Westry v. Wilson

Filing 11

MEMORANDUM OPINION. READ OPINION for complete details. Signed by District Judge Robert E. Payne on 06/30/2017. Copy mailed to Petitioner.(ccol, )

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

Richmond Division

E

P\\

JJN] 3 0 2017

SAM WESTRY,
CLERK, U.S. DiSTfiiCT COURT
RICHMOND. VA

Petitioner,
V.

Criminal No.

ERIC C.

3:15CV62

WILSON,

Respondent.
MEMORANDUM OPINION

This matter is before the Court pursuant to Petitioner Sam
Westry's

U.S.C.

Petition

§ 2241

for

Writ

§ 2241

contends that he
the

statutory

Habeas

Corpus

{"§ 2241 Petition," ECF No.

filed a Motion to Dismiss.

In the

of

pursuant

1).

to

28

Respondent has

(ECF No. 10.)

Petition,

Westry,

a

former federal

inmate,

"is being detained in federal custody beyond
maximum

permitted

for

a

Title

18

U.S.C.

§ 922(g)(1) conviction, in violation of his right to due process
under

the

Fifth Amendment

(§ 2241 Pet.

7.)^

to

As relief,

the

United States

Constitution,"

Westry requests that the Court

"vacate the Title 18 U.S.C.

§ 924(e)

release" him.

Respondent asserts that Westry's

(Id.

at 9.)

statutory judgment and

§ 2241 Petition should be dismissed "because
failed to show that the Section 2255

(1)

[Westry]

has

remedy is inadequate or

^ The Court corrects the spelling and capitalization in
quotations from Westry's submissions.

ineffective as required by Section 2255(e),

Petition

is

moot."

(Mot.

reasons,

Respondent's

granted,

and

Dismiss

Motion

Westry's

§

to

and

1.)

(2)

For

because the

the

following

(ECF

No.

10)

will

be

Petition

2241

Dismiss

(ECF

No.

1)

will

be

dismissed for lack of jurisdiction.

I.

In

2005,

firearm

by

the

a

§ 922(g)(1).
2221714,

at

sentencing,
sentence

served,

motion

*1

(E.D.

the

four

Subsequently,

47

of

of

18

3:04CR267,

of

subject

to

2017

Act

an

release."

denied a

See United States

28
v.

enhanced

with

Id.

WL
At

("ACCA")

imprisonment,

a

U.S.C.

(citation omitted).

Criminal

Court

possession

and

time

(citation

U.S.C.
Westry,

§

2255

395

F.

(4th Cir. 2010).

On June 22,
to 28 U.S.C.

Westry

supervised

the

No.

2017)

months

of

violation

Westry,

Career

18 0

years

Westry
in

May 19,

Armed

to

v.

found

filed by Westry.

App'x 47,

felon,

Va.

Court

Westry

omitted).

convicted

United States

"the

and

Court

convicted

under

sentenced

PROCEDURAL HISTORY

2 016,

§ 2255

("§ 2255 Motion")

2017 WL 2221714, at *1
United States Court

Westry filed a successive motion pursuant
with this Court.

(citation omitted).

of Appeals

authorization for Westry to

file

for

the

Westry,

On July 7, 2016,
Fourth Circuit

the

granted

his successive § 2255 Motion.

Id.

(citation

that,

omitted) .

"in light

(2015),[^]

he

of

In

his

§

2255

Motion,

Johnson v.

improperly

was

United States,

sentenced

Westry

135

as

an

S.

argued

Ct.

Armed

2551

Career

Criminal because his convictions for Virginia burglary no longer

qualify as predicate

'violent felonies'

enumerated, or residual clauses."

Id.

under the ACCA's force,

(citation omitted).

By Memorandum Opinion and Order entered on May 19, 2017,^
the

Court

Westry's
have

at

granted

"convictions

rested

*2.

Westry's

on

The

the

Court

release.

at

120

residual

time

*3.

months

Motion,

served,
Because

sentence,

of

sentence

Westry
the

A motion made pursuant
primary

means

of

Johnson,

to 28

collateral

the

to

had

Court

already
ordered

at

of

supervised
served

that

the

he

be

U.S.C.

attack"

Supreme

on

and such a

Court

§ 2255
the

"provides the

imposition

of

a

motion must be filed

held

that

the

residual

Johnson,

135 S.

2557.

