Clay v. Saad

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATION 17 , GRANTING RESPONDENTS MOTION TO DISMISS 9 , AND DENYING AND DISMISSING PETITION WITHOUT PREJUDICE 1 : The Court: ADOPTS the R&R 17 ; OVERRULES Clays objections 20 ; GRANTS Warden Saads motion to dis miss 9 ; and DENIES and DISMISSES Clays Petition WITHOUT PREJUDICE 1 . The Court DIRECTS the Clerk to enter a separate judgment order. Signed by Senior Judge Irene M. Keeley on 1/10/17. (Attachments: # 1 Certified Mail Return Receipt)(jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
SAMUEL LEWACO CLAY,
Petitioner,
v.

//

CIVIL ACTION NO. 1:17CV109
(Judge Keeley)

JENNIFER SAAD, Warden,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 17],
GRANTING RESPONDENT’S MOTION TO DISMISS [DKT. NO. 9], AND
DENYING AND DISMISSING PETITION WITHOUT PREJUDICE [DKT. NO. 1]
On August 16, 2006, the pro se petitioner, Samuel Lewaco Clay
(“Clay”), pleaded guilty to possession with intent to distribute
crack

cocaine

sentencing

in

hearing

the

Eastern

on

December

District
11,

of

2006,

Kentucky.
the

At

district

his

court

classified Clay as a career offender under United States Sentencing
Guideline (“U.S.S.G.”) § 4B1.1 and sentenced him to 262 months of
incarceration. Since that time, Clay has unsuccessfully attacked
his conviction and sentence by direct appeal, a motion pursuant to
28 U.S.C. § 2255, two motions pursuant to 18 U.S.C. § 3582, and a
motion to file a second or successive § 2255 petition based on
Johnson v. United States, 135 S. Ct. 2551 (2015). Clay is presently
incarcerated at Federal Correctional Institution, Gilmer.
On June 20, 2017, Clay filed the pending Petition for Habeas
Corpus Pursuant to 28 U.S.C. § 2241 (“Petition”) (Dkt. No. 1). His
argument is two-fold. First, Clay argues that his due process
rights were violated when his sentencing court improperly applied

CLAY V. SAAD

1:17CV109

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 17],
GRANTING RESPONDENT’S MOTION TO DISMISS [DKT. NO. 9], AND
DENYING AND DISMISSING PETITION WITHOUT PREJUDICE [DKT. NO. 1]
the career offender enhancement. Id. at 6. Second, he argues that,
after the Supreme Court’s decision in Mathis v. United States, 136
S. Ct. 2243 (2016), his prior convictions in Kentucky no longer
qualify as predicate controlled substance offenses, thus rendering
him “actually innocent” of the career offender enhancement (Dkt.
No. 1 at 1, 8). Pursuant to 28 U.S.C. § 636 and the local rules,
the Court referred the Petition to the Honorable Michael J. Aloi,
United States Magistrate Judge, for initial review.
The respondent, Warden Jennifer Saad (“Warden Saad”), moved to
dismiss the Petition on August 3, 2017 (Dkt. Nos. 9; 10). In a
Report and Recommendation (“R&R”) entered on December 18, 2017,
Magistrate Judge Aloi recommended that the Court grant Warden
Saad’s motion and deny and dismiss the Petition without prejudice
(Dkt. No. 17). He reasoned that Clay cannot utilize § 2241, rather
than § 2255, to attack his sentence because the conduct for which
he was convicted remains a criminal offense. Id. at 11-12.
On January 8, 2018, Clay filed timely objections to the R&R
(Dkt. No. 20). In his objections, Clay summarizes the Supreme
Court’s decision in Mathis; argues that the Court should apply a
Sixth Circuit case regarding the scope of § 2241, Hill v. Masters,
836 F.3d 591 (6th Cir. 2016); and asks the Court to “provide him

