Moore v. Kallis

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Petitioners Objections [Doc. 12 are OVERRULED. Accordingly, petitioners Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Doc. 1 is hereby DENIED and DISMISSED WITHOUT PREJUDICE. This Court further DIRECTS the Clerk to enter judgment in favor of the respondent and to STRIKE this case from the active docket of this Court. Signed by District Judge John Preston Bailey on 8/8/18. (njz) copy mailed to pro se pet via cert. return rec't mail (Additional attachment(s) added on 8/8/2018: # 1 Certified Mail Return Receipt) (njz).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS
EARL MOORE,
Petitioner,
v.

CIVIL ACTION NO. 2:17-CV-109
(BAILEY)

S. KALLIS, Warden,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before this Court for consideration of the
Report and Recommendation of United States Magistrate Judge James E. Seibert [Doc.
10]. Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge
Seibert for submission of a proposed report and recommendation (“R&R”). Magistrate
Judge Seibert filed his R&R on July 2, 2018, wherein he recommends this Court deny and
dismiss without prejudice petitioner’s § 2241 Petition [Doc. 1].
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. 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,

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94 (4th Cir. 1984). Here, objections to Magistrate Judge Seibert’s R&R were due within
fourteen (14) days of service, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b).
Petitioner timely filed his Objections on July 20, 2018 [Doc. 12]. Accordingly, this Court will
review the portions of the R&R to which the petitioner objects under a de novo standard of
review. The remainder of the R&R will be reviewed for clear error.
BACKGROUND
Petitioner does not object to the R&R’s recitation of the factual background and
procedural history. Thus, rather than reiterating such in detail, this Court will only briefly
summarize that which is most relevant.
On January 11, 2010, following trial in the Eastern District of Pennsylvania, a jury
found petitioner guilty of attempt to possess five kilograms or more of cocaine with the
intent to distribute, in violation of 21 U.S.C. § 846. On July 6, 2010, the district court
imposed a within-guideline range sentence of 360 months imprisonment, 8 years of
supervised release, and a $5,000 fine. In determining the appropriate guideline range,
petitioner’s offense level was raised from level 34 to level 37 because, based on his
criminal record, petitioner was found to be a career offender.
Petitioner’s direct appeal challenged both his conviction and sentence.

On

November 14, 2011, the United States Court of Appeals for the Third Circuit affirmed the
district court’s judgment. On April 23, 2012, petitioner filed a pro se § 2255 petition
asserting claims of ineffective assistance of counsel. On July 17, 2013, the district court
denied the § 2255 petition. On September 9, 2013, the Third Circuit dismissed petitioner’s
appeal of the district court’s denial of the § 2255 petition for failure to timely prosecute.
On June 16, 2016, petitioner, by counsel, filed a Notice of Filing of Protective § 2255
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which, relying on Johnson v. United States, 135 S.Ct. 2552 (2015), moved the court to
set aside the judgment in his case and correct his sentence. Petitioner, by counsel, then
moved to withdraw his pending § 2255 petition on March 22, 2017. On May 23, 2017, in
light of the Supreme Court’s decision in Beckles v. United States, 137 S.Ct. 886 (2017),
the Third Circuit denied petitioner’s application for a second or successive § 2255 petition.
On June 12, 2017, the district court dismissed the protective § 2255 petition in light of the
petitioner’s notice of withdrawal.
Petitioner’s instant § 2241 petition attacks his sentence under the savings clause of
§ 2255(e), relying on Alleyne v. United States, 570 U.S. 99 (2013), and Mathis v. United
States, 136 S.Ct. 2243 (2016).

