Gunnell v. United States of America
Filing
16
MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 02/09/2015. Copy mailed to Pro Se Petitioner. (jsmi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
LARRY ROSCOE GUNNELL, JR.,
Petitioner,
V.
Civil Action No. 3;14CV93
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION
Larry Roscoe Gunnell, Jr., a federal inmate proceeding pro se and informa pauperis,
submitted a "28 U.S.C. § 2255 or, alternatively, [a] 28 U.S.C. § 2241"^'^ petition (hereinafter
"§ 2241 Petition," ECF No. 1, at 1).^ On December 18, 2014, the Magistrate Judge issued a
Report and Recommendation wherein he recommended granting the Government's Motion to
Dismiss (ECF No. 8). Upon review of Gunnell's objections, the Report and Recommendation
will be ACCEPTED and ADOPTED, the Government's Motion to Dismiss will be GRANTED,
and this action will be DISMISSED FOR WANT OF JURISDICTION.
' That 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)(lH3).
^ The Court corrects the capitalization and spelling inquotations from Gunnell's filings.
1.
REPORT AND RECOMMENDATION
The Magistrate Judge made the following findings and recommendations:
A.
Procedural History
On April 9, 1999, the Court found Gunnell guilty of possession with intent
to distribute 213.5 grams of crack cocaine in violation of 21 U.S.C.
§ 841(b)(l)(A)(iii). See Gunnell v. United States, No. 3:99CR022, 2001 WL
34780941, at *1 (E.D. Va. Aug. 24, 2001). The United States sought imposition
of an enhanced penalty based on Gunnell's two prior felony drug convictions
pursuant to 21 U.S.C. § 841(b).^ Id. On July 8, 1999, the Court sentenced
Gunnell to a term of life imprisonment. Id. The Fourth Circuit affirmed
Gunnell's conviction. United States v. Gunnell, No. 99-4513, 2000 WL 279280,
at *1 (4th Cir. Mar. 1, 2000). The Court denied Gunnell's first § 2255 Motion on
August 24, 2001. Gunnell, 2001 WL 34780941, at *1.
The Court received Gunnell's § 2241 Petition on February 7, 2014. On
July 21, 2014, the Government filed a Motion to Dismiss, or, in the Alternative, to
Transfer (hereinafter "Motion to Dismiss," ECF No. 8; hereinafter "Motion to
Transfer," ECF No. 9). On August 19, 2014, the Court received from Gunnell a
"Motion for Extension of Time," (ECF. No. 12), requesting thirty days to respond
to the Government's motions because "twenty-(21) days will not be accurate for
the petitioner to completely address these matters." {Id. at 1.) The Court has not
received any subsequent filings from Gunnell.
B.
Summary of Gunnell's Claim
In his
§ 2241
Petition, Gunnell contends that his
sentence is
unconstitutional in light of the Fourth Circuit's holding in Simmons v. United
States, 649 F.3d 237 (4th Cir. 2011)."* Gunnell concedes that he "is not eligible
^ "Ifany person commits a violation ofthis subparagraph . . . after two or more
prior convictions for a felony drug offense have become final, such person shall
be sentenced to a mandatory term of life imprisonment." 21 U.S.C.
§ 841(b)(1)(A).
^ In Simmons, the United States Court ofAppeals for the Fourth Circuit
overruled prior decisions and held that, in deciding whether to
enhance federal sentences based on prior North Carolina
convictions, we look not to the maximum sentence that North
Carolina courts could have imposed for a hypothetical defendant
who was guilty of an aggravated offense or had a prior criminal
record, but rather to the maximum sentence that could have been
for relief under ... § 2255, because his petition is successive
" (§ 2241 Pet. 1
(emphasis omitted).) He nevertheless maintains that he is entitled to relief under
§2241, because § 2255 is "inadequate or ineffective and the defendant seeks
relief for a fundamental defect." (id. at 3 (emphasis omitted).) Gunnell alleges
that one of his two prior convictions that warranted a mandatory minimum life
sentence under § 841(b)(1)(A) does "not qualify as a prior felony conviction
because it was a suspended sentence." {Id. at 5 (citation omitted).) He asserts
that under Simmons, "this prior conviction does not qualify as a predicate
offense." {Id. at 6.)^ Gunnell demands to be resentenced. {Id. at 7.)
For the reasons set forth below, the Court RECOMMENDS that the
Government's Motion to Dismiss be GRANTED, the Government's Motion to
Transfer be DENIED, Gunnell's Motion for Extension of Time be DENIED, and
this action be DISMISSED FOR WANT OF JURISDICTION.
C.
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, and
such motion must be filed with the sentencing court. See Pack v. Yusuff, 218 F.3d
448, 451 (5th Cir. 2000) (quoting Cox v. Warden, Fed Det Ctr., 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 of his detention." 28 U.S.C.
§ 2255(e).^ "For example, attacks on the execution of a sentence are properly
raised in a § 2241 petition." In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997)
imposed on a person with the defendant's actual level of
aggravation and criminal history.
United States v. Powell, 691 F.3d 554, 556 (4th Cir. 2012) (citing Simmons, 649
F.3dat241).
