Hardnett v. Wilson

Filing 6

MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 10/06/2014. Copy mailed to Hardnett on 10/7/2014.(tjoh, ).

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

ALEXANDER J. HARDNETT,

Petitioner,

v.

Criminal Action No. 3:13CV497

ED WILSON,

Respondent.
MEMORANDUM OPINION

Alexander J. Hardnett, a federal inmate proceeding pro se, submitted a 28 U.S.C. § 2241l
petition. Following a bench trial, this Court convicted Hardnett of one count of conspiracy to
possess with intent to distribute fifty grams or more of cocaine base and one count of distribution
of cocaine and aiding and abetting such distribution. See United States v. Hardnett, 124 F.

App'x 767, 767 (4th Cir. 2005). The Court ultimately sentenced Hardnett to 392 months of
imprisonment. See United States v. Hardnett, 182 F. App'x 205, 205 (4th Cir. 2006).
Thereafter, the Court denied a 28 U.S.C. § 2255 motion filed by Hardnett. See UnitedStates v.

Hardnett, 520 F. App'x 223, 223 (4th Cir. 2013) (affirmingthe denial of the 28 U.S.C. § 2255
motion).

1That statute provides, in pertinent part:
(c) The writ of habeas corpus shall not extend to a prisoner unless—
(1) He is in custody under or by color of the authority of the United States or
is committed for trial before some court thereof; or

(2) He is in custody for an act done or omitted in pursuance of an Act of
Congress, or an order, process, judgment or decree of a court or judge of the
United States; or

(3) He is in custody in violation of the Constitution or laws or treaties of the
United States....

28 U.S.C. §2241(c)(l)-(3).

In his § 2241 Petition, Hardnett demands reliefbecause "the judge did not find [the] drug
amounts beyond a reasonable doubt

The District Court Judge overruled Petitioner's

objection and relied on the pre-sentence report." (§2241 Pet. 5.) Hardnett insists that, "[judicial
fact finding that increases the mandatory minimum sentence to life for a crime [is] not

permissible under the Sixth Amendment[2]." (Id. (citing Alleyne v. United States, 133 S. Ct.
2151 (2013).)3 Hardnett demands to be resentenced. (Id at 16.) For the reasons set forth
below, the action will be DISMISSED FOR WANT OF JURISDICTION.
A.

Motions under 28 U.S.C. § 2255 Compared to Petitions under 28 U.S.C.
§2241

A motion pursuant to 28 U.S.C. § 2255 provides the primary means of collateral attack

on the imposition of a federal conviction and sentence andmust be filed withthe sentencing
court. See Pack v. Yusuff, 218 F.3d 448,451 (5th Cir. 2000) (quoting Cox v. Warden, Fed. Det.
Or., 911 F.2d 1111,1113 (5th Cir. 1990)). A federal inmate may not proceed under 28 U.S.C.

§ 2241 unless he or she demonstrates that the remedy afforded by 28 U.S.C. § 2255 "is

inadequate or ineffective to test the legality ofhis detention." 28 U.S.C. §2255(e).4 For
example, "attacks on the execution of a sentence are properly raised in a § 2241 petition." In re

2 "In all criminal prosecutions, the accused shall enjoy the right... to have the
Assistance of Counsel for his defence." U.S. Const, amend. VI.

3InAlleyne, the Supreme Court addressed a defendant's mandatory minimum sentence of
seven years for brandishing a firearm under 18 U.S.C. § 924(c)(l)(A)(ii). Alleyne, 133 S. Ct.
2155-56. The Supreme Court held that, other than prior convictions, "facts that increase
[statutory] mandatory minimum sentences mustbe submitted to thejury." Id. at 2163. Hardnett
is less than clear as to why the decision in Alleyne entitles him to any relief.

4"This 'inadequate and ineffective' exception is known as the 'savings clause' to [the]
limitations imposed by § 2255." Wilson v. Wilson, No. I:llcv645 (TSE/TCB), 2012
WL 1245671, at *3 (E.D. Va. Apr. 12, 2012) (quoting In re Jones, 226 F.3d 328, 333 (4th Cir.
2000)).

Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997)(citing Bradshaw v. Story, 86 F.3d 164, 166 (10th

Cir. 1996); Hanahan v. Luther, 693 F.2d 629, 632 n.l (7th Cir. 1982)). Nevertheless, the United

States Court of Appeals for the Fourth Circuit has emphasized that "the remedy afforded by
§ 2255 is not rendered inadequate or ineffective merely because an individual has been unable 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." United States v. Poole, 531 F.3d 263, 269 (4th

Cir. 2008) (citation omitted) (internal quotation marks omitted). The "controlling test," id., 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 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) (emphasis added). The Fourth Circuit

formulated this test to provide a remedy for the "fundamental defect presented by a situation in
which an individual is incarceratedfor conduct that is not criminal but, through no fault of his

[or her] own, [he or she] has no source of redress." Id. at 333 n.3 (emphasis added).
B.

Analysis of Hardnett's 28 U.S.C. § 2241 Petition

Hardnett fails to satisfy the second prong of In re Jones. See id. at 334. Specifically,
Hardnett fails to demonstrate that "subsequent to [his] direct appeal and [his] first § 2255 motion,

the substantive law changed such that the conduct of which [he] was convicted is deemed not to

be criminal" Id. (emphasis added). The conduct of which Hardnett stands convicted,

conspiracy to possess with intent to distribute fifty grams or more of cocaine base and
distribution of cocaine, remains a crime. See Mabry v. Wilson, — F. App'x —, No. 14-6430,

2014 WL 3766729, at *1 (4th Cir. Aug. 1, 2014) (concluding the decision in Alleyne fails to

provide a basis seeking reliefunder § 2241); Alsop v. Chandler, 551 F. App'x 217, 218-19 (5th
Cir. 2014) (concluding the decision in Alleyne fails to provide a basis for challenging convictions
for distribution of cocaine base and conspiracy to distribute cocaine base under § 2241).

Moreover, "Fourth Circuit precedent has ... not extended the reach of the savings clause to

those petitioners challenging only their sentence." Poole, 531 F.3d at 267 n.7 (citing In re Jones,
226 F.3d at 333-34).

Accordingly, the Court will DISMISS Hardnett's 28 U.S.C. § 2241 Petition for want of
jurisdiction.

An appropriate Order shall issue.

/S/

James R. Spencer

Date:/^-/*/
Richmond, Virginia

Senior U. S. DistrictJudge