Petitioner contends that the Supreme Court has

determined that his prior convictions no longer trigger the career offender penalty, and that
§ 2255 is inadequate or ineffective to test the legality of his detention after his previous
§ 2255 petition was unsuccessful. For relief, petitioner requests this Court vacate his
sentence and resentence him under the “correct” guideline range.
APPLICABLE LAW
Where, as here, a petitioner seeks to attack the imposition of his sentence rather
than its execution, he may only seek a writ of habeas corpus pursuant to § 2241 by
demonstrating that § 2255 is “inadequate or ineffective to test the legality of his detention.”
28 U.S.C. § 2255(e) (the “savings clause”); see also In re Jones, 226 F.3d 328 (4th Cir.
2000). Relief under § 2255 is not inadequate or ineffective merely because relief has
become unavailable under § 2255 because of a limitation bar, the prohibition against
successive petitions, or a procedural bar due to failure to raise the issue on direct appeal.

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In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997).
In United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), the Fourth Circuit held
that § 2255 is inadequate or ineffective to test the legality of a sentence when all of the
following four conditions are met:
(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.
886 F.3d at 429 (citing In re Jones, 226 F.3d at 333–34).
DISCUSSION
Magistrate Judge Seibert recommends that this Court deny and dismiss petitioner’s
§ 2241 petition for lack of jurisdiction, stating that “[b]ecause the Petitioner attacks the
validity of his sentence, but fails to establish that he meets all four prongs of the Wheeler
savings clause test for erroneous sentences, the Petitioner cannot demonstrate that § 2255
is an inadequate or ineffective remedy and has improperly filed his petition under § 2241
with respect to his sentence” [Doc. 10 at 11]. Magistrate Judge Seibert determined that
petitioner could not meet the second element of the Wheeler test “because any change to
the settled law which established the legality of the Petitioner’s sentence has not been
deemed to apply retroactively to cases on collateral review” [Id. at 9]. Specifically,
Magistrate Judge Seibert found that the cases petitioner relies on—Mathis, Alleyne, and
Descamps v. United States, 570 U.S. 254 (2013)—do not apply retroactively on collateral
review in this circuit [Id. at 9–11].
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Petitioner presents two objections.

First, petitioner argues Magistrate Judge

Seibert’s determination that Mathis does not apply retroactively on collateral review in this
circuit is “wrong” [Doc. 12 at 1–2]. Petitioner relies on Graham v. United States, 276
F.Supp.3d 509 (D.S.C. 2017), to support this assertion. In Graham, the United States
District Court for the District of South Carolina concluded “that Mathis announced an old
rule, which is applicable on collateral review pursuant to Whorton [v. Bockting, 549 U.S.
406 (2007)] and Teague [v. Lane, 489 U.S. 288 (1989)].” 276 F.Supp.3d at 513.
This Court, along with other district courts in this circuit, have held that Mathis does
not represent a substantive change in the law. See, e.g., Gutierrez v. United States, 2018
WL 2416585, at *2 (N.D. W.Va. May 29, 2018) (Keeley, J.) (“Put simply, Mathis sets forth
a ‘procedural rule that has not been made retroactive on collateral review.’” (quoting Fisher
v. Rickard, 2018 WL 1405324, at *4 (S.D. W.Va. Feb. 16, 2018), report and
recommendation adopted, 2018 WL 1404279 (S.D. W.Va. Mar. 20, 2018))); Richards v.
Kallis, 2018 WL 3596043, at *2 (N.D. W.Va. July 26, 2018) (Stamp, J.) (“To meet the
second prong of Wheeler, the petitioner must show that a change in substantive law
applied retroactively to their sentence. The magistrate judge correctly noted that the cases
on which petitioner relies, Mathis and Hinkle, do not meet this requirement because
neither are retroactive. Thus, the magistrate judge correctly found that the petitioner’s
claims may not be considered under a § 2241 petition.”); Stewart v. United States, 2017
WL 2361089, at *5 (D. Md. May 31, 2017) (recognizing that Mathis did not announce a new
substantive rule applicable to cases on collateral review). Further, the United States Court
of Appeals for the Fourth Circuit has stated the following:
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In his § 2241 petition, [petitioner] sought to challenge his career offender
designation based on Mathis . . . . However, Mathis merely clarified when
a court must apply the categorical approach, rather than the modified
categorical approach, in determining the nature of a prior conviction, and did
not effect a change in the law. Muhammad v. Wilson, 715 F. App’x 251,
252 (4th Cir. 2017) (“Mathis did not announce a substantive change to the
law.”). [Petitioner], therefore, cannot bring this challenge in a § 2241 petition.
Davis v. Andrews, 727 Fed. App’x 782 (4th Cir. 2018) (unpublished per curiam opinion).
Thus, this Court finds the magistrate judge’s determination that Mathis was not a
substantive change in the law to be applied retroactively, and therefore petitioner could not
bring a challenge to his career offender designation based on Mathis in a § 2241 petition,
to be correct. To the extent the United States District Court for the District of South
Carolina reached a different conclusion in Graham, such decisions are not binding on this
Court.1 Accordingly, this objection is OVERRULED.
Petitioner’s second objection is that “the Magistrate’s R&R apparently misreads
[petitoner’s] use of the decision in Alleyne v. United States, 133 S.Ct. 2151 (2013), that
is, [petitioner] is not attempting to rely on it as retroactive, but only its acknowledgment to
the significance of a mis-applied mandatory minimum . . .” [Doc. 12 at 2]. This Court, of
course, acknowledges the significance of the Alleyne decision, but Alleyne bears no
significance for petitioner’s case here. As the magistrate judge correctly points out, “[t]he
Petitioner’s status as a career offender is based on prior convictions. The rule set out in
Apprendi [v. New Jersey, 530 U.S. 466 (2000)], and extended by Alleyne, does not apply
to prior convictions” [Doc. 10 at 11]; see Wheeler, 886 F.3d at 431 n.8 (“Alleyne bars

