Washington v. Hollembaek
Filing
11
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 8/20/2015. Copy mailed to Pro Se Petitioner. (jsmi, )
IN THE
UNITED
STATES
DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
MELDON IRVIN WASHINGTON,
Petitioner,
V.
Civil Action No.
3;14CV498
WARDEN HOLLEMBAEK,
Respondent.
MEMORANDUM OPINION
Meldon Irvin Washington, a federal inmate proceeding pro se
and
forma pauperis,
("§ 2241
Petition,"
Magistrate
want
Nos.
of
Judge
filed this 28 U.S.C.
ECF
1).
On
recommended that
jurisdiction.
9-10.)
No.
For
the
Washington
the
reasons
§ 2241 petition^
March
26,
action be
filed
that
2015,
the
dismissed
objections.
follow,
for
(ECF
Washington's
objections will be overruled and the action will be dismissed.
^
That statute provides, in pertinent part:
(c)
The writ of habeas corpus
extend to a prisoner unless—
(1)
the
shall
not
He is in custody under or by color of
authority of the United States or is
committed
thereof;
for
trial
before
some
court
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
United States
....
28 U.S.C.
laws
§ 2241(c) (1)-(3) .
or
treaties
of
the
I.
The
Magistrate
Judge
BACKGROUND
made
the
following
findings
recommendation:
A.
Procedural History and Summary of Washington's
Claim
This Court convicted Washington of conspiracy to
possess with intent to distribute fifty grams or more
of
crack cocaine
and possession with
intent
to
distribute
fifty grams
or more of
sentenced him to 360 months
concurrently.
crack
cocaine and
on each count to be served
See United States v.
Washington,
24 F.
App'x 163, 163 (4th Cir. 2001)
The Fourth Circuit
affirmed Washington's convictions and sentence.
Id.
By Memorandum Opinion and Order entered April 30,
2004, the Court
§ 2255
motion.
denied Washington's
United States v.
first 28 U.S.C.
Washington,
No.
3:00CR287 (E.D. Va. Apr. 30, 2004).
In the ensuing
ten years, Washington has filed abundant challenges to
his convictions and sentence.
Washington's
Petition again challenges his sentence.
§
2241
In his § 2241 Petition, Washington contends that
is unconstitutional
in light of the
Fourth Circuit's holding in Simmons v. United States,
his
sentence
649 F.3d 237
(4th Cir. 2011).^
Washington claims that
^ Washington received an enhanced sentence under 21
U.S.C. § 851.
(S^ Br. Supp. § 2241 Pet. 1, ECF
No.
2.)
^ In Simmons,
the United States Court of Appeals for
the Fourth Circuit
overruled prior decisions and held that, in
deciding
whether
to
enhance
federal
sentences
based on prior North
Carolina
convictions,
sentence
we
that
look
North
not
to
Carolina
the
maximum
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
imposed
on
sentence
a
person
that
with
could
the
have
been
defendant's
and
under Simmons his two prior felony convictions no
longer qualify as felony offenses for purposes of 21
U.S.C.
Court
§
851.
For
RECOMMENDS
the
reasons
that
this
WANT
OF
B.
Motions under 28 U.S.C.
set
action
forth
below,
the
DISMISSED
be
FOR
JURISDICTION.
§ 2255 Compared to
Petitions under 28 U.S.C.
§
2241
A motion made 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 a 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) (citing
Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996);
Hanahan
1982)).
v.
Luther, 693
Nevertheless,
F.2d 629, 632 n.l
the United States
(7th Cir.
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
may proceed under § 2241
actual level
history.
of
has
stressed
aggravation
United States v. Powell,
2012) (emphasis omitted)
that
an
inmate
to challenge his conviction
and
criminal
691 F.3d 554, 556 (4th Cir.
(citing Simmons, 649 F.3d at
241) .
^ "This 'inadequate and ineffective' exception is known
as
the
by
§
'savings
2255."
clause'
Wilson
to
v.
[the]
limitations
Wilson,
No.
imposed
I:llcv645
(TSE/TCB) , 2012 WL 1245671, at *3 (E.D. Va. Apr. 12,
2012)
(quoting ^
re Jones, 226 F.3d 328, 333 (4th
Cir.
2000)).
"in only very limited circumstances."
V.
Poole,
531 F.3d 263,
quotation
id.,
marks
269
United States
{4th Cir.
omitted).
The
2008)
(internal
"controlling
test,"
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
this
circuit
or
the
Supreme
Court
of
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
(emphasis added).
328,
333-34
incarcerated
source
situation in which ^
for
of
2000)
"fundamental defect
conduct
that
is
individual
not
through no fault of his [or her] own,
no
Cir.
The Fourth Circuit formulated this
test to provide a remedy for the
presented by a
(4th
redress."
Id.
at
criminal
is
but,
[he or she] has
333
n.3
(emphasis
added).
C.
Analysis of Washington's 28 U.S.C. § 2241
Washington fails to satisfy the second prong of
In re Jones, 226 F.3d 328, 334
(4th Cir. 2000).