^ As
Westry,

months

Id.

clause of the ACCA is unconstitutionally vague.
Ct.

120

Id.

ANALYSIS

federal conviction and sentence,

^ In

that

the ACCA."

and three years of

immediately released from home confinement.

II.

concluding

statutory burglary may

clause

reduced Westry's

with

reduced

2255

burglary and

now-void

incarceration,
Id.

for

§

of

May 17,

2017 WL 2221714,

2017,
at *1.

Westry

was

on

home

confinement.

with the sentencing court.
451

{5th Cir.

F.2d

1111,

2000)

1113

(quoting Cox v.

(5th

proceed under 28

See Pack v.

Cir.

U.S.C.

Warden,

1990)).

§

A

§ 2255 (e).'*

the

he

632 n.l

of

n.5

166

(4th

Ctr.,

inmate

911

may

not

she demonstrates
"is inadequate or

legality of his detention."

28 U.S.C.

for

afforded

ineffective

Cir.

1997)

(citing

In re Vial, 115 F.3d
Bradshaw v.

(10th Cir. 1996); Hanahan v. Luther,

(7th Cir.

Appeals

remedy

F.3d 44 8,

"For example, attacks on the execution of a sentence

1194

F.3d 164,

or

§ 2255

are properly raised in a § 2241 petition."
1192,

218

Fed. Pet.

federal

2241 unless

that the remedy afforded by 28 U.S.C.
ineffective to test

Yusuff,

1982)).

the

Fourth

by

merely

Nevertheless,

§

Circuit

2255

because

is

an

Story,

86

693 F.2d 629,

the United States Court

has

not

emphasized

rendered

individual

has

that

"the

inadequate
been

unable

or
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."

the

333

Poole,

531

F.3d 263,

269

{4th

^ "This 'inadequate and ineffective' exception is known as
'savings clause' to [the] limitations imposed by § 2255."

Wilson V.

*3

United States v.

Wilson,

No.

(E.D. Va. Apr. 12,
(4th Cir.

I:llcv645

2012)

(TSE/TCB) ,

(quoting ^

2000)).
4

2012 WL 1245671,

re Jones,

at

226 F.3d 328,

Cir. 2008)
test,"

(internal quotation marks omitted).

id.,

The "controlling

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 cann^
satisfy the gatekeeping provisions of

§ 2255 because

the new rule is not one of constitutional law.

In re

Jones,

added).

226

F.3d 328,

333-34

{4th Cir.

2000)

(emphasis

The Fourth Circuit formulated this test to provide a

remedy for the "fundamental defect presented by a situation in
which

an

individual

criminal but,

is

incarcerated

through no fault of his

has no source of redress."
Here,

afforded

Westry

by

28

clearly

U.S.C.

§

successive § 2255 Motion.
2017,

conduct

[or her]

cannot

2255

demonstrate

is

Westry,

inadequate

released

not

[he or she]

that

or

the

from

home

remedy

ineffective.

2017 WL 2221714,

at *1.

the Court granted Westry's § 2255 Motion,

immediately

is

Fourth Circuit to file

his sentence to 120 months of incarceration,
be

own,

that

Id. at 333 n.3 (emphasis added).

Westry received permission from the

May 19,

for

his

On

reduced

and ordered that he

confinement.

Id.

at

*3.

Because Westry received the relief he now seeks by pursuing a

successful § 2255 Motion, he fails to satisfy ^

re Jones, and

the Court lacks jurisdiction to consider his § 2241 Petition.

III.

CONCLUSION

For the foregoing reasons.

(ECF No.
No. 1)

10)
and

will be granted.
the

action

Respondent's Motion to Dismiss

Westry's § 2241 Petition

will

be

to

dismissed

send a

for

want

(ECF
of

jurisdiction.

The

Clerk

is

directed

copy of

the Memorandum

Opinion to Westry and counsel of record.
I t i s so ORDERED.

/s/
Robert E. Payne

Senior United States District Judge

Date:

Richmond/, Virginia