^ Gunnell misconstrues the holding in Simmons. In determining whether a
previous offense is a felony "[p]ursuant to Simmons, . . . the actual sentence
imposed is irrelevant; rather, the relevant inquiry is whether the actual defendant
was subject to a potential sentence of greater than one year of imprisonment."
United States v. Thompson, 480 F. App'x 201, 204 (4th Cir. 2012).
^ "This 'inadequate and ineffective' exception is knovm 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)).
(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 Ck. 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).
D.
Analysis of Gunnell's 28 U.S.C. § 2241 Petition
Gunnell fails to satisfy the second prong of In re Jones. See id. at 334.
Specifically, Gunnell 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 Gunnell stands convicted, possession of 50 grams or more
^ Gunnell cannot avoid the bar on filing successive 28 U.S.C. § 2255 motions by
suggesting he is filing a petition for a writ of audita querela or a coram nobis
petition. (§ 2241 Pet. 1.) "Call it a motion for a new trial, arrest of judgment,
mandamus, prohibition, coram nobis, coram vobis, audit querela . . . , the name
makes no difference. It is substance that controls." Melton v. United States, 359
F.3d 855, 857 (7th Cir. 2004) (citing Thurman v. Gramley, 97 F.3d 185, 186-87
(7th Cir. 1996)). Thus, "[a]ny motion filed in the district court that imposed the
sentence, and substantively within the scope of § 2255 [(a)], is a motion under
§ 2255, no matter what title the prisoner plasters on the cover." Id. (citing
Ramunno v. United States, 264 F.3d 723 (7th Cir. 2001)).
of cocaine base with intent to distribute, is still criminal.
See 21 U.S.C.
§ 841(b)(l)(A)(iii). Moreover, "Fourth Circuit precedent has ... not extended the
reach of the savings clause to those petitioners challenging only their sentence."
Pooky 531 F.3d at 267 n.7 (citing In re Jones, 226 F.3d at 333-34).^ For these
reasons, Gunnell fails to demonstrate that § 2255 is inadequate and ineffective to
test the legality of his conviction; accordingly, he may not proceed under § 2241.
Furthermore, the Court lacks jurisdiction over Gurmell's § 2241 Petition
under the plain language of the statute. "Writs of habeas corpus may be granted
by . . . the district courts and any circuit judge within their respective
jurisdictions.'" 28 U.S.C. § 2241(a) (emphasis added). Therefore, "a §2241
habeas petition can only be filed in the district in which a prisoner is confined."
Poole, 531 F.3d at 264. Although there is some question as to whether the term
"jurisdiction," as used in the habeas statute, refers to venue or personal
jurisdiction, id. at 270 n. 12 (citing Rumsfeld v. Padilla, 542 U.S. 426, 434 n.7
(2004)), the term "is a sine qua non of addressing the merits of the petition," id.
(citing Strait v. Laird, 406 U.S. 341, 343 (1972)). Gunnell is currently
incarcerated in Salters, North Carolina. The Government, in its "Memorandum in
Support of Respondent's Motion to Dismiss, or, in the Alternative, to Transfer,"
(Mem. Supp. Mot. Dismiss 8-9, ECF No. 10), timely raised this objection to the
Court's jurisdiction. See Kanai v. McHugh, 638 F.3d 251, 258 (4th Cir. 2011)
(holding that "any chedlenge to habeas proceedings based on this language in
§ 2241(a) is waived if not timely asserted" (citations omitted)). For these reasons,
the Court concludes that it lacks jurisdiction to review Gunnell's § 2241 Petition,
and it is RECOMMENDED that the Government's Motion to Dismiss be
GRANTED.
E.
Gunnell's Motion for Extension of Time
In his Motion for Extension of Time, Gunnell requests thirty days to
respond to the Government's Motion to Dismiss and Motion to Transfer, as
g
Recently, a panel of the Fourth Circuit appeared to retreat from this position and
"expressly [decided not to] decide whether the savings clause in § 2255(e) might
justify relief fi-om a .. . sentencing error through the filing of a § 2241 petition,"
but noted that the United States Court of Appeals for the Eleventh Circuit
"recently permitted a federal inmate to use § 2255(e) to bring a § 2241 petition
challenging the legality of his sentence." Whiteside v. United States, 748 F.3d
541, 547 n.4 (4th Cir. 2014) (citing Bryant v. Warden, 738 F.3d 1253 (11th Cir.
2013)). But cf. Spencer v. United States, _ F.3d _, No. 10-10676, 2014 WL
6234529, at *4-5 (11th Cir. Nov. 14, 2014) (rejecting the assertion that errors in
applying the U.S. Sentencing Guidelines
may constitute a fundamental
miscarriage of justice). However, the panel decision in Whiteside was vacated
and the matter was set for rehearing en banc. See Whiteside v. United States, 578
F. App'x 218,218 (4th Cir. 2014).
opposed to twenty-one days.
Over four months have elapsed since the
Government filed these motions, during which Gunnell failed to file a response.
Even if the Court granted Gunnell's Motion for Extension of Time, he would still
have missed the response deadline. Because Gunnell will receive a copy of this
Report and Recommendation, and will have fourteen days to file objections, it is
RECOMMENDED that the Motion for Extension of Time be DENIED.
