Mason v. O'Brien

Filing 14

ORDER ADOPTING REPORT AND RECOMMENDATION: It is ORDERED that Petitioner's 4 Motion to Amend is granted; Magistrate Kaull's 11 Report and Recommendation is adopted; Petitioner's 13 Objections are overruled; Petitioner's 1 Motion is denied and dismissed with prejudice. The Clerk shall enter a separate judgment in favor of Respondent and this Court denies a certificate of appealability. Signed by Chief Judge John Preston Bailey on 12/16/13. (copy Petitioner)(cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS

STEPHON MASON,
Petitioner,
v.

Civil Action No. 2:13-CV-50
Judge Bailey

UNITED STATES OF AMERICA,
Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before the Court for consideration of
the Report and Recommendation (“R&R”) of United States Magistrate John S. Kaull
[Doc. 11], filed October 31, 2013. In that filing, the magistrate judge recommends that
this Court deny petitioner Stephon Mason’s Application for Habeas Corpus pursuant to
28 U.S.C. ' 2241 [Doc. 1], filed July 24, 2013.
Pursuant to 28 U.S.C. ' 636(b)(1)(C), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, the Court is not required to review, under a de novo or any other standard,
the factual or legal conclusions of the magistrate judge as to those portions of the
findings or recommendation to which no objections are addressed. Thomas v. Arn,
474 U.S. 140, 150 (1985). In addition, failure to file timely objections constitutes a
waiver of de novo review and the right to appeal this Court’s Order.

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28 U.S.C.

' 636(b)(1); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States
v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Here, objections to Magistrate Judge
Kaull’s R&R were due within 14 days of service, pursuant to 28 U.S.C. ' 636(b)(1). The
petitioner accepted service on November 4, 2013 [Doc. 12] and timely mailed
objections, which were received by this Court on November 15, 2013 [Doc. 13].
Accordingly, this Court will undertake a de novo review of those portions of the
magistrate judge’s findings to which objection is made.

The Court will review the

remainder of the R&R for clear error.
I.

Background
Insofar as Magistrate Judge Kaull has thoroughly outlined the relevant factual

and procedural history in his R&R, this Court repeats here only a condensed version of
that summary. On July 9, 2003 the petitioner was indicted in a multi-defendant case in
the United States District Court for the District of Maryland. Following a jury trial, on
July 20, 2004 the petitioner was convicted of possession of a firearm by a convicted
felon. The jury remained deadlocked on the four remaining counts pertaining to the
petitioner.

The petitioner was retried in June 2005 and convicted of the following

additional counts: conspiracy to distribute over five kilograms of cocaine and over fifty
grams of cocaine base; conspiracy to launder drug proceeds; money laundering;
possession with intent to distribute cocaine; and possession of a firearm in furtherance
of a drug trafficking crime. The petitioner was sentenced to life imprisonment plus five
years, to be followed by ten years of supervised release. His sentence was affirmed by
the United States Court of Appeals for the Fourth Circuit. United States v. Melvin,

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2007 WL 2046735 (4th Cir. July 13, 2007). In 2008, the petitioner’s Motion to Vacate,
Set Aside, or Correct Sentence pursuant to 28 U.S.C. ' 2255 was denied by the District
of Maryland and the appeal was dismissed as untimely by the Fourth Circuit. United
States v. Mason, 380 F. App’x 336 (4th Cir. 2010).1
On July 24, 2013, the petitioner filed the instant Application for Habeas Corpus
pursuant to 28 U.S.C. ' 2241 (“' 2241 Motion”) [Civ. Doc. 1]. The petitioner alleges
actual innocence on the ground that under the Fourth Circuit’s opinion in United States
v. Simmons, 649 F.3d 237 (4th Cir. 2011), he no longer has a qualifying prior conviction
to sustain the career sentencing enhancement.
On July 24, 2013, the petitioner filed a Motion to Amend [Doc. 4], claiming that
under the Supreme Court’s ruling in Alleyne v. United States, 133 S. Ct. 2151 (2013),
the petitioner’s sentence must be vacated as unconstitutional and remanded back to the
District Court for resentencing.
Magistrate Judge Kaull filed the instant R&R on October 31, 2013 [Doc. 11],
recommending that this Court deny and dismiss with prejudice the petitioner’s Motion to
Amend and dismiss with prejudice the Petition for Writ of Habeas Corpus.

