this matter is ripe for judicial
determination, and does not need to hold a hearing. For the foregoing reasons. Petitioner's
petition and § 2255 Motion are DENIED.
I. FACTUAL AND PROCEDURAL HISTORY

On February 6, 2013, a Grand Jury in the Eastern District of Virginia indicted Petitioner
on four counts. ECF No. 210 (No. 2:1 lcrl80). On October 4, 2013, Petitioner pled guilty to
Count Thirty-Nine of the Indictment. ECF No. 306 (No. 2:1 lcrl80). Count Thirty-Nine charged
Petitioner with Witness Tampering in violation of 18 U.S.C. § 1512(a)(2)(A). Id. On March 24,
2014, Petitioner was sentenced to imprisonment for forty months to be served consecutive to the
term imposed in case number 2:07crl29. ECF Nos. 395 & 396 (No. 2:llcrl80). The Court

further directed that Petitioner's term of imprisonment would be followed by a three-year term of
supervised release to run concurrently with the sentence imposed in case number 2:07crl29. Id.
On October 30, 2015, Petitioner filed an Application to Proceed in forma pauperis, as
well as a Motion pursuant to 28 U.S.C. § 2241. ECF No. 1 & 2 (No. 2:17cv75). To date,

Petitioner has not filed an appeal with the United States Court of Appeals for the Fourth Circuit.
II. LEGAL STANDARD

When a petitioner in federal custody wishes to collaterally attack his sentence or
conviction, the appropriate motion is a § 2255 motion. United States v. Winestock, 340 F.3d 200,
203 (4th Cir. 2003). Section 2255 of Title 28 of the United States Code governs post-conviction
relief for federal prisoners. It provides in pertinent part:
A prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground that
the sentence was imposed in violation of the Constitution or laws
of the United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.

28 U.S.C. § 2255(a).

In a proceeding to vacate a judgment of conviction, the petitioner bears the burden of
proving his or her claim by a preponderance of the evidence. Miller v. United States, 261 F.2d
546, 547 (4th Cir. 1958). Motions under § 2255 "will not be allowed to do service for an
appeal." Sunal v. Large, 332 U.S. 174, 178 (1947). For this reason, issues already fully litigated
on direct appeal may not be raised again under the guise of a collateral attack. Boeckenhaupt v.
United States, 537 F.2d 1182, 1183 (4th Cir. 1976).

When deciding a § 2255 motion, the Court must promptly grant a hearing "unless the
motion and the files and records of the case conclusively show that the prisoner is entitled to no

relief." 28 U.S.C. § 2255(b) (2008). Whether a hearing is mandatory for a § 2255 Motion and
whether petitioner's presence is required at the hearing is within the district court's sound
discretion and is reviewed for abuse of discretion. Raines v. United States, 423 F.2d 526, 529

(4th Cir. 1970) (citing Machibroda v. United States, 368 U.S. 487 (1962)).
III. DISCUSSION

Petitioner petitions the Court for permission to proceed informa pauperis, and moves the
Court to "correct" or "vacate" his sentence pursuant to § 2241. ECF Nos. 1& 2 (No. 2:17cv75).
The Court will first address Petitioner's motion pursuant to § 2241 because the Court's
determination on Petitioner's motion will determine whether Petitioner's petition to proceed in
forma pauperis should be granted.

Petitioner argues that because he was sentenced for witness tampering, he should not
have received an enhancement for making a "credible threat" to use violence. Id. Petitioner
asserts that the foregoing constitutes "double jeopardy," and that the sentencing Court "was
wrong when it enhanced [Petitioner's] sentence by applying a 2 level enhancement for threat of

violence," which he argues is equivalent to tampering. Id. Petitioner argues that in light of this
violation, he should be granted relief under § 2241.

A federal prisoner may file a motion pursuant to § 2241, if the remedy under § 2255 is
" 'inadequate or ineffective to test the legality of his detention.' " Poe v. LaRiva, 834 F.3d 770,
772 (7th Cir. 2016) (quoting Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013) & 28 U.S.C.

§ 2255(e) (2008) ("Savings Clause")). The remedy under § 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 cannot satisfy the

gatekeeping provisions of § 2255 because the new rule is not one of constitutional law.
In Re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000). Thus, "[i]t is beyond question that §

2255 is not inadequate or ineffective merely because an individual is unable to obtain relief

under that provision." Id, 226 F.3d at 333. A contrary rule would effectively nullify § 2255's
gatekeeping provisions. Id. at 334.

To successfully pursue relief under § 2241, Petitioner must show he satisfies all of the

aforementioned factors to render remedy under § 2255 inadequate and ineffective to test the
legality of his conviction. Here, Petitioner has not shown that he satisfies any of these factors.
First, at the time of Petitioner's sentencing, the law was not unsettled regarding its legality—

namely that it is illegal to "influence, delay, or prevent the testimony of any person in an official

proceeding." See 18 U.S.C. 1512(a)(2)(A) (2008); ECF No. 398 (No. 2:llcrl80); see generally
United States v. West, 303 Fed App'x 156, 157 (4th Cir. 2008). This is especially true when
Petitioner intelligently and voluntarily admitted to so doing. See ECF No. 306 (No. 2:llcrl80).
Second, to date, Petitioner has not filed a § 2255 motion, which means the second factor does not
apply. Third, Petitioner's Motion is directly related to an alleged Constitutional violation because
Petitioner asserts that his rights, pursuant to the Double Jeopardy clause of the Fifth Amendment
to the United States Constitution, have been violated. As a result, the third factor is also

inapplicable. For these reasons, the Court CONSTRUES Petitioner's petition as having been
filed under 28 U.S.C. § 2255.

A § 2255 motion is subject to a one-year statute of limitations. 28 U.S.C. § 2255(f)
(2008). The limitations period shall run from the latest of:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action
in violation of the Constitution or laws of the United States is removed, if the movant was

prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if
that right has been newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been
discovered through the exercise of due diligence.

Id. at (l)-(4). Petitioner's § 2255 motion is not timely under § 2255(f)(1) because he
filed more than one year after his judgment of conviction became final. The motion is not timely
under § 2255(f)(2) because Petitioner alleges no unlawful governmental action that prevented
him from filing the § 2255 Motion. The motion is not timely under § 2255(f)(3) because he has
not alleged any right that has been newly recognized by the Supreme Court and made
retroactively applicable to his case on collateral review. The motion is not timely under §
2255(f)(4) because Petitioner provides no evidence of newly discovered facts that would affect
his sentence.

For these reason, Petitioner's § 2255 Motion is DENIED. Accordingly, Petitioner's

petition to proceed informa pauperis is also DENIED.
IV. CONCLUSION

For the foregoing reasons, the Court finds that Petitioner's § 2255 motion, as well as his

petition to proceed informa pauperis, is DENIED.
Additionally, Petitioner has not set forth a specific issue that demonstrates a substantial
showing of a denial of a constitutional right. Therefore, pursuant to 28 U.S.C. § 2253(c)(2), a
Certificate of Appealability is DENIED.
The Court DIRECTS the Clerk to send a copy of this Order to Petitioner and to the
United States Attorney.
IT IS SO ORDERED.

Norfolk, Virginia

f'aMiiond A. Jackson

February / , 2017

United oialcs District Jud^^e

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