F.
Conclusion
For the reasons set forth above, the Court RECOMMENDS that the
Government's Motion to Dismiss (ECF No. 8) be GRANTED, the Government's
Motion to Transfer (ECF No. 9) be DENIED, Gunnell's Motion for Extension of
Time (ECF No. 12) be DENIED, and this action be DISMISSED FOR WANT
OF JURISDICTION.
(Dec. 18, 2014 Report and Reconmiendation (alterations and omissions in original).) The Court
advised Gunnell that he could file objections within fourteen (14) days after the entry of the
Report and Recommendation. Gunnell filed objections.
II.
STANDARD OF REVIEW
"The magistrate makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with this
court." Estrada v. Witkowski, 816 F. Supp. 408, 410 (D.S.C. 1993) (citing Mathews v. Weber,
423 U.S. 261, 270-71 (1976)). This Court "shall make a de novo determination of those portions
of the report or specified proposed findings or recommendations to which objection is made." 28
U.S.C. § 636(b)(1), "The filing of objections to a magistrate's report enables the district judge to
focus attention on those issues—^factual and legal—^that are at the heart of the parties' dispute."
Thomas v. Arn, 474 U.S. 140, 147 (1985).
III.
GUNNELL'S OBJECTIONS
On January 13, 2015, the Court received firom Gunnell a "Motion to the Report and
Recommendation Memorandum of Supporting Facts" (ECF No. 14 (capitalization corrected)),
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which the Court construes to be Gunnell's Objections. In his Objections, Gunnell alleges that
"[i]n this Circuit, the Fourth Circuit has filed for en[ ]banc hearing in the latest case in Surratt v.
United States, [Nos. 3:12-CV-513, 3:04-CR-250-19, 2014 WL 2013328 (W.D.N.C. May 16,
2014)]^ ... to decide [ ] whether this is the correct vehicle to challenge an individual's sentence
or conviction on 28 U.S.C. § 2241(Objs. 1 (emphasis omitted).) Gunnell requests that the
Court hold his case in abeyance. (Id.)
"[S]tay and abeyance should be available only in limited circumstances." Rhines v.
Weber, 544 U.S. 269,277 (2005), "Staying a federal habeas petition frustrates the
[Antiterrorism and Effective Death Penalty Act of 1996]'s objective of encouraging finality by
allowing a petitioner to delay the resolution of the federal proceedings." Ryan v. Gonzales, 133
S. Ct. 696, 709 (2013) (quoting Rhines, 544 U.S. at 277). The Court fails to find,'® and Gunnell
fails to provide, any evidence that the Fourth Circuit has ordered rehearing in Surratt, or granted
a motion for rehearing. Moreover, were the Fourth Circuit to amend Circuit precedent in a
manner that would provide Gunnell relief, he may file a § 2241 petition at that time. See United
States V. Little, 392 F.3d 671, 680 (4th Cir. 2004) (noting that "[§] 2241 is not subject to the
^InSurratt, the defendant's "serious drug trafficking and recidivist criminal history
required the Court to impose a mandatory life sentence pursuant to 21 U.S.C. § 841(b)(1)(A)."
Surratt v. United States, Nos. 3:04-CR-250-19, 3:12-CV-513, 2014 WL 2013328, at *2
(W.D.N.C. May 16,2014) (citation omitted). Surratt filed a motion "under § 2255 or,
altematively, under 28 U.S.C. § 2241 or for writ of error coram nobis," arguing that "that the
change in law brought about by United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en
banc), requires that his life sentence be vacated and that he be resentenced." Id, at *1. The
District Court denied Surratt's motion "[b]ecause Petitioner cannot establish the second prong of
the Fourth Circuit's test in In re Jones, 226 F.3d 328 (4th Cir. 2000), for ahemative relief under
§ 2241—^that the subsequent law change rendered the conduct of which he was convicted noncriminal . , . I d ,
See En Banc Cases, United States Court of Appeals for the Fourth Circuit, select 2014,
http://www.ca4.uscourts.gov/opinions/en-banc-cases (last visited Feb. 3, 2015).
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procedural requirements of [28 U.S.C.] § 2244(b)," which limits when an inmate may bring a
successive habeas corpus petition), holding modified by United States v. Urutyan, 564 F.3d 679
(4th Cir. 2009). For these reasons, Gunnell fails to demonstrate how holding this matter in
abeyance would further the interests ofjustice. Gunnell's Objections will be OVERRULED.
IV.
CONCLUSION
Gunneirs Objections will be OVERRULED. The Report and Recommendation will be
ACCEPTED and ADOPTED. The Government's Motion to Dismiss (ECF No. 8) will be
GRANTED, the Government's Motion to Transfer (ECF No. 9) will be DENIED, Gunnell's
Motion for Extension of Time (ECF No. 12) will be DENIED, and this action will be
DISMISSED FOR WANT OF JURISDICTION.
An appropriate Final Order will accompany this Memorandum Opinion.
/s/
James R. Spencer
Date:
Richmond, Virginia
Senior U. S. District liiclce
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