The

petitioner timely objected [Doc. 13].

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The petitioner filed a second Motion to Vacate under 28 U.S.C. § 2255, which was
denied by the District Court for the District of Maryland because the petitioner did not
receive proper certification from the Fourth Circuit Court of Appeals for a second or
successive motion under 28 U.S.C. ' 2255.

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This Court will grant the Motion to Amend [Doc. 4] and has considered all of the
arguments contained therein. Even as amended, however, the defendant’s § 2241
Motion must be denied for a number of reasons.
II.

Discussion

A.

28 U.S.C. § 2241
Title 28 U.S.C. § 2241 provides a remedy when a prisoner “is in custody in

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3). The focus of § 2241 is upon the execution of a prisoner’s sentence, not
upon the validity of his conviction or sentence. Applications under 28 U.S.C. § 2255 are
the exclusive remedy for testing the validity of federal judgments and sentences unless,
under Section 2255’s savings clause, there is a showing that the remedy is inadequate
or ineffective to test the legality of detention. 28 U.S.C. § 2255(e); In Re Jones, 226
F.3d 328, 333 (4th Cir. 2000).
Section 2255 is inadequate and ineffective to test the legality of a conviction
when:
(1) at the time of the 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).

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B.

United States v. Simmons Claim
The petitioner’s objections state that “[u]nder Simmons, the prior convictions

used to impose a LIFE sentence are no-longer valid prior predicates to support such a
severe sentence therefore, Petitioner is actually innocent of his Life sentence which
satisfies the gatekeeping provision of § 2255.” [Doc. 13 at 2]. The petitioner argues that
the Fourth Circuit held that Simmons is retroactive in Miller v. United States, 735 F.3d
141, 147 (4th Cir. 2013).
While the petitioner correctly states that Miller holds that Simmons is retroactive
on collateral review, the petitioner fails to establish that he can utilize the savings clause
and § 2241 to pursue alleged sentencing errors.
The Fourth Circuit has specifically refused to allow petitioners to utilize § 2241 to
challenge their designation as a career offender where a petitioner challenges only the
validity of a sentence and not the legality of the underlying conviction:
Fourth Circuit precedent has . . . not extended the reach of the savings
clause to those petitioners challenging only their sentence. . . . See Darden v.
Stephens, 426 F. App’x 173, 174 (4th Cir. 2011) (“[O]ur cases have confined the
§ 2255 savings clause to instances of actual innocence of the underlying offense
of conviction....”); Little v. Hamidullah, 177 F. App'x 375, 375–76 (4th Cir. 2006)
(affirming district court's determination that a federal prisoner could not utilize
§ 2241 to pursue a “claim[ ] that he was ‘actually innocent’ of being a career
offender”); Boynes v. Berkebile, 2012 WL 1569563, at *6 (S.D. W.Va. May 1,
2012) (“[T]he Fourth Circuit has not broadened the parameters of the analysis of
the savings clause in Jones to encompass a challenge to a sentence based on a
sentenc[ing] guideline enhancement or a claim of ‘actual innocence’ of a
sentenc[ing] guideline enhancement.”).

Noggin v. Wilson, 2013 WL 5603226 (E.D. Va. Oct. 11, 2013).

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Further, the record fails to support the petitioner’s contention that he no longer
has a qualifying prior conviction to sustain the career sentencing enhancement. In his
original petition, the petitioner claims that he never received a term of imprisonment
greater than one year. The petitioner states he “was given a (3) years ‘suspended’
sentence with the exception of all but (9) months, which equates to a (9) month term of
imprisonment.” [Doc. 1-1 at 1].

