Le v. Williams

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATION DKT. NO. 14 AND DISMISSING WITH PREJUDICE THE PETITION FOR A WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 DKT. NO. 1 . The Court OVERRULES Les objections Dkt. No. 17 ; ADOPTS the R&R Dkt. No. [ 14]; DENIES the Petition Dkt. No. 1 ; and DISMISSES this case WITH PREJUDICE. The Court DIRECTS the Clerk to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 4/6/2017. (copy pro se petitioner via certified mail)(jmm) (Additional attachment(s) added on 4/6/2017: # 1 Certified Mail Return Receipt) (jmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TUAN LE,
Petitioner,
v.

CIVIL ACTION NO. 1:15CV153
(Judge Keeley)

CHARLES WILLIAMS,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 14]
AND DISMISSING WITH PREJUDICE THE PETITION FOR A WRIT
OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 [DKT. NO. 1]
On February 9, 2012, in the Eastern District of Pennsylvania,
the petitioner, Tuan Le (“Le”), pleaded guilty to various charges
stemming from his alleged participation in two armed robberies
(Dkt. Nos. 73; 74).1 These included one count of conspiracy to
interfere with commerce by robbery, in violation of 18 U.S.C.
§ 1951(a); two counts of aiding and abetting the interference with
interstate commerce by robbery, in violation of 18 U.S.C. § 1951(a)
and 2; and one count of aiding and abetting carrying and using a
firearm during and in relation to a crime of violence, in violation
of 18 U.S.C. § 924(c)(1) and 2 (Dkt. Nos. 18; 73). The district
court sentenced Le to a total term of 300 months of incarceration
(Dkt. No. 85). Thereafter, he pursued an unsuccessful direct
appeal, as well as an unsuccessful motion to vacate his conviction
under 28 U.S.C. § 2255 (Dkt. Nos. 109; 123; 128).

1

All citations in this paragraph reference Criminal Action
No. 2:10cr742 in the Eastern District of Pennsylvania.

LE V. WILLIAMS

1:15CV153

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 14]
AND DISMISSING WITH PREJUDICE THE PETITION FOR A WRIT
OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 [DKT. NO. 1]
On September 3, 2015, Le filed the pending Petition for Habeas
Corpus Pursuant to 28 U.S.C. § 2241 (“Petition”) (Dkt. No. 1). Le
is currently incarcerated in the Northern District of West Virginia
at Federal Correctional Institution, Gilmer, and he properly filed
the Petition in his district of confinement. Id. at 1; Rumsfeld v.
Padilla, 542 U.S. 426, 442-43 (2004). In the Petition, Le seeks to
have the Court vacate his conviction under 18 U.S.C. § 1951(a),
otherwise known as Hobbs Act robbery (Dkt. No. 1-1 at 19). In
support, he argues that he is actually and factually innocent of
the crime because the government failed to present proof that the
establishments at issue affected interstate commerce. Id. at 9. He
also

argues

that

the

government

violated

the

principles

of

federalism by prosecuting him, and that his attorney ineffectively
investigated

both

the

substance

of

the

indictment

and

the

circumstances of his case (Dkt. No. 1 at 5, 17).
Pursuant to 28 U.S.C. § 636 and LR PL P 2, the Court referred
the Petition to the Honorable Robert W. Trumble, United States
Magistrate Judge, for initial review. On June 8, 2016, Magistrate
Judge

Trumble

entered

a

Report

and

Recommendation

(“R&R”)

recommending that the Court deny and dismiss the Petition (Dkt. No.
15 at 6). He reasoned that Le cannot utilize § 2241, rather than
2

LE V. WILLIAMS

1:15CV153

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 14]
AND DISMISSING WITH PREJUDICE THE PETITION FOR A WRIT
OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 [DKT. NO. 1]
§ 2255, to attack his conviction because the conduct for which he
was convicted remains a criminal offense. Id.
When reviewing a magistrate judge’s R&R made pursuant to 28
U.S.C. § 636, the Court must review de novo only the portion of the
R&R to which an objection is timely made. 28 U.S.C. § 636(b)(1)(C).
Otherwise, “the Court may adopt, without explanation, any of the
magistrate judge’s recommendations to which the prisoner does not
object.” Dellacirprete v. Gutierrez, 479 F. Supp. 2d 600, 603-04
(N.D.W. Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th
Cir. 1983)). On June 24, 2016, Le filed timely objections to the
R&R, reasserting that he is “actually and factually innocent of the
Hobbs Act robbery” (Dkt. No. 17 at 5). He further argues that the
Supreme Court’s decision in Johnson v. United States, 135 S.Ct.
2551 (2015), renders void his conviction under 18 U.S.C. § 924(c)
(Dkt. No. 17 at 4). After de novo review of the R&R, the Court
finds that Le’s objections are without merit.
As outlined in the R&R, it is well established that challenges
to conviction and sentence validity are properly brought pursuant
to 28 U.S.C. § 2255. Rice v. Rivera, 617 F.3d 802, 807 (4th Cir.
2010); In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997). Only in
limited circumstances, when § 2255 is an “inadequate or ineffective
3

LE V. WILLIAMS

1:15CV153

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 14]
AND DISMISSING WITH PREJUDICE THE PETITION FOR A WRIT
OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 [DKT. NO. 1]
remedy,” § 2255's savings clause permits petitioners to bring a
collateral attack pursuant to § 2241. In re Vial, 115 F.3d at 1194
n.5; In re Jones, 226 F.3d 328, 333 (4th Cir. 2000). In the Fourth
Circuit, a petitioner may establish “that § 2255 is inadequate or
ineffective to test the legality of a conviction” if he can prove:
(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 at 333-34. Essentially, a prisoner must have
“had no opportunity to utilize a § 2255 motion to take advantage of
a change in the applicable law.” Rice, 617 F.3d at 807.
Here, as Magistrate Judge Trumble reasoned, Le simply has not
established that § 2255 is an inadequate or ineffective remedy
because he has not met the requirements articulated in In re Jones
(Dkt. No. 15 at 6). The only requisite change in substantive law
that he cites is the Supreme Court’s decision in Johnson v. United
States (Dkt. No. 17 at 4). That new rule, however, is one of
constitutional law and satisfies the gatekeeping provisions of

4

LE V. WILLIAMS

1:15CV153

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 14]
AND DISMISSING WITH PREJUDICE THE PETITION FOR A WRIT
OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 [DKT. NO. 1]
§ 2255. Rice, 617 F.3d at 807.2 Therefore, the Court concludes that
Le has not satisfied the stringent requirements to challenge his
conviction and sentence through § 2241, rather than § 2255.
For the reasons discussed, the Court:
1)

OVERRULES Le’s objections (Dkt. No. 17);

2)

ADOPTS the R&R (Dkt. No. 14);

3)

DENIES the Petition (Dkt. No. 1); and

4)

DISMISSES this case WITH PREJUDICE.

It is so ORDERED.
The Court DIRECTS the Clerk to enter a separate judgment order
and to transmit copies of this Order to counsel of record and to
the pro se petitioner by certified mail, return receipt requested.
DATED: April 6, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

2

Indeed, on June 15, 2016, the Federal Community Defender in
the Eastern District of Pennsylvania filed a § 2255 motion on Le’s
behalf in light of Johnson v. United States (E.D. Pa., Crim. No.
2:10cr742, Dkt. No. 133).
5