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This Court also notes that the district court in Graham was considering a § 2255,
rather than a § 2241, petition.
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‘judicial factfinding that increases the mandatory minimum sentence for a crime,’ 133 S.Ct.
at 2155, but the Court left undisturbed the ‘narrow exception to this general rule for the fact
of a prior conviction,’ id. at 2160 n.1; see Almendarez-Torres, 523 U.S. 224, 226 (1998)
(A ‘penalty provision’ that ‘authorizes a court to increase the sentence for a recidivist’ based
on a prior conviction ‘does not define a separate crime.’)”); see also United States v.
Richardson, 2013 WL 3991474 (E.D. Va. Aug. 2, 2013); Lansdowne v. Wilson, 2013 WL
5770528 (E.D. Va. Oct. 22, 2013). Thus, no matter what petitioner intended by his single
mention of the Alleyne decision [Doc. 8 at 3], Alleyne is not helpful to petitioner here.
Accordingly, this objection is also OVERRULED.
Therefore, having overruled petitioner’s objections and finding no clear error in the
remainder of the R&R, this Court finds that the magistrate judge correctly found that the
petitioner’s claims may not be considered under a § 2241 petition. Because petitioner
cannot satisfy the requirements articulated in Wheeler, the savings clause offers the
petitioner no relief, and this Court must dismiss for want of jurisdiction. Wheeler, 886 F.3d
at 423 (“[W]e hold that the savings clause is a jurisdictional provision.”).
CONCLUSION
Upon careful review of the record, it is the opinion of this Court that Magistrate
Judge Seibert’s Report and Recommendation [Doc. 10] should be, and is, hereby
ORDERED ADOPTED for the reasons more fully stated in the report. Further, petitioner’s
Objections [Doc. 12] are OVERRULED. Accordingly, petitioner’s Petition for Habeas
Corpus Pursuant to 28 U.S.C. § 2241 [Doc. 1] is hereby DENIED and DISMISSED
WITHOUT PREJUDICE. This Court further DIRECTS the Clerk to enter judgment in favor

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of the respondent and to STRIKE this case from the active docket of this Court.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record and
to mail a copy to the pro se petitioner.
DATED: August 8, 2018.

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