Pursuant to Simmons, in evaluating whether a

defendant’s prior state conviction qualifies as a felony for purposes of sentencing, the
actual sentence imposed is irrelevant; rather, the relevant inquiry is whether the actual
defendant was subject to a potential sentence of greater than one year of imprisonment.
See United States v. Thompson, 480 F. App’x 201, 204 (4th Cir. 2012) (unpublished)
(rejecting the petitioner’s argument that Simmons did not apply to a suspended
sentence because “the actual sentence imposed is irrelevant; rather the relevant inquiry
is whether the actual defendant was subject to a potential sentence of greater than one
year of imprisonment”).
C.

Alleyne v. United States Claim
The petitioner’s Motion to Amend claims that his sentence must be vacated as

unconstitutional and he must be resentenced pursuant to Alleyne v. United States,
133 S. Ct. 2151 (2013). The R&R recommended the Court deny the claim because
Alleyne is not intended to be retroactively applied, and also because Alleyne is not
applicable to the petitioner’s case because it applies only to facts other than prior
conviction which increases the minimum penalty for a crime, whereas prior convictions
may be determined by a sentencing judge and need not be submitted to a jury. The

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petitioner claims in his objections that Alleyne “must be given full ‘retroactive’ effect to
case’s on collateral review, and treated as a ‘Watershed’ rule.” [Doc. 13 at 5].
In Alleyne, the Supreme Court held that any fact that increases a mandatory
minimum penalty for a crime is an element of the crime and must be submitted to the
jury and proven beyond a reasonable doubt. Id. At 2158 (emphasis added). Alleyne is
an extension of Apprendi v. New Jersey, 530 U.S. 466 (2000), which requires any fact
that increases the maximum penalty for an offense to be proven by the jury rather than
the judge.
The rule prescribes the manner in which a sentence is to be computed, but it
does not alter the range of conduct or the class of persons subject to criminal
punishment. Sanders v. Wilson, 2013 WL 3991469 (E.D. Va. Aug. 2, 2013). As such,
it is a procedural rather than a substantive change in the law. Id. (citing United States
v. Powell, 691 F.3d 554, 559–60 (4th Cir. 2012)). Further, all of the circuit courts of
appeals that have considered the issue have concluded that United States v. Booker,
the immediate predecessor to Alleyne, announced a procedural rule and hence does
not apply retroactively to cases on collateral review. United States v. Morris, 429 F.3d
65, 66 (4th Cir. 2005).
Accordingly, because the petitioner’s claim falls outside the § 2255 savings
clause, he may not proceed under § 2241. The application must instead be construed

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as a successive motion for relief under § 2255, which may not be brought unless
certified by a panel of the Fourth Circuit Court of Appeal.2
III.

Conclusion
Upon careful review of the record, it is the opinion of this Court that the

Petitioner’s Motion to Amend [Doc. 4] should be, and hereby is, GRANTED.

The

magistrate judge’s Report and Recommendation [Doc. 11], should be, and is, hereby
ORDERED ADOPTED for the reasons more fully stated therein.3

Further, the

petitioner’s Objections [Doc. 13] are OVERRULED. Accordingly, the petitioner’s Motion
Under 28 U.S.C. ' 2241 [Doc. 1] is hereby DENIED and DISMISSED WITH
PREJUDICE. As such, this Court DIRECTS the Clerk to enter judgment in favor of the
respondent and strike this case from the active docket of this Court. As a final matter,
upon an independent review of the record, this Court hereby DENIES a certificate of
appealability, finding that the petitioner has failed to make Aa substantial showing of the
denial of a constitutional right.” 28 U.S.C. ' 2253(c)(2).
It is so ORDERED.
The Clerk is directed to transmit a copy of this Order to counsel of record and to mail a
copy to the pro se petitioner.

2

The Court notes that even if the petitioner seeks certification by the Fourth
Circuit Court of Appeals to file a successive motion under § 2255, he will be unable to
obtain relief because, as discussed above, Courts that have examined the effect of
Alleyne have concluded that it is not retroactively applicable to matters raised on
collateral review.
3

Although the R&R recommends that the petitioner’s Motion to Amend be denied [Doc.
11], both the R&R and this Court considered all of the arguments contained therein,
therefore the Motion to Amend should be granted.

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DATED: December 16, 2013.

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