Henderson v. Wilson

Filing 24

MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 8/26/2019. Copy to Henderson as directed. (jsmi, )

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

JASON LEWIS HENDERSON,
Petitioner,

v.
ERIC WILSON,
Respondent.

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Civil Action No. 3:18CV238-HEH

MEMORANDUM OPINION
(Dismissing§ 2241 For Lack of Jurisdiction)

Jason Lewis Henderson, a federal inmate proceeding prose, submitted a 28 U.S.C.

§ 2241 Petition. ("§ 2241 Petition," ECF No. 1.) 1 The Government filed a Motion to
Dismiss. (ECF No. 20.) For the reasons set forth below, the Government's Motion to
Dismiss will be granted and the § 2241 Petition will be dismissed without prejudice for
want of jurisdiction.

1

The 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.A. § 224l(c)(l)-(3).

I.

Procedural History

On January 20, 2019, Henderson pled guilty to one count of possession with the
intent to distribute 73. 7 grams of a mixture and substance containing a detectible amount
of cocaine base (Count One) and possession of a firearm in furtherance of a drug
trafficking crime (Count Three) in the United States District Court for the Middle District
of North Carolina ("Sentencing Court"). See Plea Agreement , 1, United States v.

Henderson, No. 1:09CR333-l (M.D.N.C. filed Jan. 20, 2010), ECF No. 20. The
Government previously had filed an Information of Prior Conviction under 21 U.S.C.

§ 851 that listed two prior convictions and would have subjected Henderson to a
mandatory life sentence under the 2009 version of21 U.S.C. § 841(b)(l)(A). See
Information of Prior Conviction, Henderson, No. 1:09CR333-1 (M.D.N.C. filed Oct. 28,
2019). In exchange for his guilty plea, the Government agreed to withdraw one of the
convictions listed in the Information of Prior Conviction under 21 U.S.C. § 851, lowering
the statutory minimum and maximum sentence for Count One to not less than twenty
years and not more than life imprisonment. Plea Agreement,, 2.a, 5, Henderson,
No. 1:09CR333-1. In his Plea Agreement, Henderson agreed that he understood that he
would be subject to this statutory minimum and maximum. Id. , 2.a.
A Presentence Report ("PSR") prepared before sentencing found Henderson to be
a career offender under § 4B 1.2 of the United States Sentencing Guidelines ("USSG")
because he had two prior controlled substance offenses. PSR, Henderson,
No. 1:09CR333-1 (M.D.N.C. filed Apr. 08, 2019), ECF No. 78. Henderson's offense
level as a career offender was 37 because, under USSG § 4B l. l(a), his offense statutory
2

maximum was life in prison. Id. ,i 20. Even without the § 851 enhancement,
Henderson's offense statutory maximum sentence was life because he agreed in his Plea
Agreement that 73.7 grams of cocaine base were attributable to him. See 21 U.S.C.
§ 841(b)(l)(A) (2009). Thus, as a career offender, Henderson's offense level would have
been 37 with or without the statutory enhancement. Henderson received an adjustment
for acceptance of responsibility, resulting in a total offense level of 34, and a criminal
history category of VI. PSR ,i,i 21-22, 86, Henderson, No. 1:09CR333-1. Henderson's
applicable advisory guidelines range was 322 to 387 months (262 to 327 on Count One,
followed by 60 months on Count Three) of incarceration. Id. ,i 86. On November 17,
2010, the Sentencing Court entered judgment against Henderson and sentenced him to
131 months of incarceration on Count One and a consecutive term of 30 months on
Count Three. See J. 2, Henderson, No. 1:09CR333-1 (M.D.N.C. Nov. 17, 2010), ECF
No. 30.
On March 21, 2012, Henderson filed a§ 2255 motion in the Sentencing Court.
Henderson, No. l:09CR333-1 (M.D.N.C. filed Mar. 21, 2012), ECF No. 38. In his

§ 2255 motion and his various supplements, Henderson argued, inter alia, that his career
offender designation and the § 851 enhancement were no longer valid after United States
v. Simmons, 649 F.3d 237 (4th Cir. 2011). 2 (See ECF No. 1-1 at 2.) The Sentencing

In Simmons, the Fourth Circuit addressed the method for determining whether a prior
conviction is considered a "felony" conviction punishable by a term of more than one year.
Simmons, 649 F.3d 243-35. The Fourth Circuit
2

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
3

Court rejected this claim and concluded that Henderson's Simmons claim was barred by

United States v. Foote, 784 F.3d 931 (4th Cir. 2015). See R&R 2, Henderson,
No. 1:09CR333-1 (M.D.N.C. Oct. 26, 2016), ECF No. 73; Order 1, Henderson,
No. 1:09CR333-1 (M.D.N.C. Nov. 28, 2016), ECF No. 76.
In his § 2241 Petition, Henderson once again challenges his sentence and argues
that he is no longer subject to the § 851 enhancement based on Simmons because his prior
convictions no longer qualify as "felony drug offenses." (See ECF No. 1, at 3, 7.)3 As
discussed below, Henderson fails to demonstrate that he may use § 2241 to obtain relief.