2

CLAY V. SAAD

1:17CV109

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 17],
GRANTING RESPONDENT’S MOTION TO DISMISS [DKT. NO. 9], AND
DENYING AND DISMISSING PETITION WITHOUT PREJUDICE [DKT. NO. 1]
guides as to the proper vehicle in the matter and or grant him a
(90) day stay” for the purpose of obtaining counsel (Dkt. No. 20).
When reviewing a magistrate judge’s R&R, the Court must review
de novo only the portions to which an objection has been timely
made. 28 U.S.C. § 636(b)(1)(C). On the other hand, “the Court may
adopt,

without

recommendations

explanation,
to

which

any

the

of

the

prisoner

magistrate
does

not

judge’s
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)).
Courts will uphold those portions of a recommendation to which no
objection has been made unless they are “clearly erroneous.” See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005). Accordingly, the Court will review de novo those
portions of the R&R to which Clay has objected, and review for
clear error the remainder of the R&R. For the following reasons,
the Court concludes that Clay’s objections are without merit.
As outlined in the R&R, it is well established that challenges
to sentence validity, such as Clay’s Petition, 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 remedy,” § 2255's savings clause permits petitioners to
3

CLAY V. SAAD

1:17CV109

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 17],
GRANTING RESPONDENT’S MOTION TO DISMISS [DKT. NO. 9], AND
DENYING AND DISMISSING PETITION WITHOUT PREJUDICE [DKT. NO. 1]
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 Aloi reasoned, Clay simply has not
established that § 2255 is inadequate or ineffective because he has
not met the requirements articulated in In re Jones. In particular,
Clay has not even attempted to demonstrate that the conduct for
which he was convicted - possession with intent to distribute crack
cocaine - is no longer criminal (Dkt. No. 17 at 11-12). Clay merely
challenges the sentencing court’s application of U.S.S.G. § 4B1.1,
the career offender enhancement. “[W]hether or not the Petitioner’s
sentencing enhancement is valid,” however, “he has not demonstrated
4

CLAY V. SAAD

1:17CV109

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 17],
GRANTING RESPONDENT’S MOTION TO DISMISS [DKT. NO. 9], AND
DENYING AND DISMISSING PETITION WITHOUT PREJUDICE [DKT. NO. 1]
that a motion under § 2255 is inadequate or ineffective to assert
his claims,” and thus cannot utilize § 2241. Brandon v. Wilson, No.
3:16cv142, 2017 WL 707490, at *1 (N.D.W.Va. Feb. 22, 2017),
affirmed as modified, 699 F. App’x 283 (4th Cir. 2017).
Although several courts of appeals, including the circuit in
which Clay was convicted, have allowed certain sentences to be
challenged pursuant to § 2241, see Hill 836 F.3d 591, the R&R
properly concluded that the Petition is governed by the law of the
Fourth Circuit. Moreover, even if the Court were to apply the
“narrow” exception articulated by the Sixth Circuit in Hill, Clay
still would not be entitled to attack his sentencing enhancement
under § 2241 because he was sentenced after the Supreme Court’s
decision

in

United

States

v.

Booker

rendered

the

guidelines

advisory. See Pittman v. Quintana, No. 16-6857, 2017 WL 6759113, at
*2 (6th Cir. Sept. 18, 2017) (quoting Hill, 836 F.3d at 599-600).
Finally,

because

Clay

clearly

cannot

utilize

§

2241

to

challenge his sentence, staying this case for the purpose of
permitting Clay to retain counsel would be futile. Therefore, upon
review of the entire record, the Court:
1)

ADOPTS the R&R (Dkt. No. 17);

2)

OVERRULES Clay’s objections (Dkt. No. 20);

3)

GRANTS Warden Saad’s motion to dismiss (Dkt. No. 9); and
5

CLAY V. SAAD

1:17CV109

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 17],
GRANTING RESPONDENT’S MOTION TO DISMISS [DKT. NO. 9], AND
DENYING AND DISMISSING PETITION WITHOUT PREJUDICE [DKT. NO. 1]
4)

DENIES and DISMISSES Clay’s Petition WITHOUT PREJUDICE
(Dkt. No. 1).

It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and the pro se petitioner, certified mail and
return receipt requested, to enter a separate judgment order, and
to remove this case from the Court’s active docket.
DATED: January 10, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

6