Specifically, Washington fails to demonstrate that
"subsequent
to
§ 2255 motion,
[his]
direct
appeal
and
[his]
first
the
substantive law changed such that
[he] was convicted is deemed not
to be criminal."
Id. (emphasis added).
The conduct
of which Washington stands convicted, conspiracy to
possess with the intent to distribute fifty grams or
more of crack cocaine and possession with intent to
the conduct of which
distribute
remains
a
fifty
grams
or
more
of
crack
cocaine,
crime.
Moreover,
to
the
extent
Washington
seeks
to
proceed by § 2241 to challenge his enhanced sentence
under 21 U.S.C. § 851, Washington fails to establish
that he can utilize the savings
pursue
alleged
sentencing
clause and §
errors.
"Fourth
2241 to
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); Patterson v. Wilson,
No.
3:12CV66,
2013 WL 101544,
2013)
(citations
refusal to allow
challenge a
at *3
(E.D.
Va.
omitted)
("The
Fourth
petitioners to utilize
Jan.
8,
Circuit's
§ 2241 to
career offender designation applies with
equal force to
under 21 U.S.C.
Cir.
2013).
D.
a challenge to an enhanced sentence
§ 851")/ aff'd, 523 F. App'x 243 (4th
Conclusion
Accordingly,
it
is RECOMMENDED that
this action
be DISMISSED FOR WANT OF JURISDICTION.
II.
STANDARD OF REVIEW FOR REPORT AND RECOMMENDATION
"The magistrate [judge] 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."
1993)
Estrada v.
Witkowski,
(citing Mathews v.
816
Weber,
F.
Supp.
423 U.S.
408,
261,
410
270-71
(D.S.C.
(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.
filing of objections to a magistrate[]
the district
and
judge to
legal—that
Thomas v.
Arn,
are
474
at
U.S.
focus
the
"The
report enables
attention on those
issues—factual
heart
140,
28 U.S.C.
636(b)(1).
[judge's]
147
magistrate judge's recommendation,
further evidence."
§
§
of
the
(1985).
parties'
dispute."
When reviewing the
this Court "may also receive
636(b)(1).
III.
Washington
predicate
[§]
WASHINGTON'S
"now vividly
requirement
851(A)(1)."
for
(Objs.
OBJECTIONS
states
he
is
Actual
classification
2,
ECF
No.
Innocence
under
10.)
21
of
U.S.C.
Washington
then
continues to argue that under Simmons v. United States,
649 F.3d
237
enhanced
(4th
Cir.
sentence.
(Id.
.
.
.
2011) ,
he
at 2-3.)
is
actually
innocent
of
his
He claims that
Petitioner's allegations of Actual Innocence,
conviction
and
sentence
under
U.S.
Code
of
titled
21
U.S.C.
[§] 851(A)(1), is not a misapplication of the
United States Advisory Guidelines, but a collateral
attack of conviction and sentence which inherently
resulted in a complete miscarriage of justice that
Petitioner has had no earlier opportunity to challenge
as intervening change in substantive law negated such
convictions far after Washington was convicted and
sentenced
in
interpretation
[§]
(Objs.
of
7.)
demonstrate
WL
case
law,
Judge's
that
alleged
argument.
2015
to
be
under
used
Washington's objections,
Magistrate
pursue
priors
2000,
erroneous
under
21
U.S.C.
851(A)(1).
with recitation of
the
November
he
may use
the
errors
United States v.
at
offer no
reason to
conclusion.
sentencing
4591677,
although verbose and heavy
*1,
Surratt,
*3-8
in
Washington
savings
no
find error
fails
to
clause
§
to
matter
No.
(4th
and
how
he
frames
14-6851,
Cir.
2241
F.3d
July
31,
his
,
2015)
(foreclosing use of § 2241 and savings clause to raise challenge
to
sentence
263,
267 n.7
under
Simmons);
(4th Cir.
2008)
United
States
v.
Poole,
(citing In re Jones,
531
F.3d
226 F.3d 328,
333-34
(4th Cir.
WL 101544,
cf.
at
2000)); Patterson v. Wilson, No. 3:12CV66, 2013
*3
{E.D.
United States v.
cert.
denied,
innocence
135
S.
Va.
Jan.
Jones,
Ct.
8,
2013)
758 F.3d 579,
1467
(2015)
{citations omitted);
587
(4th Cir.
(explaining
that
2014),
actual
jurisprudence providing exception to procedural bars
"does not apply to habeas claims based on actual innocence of a
sentence.")
The Court has reviewed the record, Washington's objections,
and
the
legal
Recommendation,
and
and
factual
finds
conclusions
no
error.
in
the
Washington's
Report
and
objections
will be overruled.
IV.
CONCLUSION
Washington's objections will be overruled.
The Magistrate
Judge's Report and Recommendation will be accepted and adopted.
The action will be dismissed for want of jurisdiction.
The
Clerk is
directed to
send a
copy of
this
Memorandum
Opinion to Washington.
I t is so ORDERED.
/s/
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date
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