II.

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. Yusujf, 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

defendant who was guilty of an aggravated offense or had a prior criminal record,
but rather to the maximum sentence that could have been 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.3d at 241).
3

The Court employs the pagination assigned by the CM/ECF docketing system for
citations to Henderson's submissions.
4

his 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 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.1 (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 or her 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 Fourth Circuit recently expanded the longstanding "controlling test," id.,
as follows:
[W]e conclude that § 2255 is inadequate and ineffective to test the legality
of a sentence when: ( 1) at the time of sentencing, settled law of this circuit
or the Supreme Court established the legality of the sentence; (2) subsequent
to the prisoner's direct appeal and first § 2255 motion, the aforementioned
settled substantive law changed and was deemed to apply retroactively on
collateral review; (3) the prisoner is unable to meet the gatekeeping
provisions of§ 2255(h)(2) for second or successive motions; and (4) due to
this retroactive change, the sentence now presents an error sufficiently grave
to be deemed a fundamental defect.

4

"This 'inadequate and ineffective' exception is known as the 'savings clause' to [the]
limitations imposed by§ 2255." Wilson v. Wilson, No. 1:l lcv645 (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)).
5

United States v. Wheeler, 886 F.3d 415,429 (4th Cir. 2018) (citations omitted), cert.
denied, 138 S. Ct. 1318 (2019). 5

III.

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

Here, Henderson challenges the legality of his sentence. Henderson fails to satisfy
the second prong of Wheeler. Specifically, Henderson fails to demonstrate that the
"settled substantive law changed and was deemed to apply retroactively on collateral
review," and, that, "due to this retroactive change, the sentence now presents an error
sufficiently grave to be deemed a fundamental defect." United States v. Wheeler, 886
F.3d 415,429 (4th Cir. 2018.) Although Henderson argues that Simmons entitles him to
relief on his sentence, Simmons was decided in 2011, prior to when Henderson filed his
§ 2555 motion in 2012. The Fourth Circuit held that Simmons applied retroactively to

cases on collateral review on August 21, 2013. See Miller v. United States, 135 F.3d 141
(4th Cir. 2015). 6 Henderson raised challenges to his sentence under Simmons in his first

5

Until Wheeler, a petitioner was required to satisfy the following test and was unable to
challenge his sentence:
[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).
6

In Wheeler, the Fourth Circuit suggests that a Simmons claim was not available until
they held the case retroactive to cases on collateral review in Miller despite the fact that the
controlling opinion was decided in 2011. 886 F.3d at 421,429. The Fourth Circuit fails to
explain how this approach squares with how retroactivity is handled under§ 2255. Nevertheless,
6

§ 2255 motion and supplemented that motion many times between 2012 and 2015 when
the Sentencing Court finally dismissed the motion. Henderson clearly had an opportunity
during that time to supplement his§ 2255 motion to argue that Simmons was now
retroactive. Thus, the "deemed to apply retroactively on collateral review" version of a
Simmons claim was clearly available to Henderson during the pendency of his first
§ 2255 motion. Henderson fails to satisfy the second prong of Wheeler.
Henderson also fails to meet the fourth prong of Wheeler. Here, Henderson's
sentence was based solely on the finding that he was a career offender under the advisory
sentencing guidelines, not based on the § 851 enhancement as Henderson suggests.
Because Henderson agreed that 73.7 grams of cocaine base were attributable to him in his
Plea Agreement, his statutory maximum sentence was life imprisonment regardless of an

§ 851 enhancement. Thus, even without the § 851 enhancement his offense level was 3 7
under the USSG. Henderson's sentence was driven by his career offender status under
the advisory guidelines.
The fourth prong of Wheeler requires a showing that due to a retroactive change in
the law, Henderson's sentence "now presents an error sufficiently grave to be deemed a
fundamental defect." Wheeler, 886 F.3d at 429. The Fourth Circuit has concluded that a
misclassification as a career offender can be a fundamental defect if the sentencing
occurred pre-United v. Booker, 543 U.S. 220, 245 (2005), when the Sentencing

the Court is constrained to assume that, for the purposes of § 2241, Simmons was not "deemed to
apply retroactively on collateral review" until August 21, 2013.
7

Guidelines were mandatory. Lester v. Flournoy, 909 F.3d 708, 715 (4th Cir. 2018).
However, the Fourth Circuit explicitly noted that if Lester had been sentenced under the
post-Booker advisory Sentencing Guidelines, his petition would be barred as failing to

meet the fourth prong of Wheeler. Id. at 715. The Court explained:
In [United States v. ]Foote[, 784 F.3d 931 (4th Cir. 2015)], we said a
prisoner couldn't challenge a trial court's misapplication of the advisory
Guidelines under§ 2255. 784 F.3d at 932. The government is correct that
in Foote, we distinguished a misapplied career offender enhancement from
fundamental defects such as "sentences issued 'in excess of the maximum
authorized by law'." Id. at 942 (quoting 28 U.S.C. § 2255(a)). But crucial
to our analysis in Foote was that the petitioner, unlike Lester, was sentenced
after Booker had rendered the Guidelines purely advisory. Because the
Guidelines lacked legal force, we explained, an erroneous advisory
Guidelines classification was unlike a violation of a statute or constitutional
provision. Id. at 942; see Wheeler, 886 F.3d at 422 n.9 (distinguishing
Foote).
Foote undoubtedly would bar Lester's petition had he been sentenced
under the advisory Guidelines. But Foote simply doesn't apply to a
petitioner sentenced in the pre-Booker era. Indeed, we denied the petitioner's
claim in Foote partly on the grounds that, because he was sentenced under
the advisory Guidelines, the district court not only had the discretion to
decide whether the Guidelines sentence was justified, but in fact was required
to do so. Foote, 784 F.3d at 941-42; see 18 U.S.C. § 3553(a) (requiring
individualized analysis of sentencing factors). That discretion is what the
district court lacked at Lester's sentencing because, at that time, the
Guidelines were mandatory.
Lester, 909 F .3d at 715 (emphasis added); see Payton v. Entzell, No. 2: 18CV48, 2019

WL 2578770, at *2-3 (N.D. W.Va. June 24, 2019) (holding that petitioner challenging
career offender sentence under advisory guidelines fails to satisfy the fourth Wheeler
prong). Henderson was sentenced in 2010 and under the advisory Guidelines. Therefore,

8

he cannot meet the fourth prong of Wheeler, and the Government's Motion to Dismiss
will be granted. 7

IV.

Conclusion

Because Henderson fails to demonstrate that the "settled substantive law changed
and was deemed to apply retroactively on collateral review," Wheeler, 886 F.3d at 429,

after his first§ 2255 motion, he may not proceed by§ 2241. Accordingly, the
Government's Motion to Dismiss (ECF No. 20) will be granted. Henderson's§ 2241
Petition (ECF No. I) will be dismissed without prejudice for want of jurisdiction.
An appropriate Order shall issue.

~HUDSON Isl
HENRY E.
Date:
Richmond, Vir

SENIOR UNITED STATES DISTRJCT JUDGE

7 The

Government also asserts that Henderson waived the right to bring this petition
challenging his sentence by his validly entered guilty plea. (Mot. Dismiss 6.) In Wheeler, and in
subsequent cases in the Fourth Circuit, it does not appear that the Government made the
argument that the terms of the defendants' plea agreements waived the right to challenge their
sentence in post-conviction proceedings. Here, in his guilty plea, Henderson agreed that he
expressly waiv[ed] the right to appeal the conviction and whatever sentence is
imposed on any ground ... and further to waive any right to contest the conviction
or the sentence in any post-conviction proceeding, including any proceeding under
Title 28, United States Case, Section 2255, excepting the defendant's right to appeal
based on the grounds of (1) ineffective assistance of counsel, (2) prosecutorial
misconduct not known to the defendant at the time of the defendant's guilty plea,
(3) a sentence in excess of the statutory maximwn, and (4) a sentence based on an
unconstitutional factor, such as race, religion, national origin or gender.
See Plea Agreement 1 I, United States v. Henderson, No. 1:09CR333-1 (M.D.N.C. filed Jan. 20,
2010). Henderson fails to provide any persuasive reason why his guilty plea was not knowing or
voluntary and therefore, why his validly entered plea agreement would not bar his postconviction challenge to his sentence. Nevertheless, because Henderson fails to satisfy Wheeler,
the Court declines to dismiss the § 2241 Petition solely on this ground.
9