Muhammad v. Purdue
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE re 27 Report and Recommendation : Denying 33 Motion ; Denying 34 Motion ; Granting 13 Motion to Dismiss; Granting 13 Motion for Summary Judgment; Denying and Dismissing With Prejudice 1 Petition for WHC; and Dismissing and Striking this civil action from the active docket of this Court. Clerk directed to enter Judgment pursuant to FRCP 58. Signed by Senior Judge Frederick P. Stamp, Jr on 8/23/13. (copy to Petitioner by cert. mail)(soa) (Additional attachment(s) added on 8/23/2013: # 1 Certified Mail Return Receipt) (soa).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ABDUL-AZIZ RASHID MUHAMMAD,
Civil Action No. 5:12CV129
RUSSELL A. PURDUE, Warden
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
On August 24, 2012, the petitioner filed a pro se1 petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
petitioner challenges the validity of the sentence resulting from
his 1990 conviction in the Eastern District of Kentucky.
petitioner was convicted by a jury in that court in 1990 of
conspiracy to rob a bank and to use firearms during the commission
of a felony, in violation of 18 U.S.C. § 371; aiding and abetting
an armed bank robbery, in violation of 18 U.S.C. §§ 2113(a)(d) and
2; using a firearm in the commission of a felony, in violation of
18 U.S.C. §§ 924(c) and 2(a)(b); and possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and
The petitioner was sentenced to 327 months in prison
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Dictionary 1341 (9th ed. 2009).
followed by a twenty-year mandatory consecutive sentence.
mandatory consecutive sentence was imposed as a result of the
petitioner’s conviction under 18 U.S.C. § 924(c), which mandates
such a sentence for those convicted of a second or subsequent
violation under that section.
The petitioner asserts that this
consecutive sentence imposed pursuant to § 924(c) improperly relied
upon a 1974 Eastern District of Kentucky conviction.
In 1974, when the petitioner was a juvenile known as William
Anthony Brown, he was convicted by a jury of armed robbery in
violation of 18 U.S.C. §§ 2113(a)(d) and 924(c).2
court sentenced the petitioner to twenty years in prison for the
robbery conviction, and an additional one-year term for the use of
petitioner’s conviction and one-year sentence for the § 924(c)
firearm offense pursuant to Simpson v. United States, 435 U.S. 6
(1978), which held that “in a prosecution growing out of a single
transaction of bank robbery with firearms, a defendant may not be
sentenced” under both § 2113(d) and 924(c).
Id. at 16.
Following the petitioner’s 1990 sentencing, the petitioner
appealed, and his conviction and sentence were affirmed by the
United States Court of Appeals for the Sixth Circuit on October 30,
The United States Supreme Court denied a petition for writ
Although the petitioner was a juvenile at the time, he was
charged, tried and sentenced as an adult.
of certiorari on February 24, 1992.
Thereafter, the petitioner
began to file numerous post-conviction challenges to his conviction
and sentence which are outlined at length in the magistrate judge’s
report and recommendation.
See ECF No. 27 *3-*4.
The petitioner’s September 12, 2011 filing with the Eastern
District of Kentucky was the first time that petitioner raised the
same arguments he makes here, that his 1990 consecutive sentence
was improperly based upon his 1974 § 924(c) conviction, which he
claims that he only discovered had been vacated on August 2, 2011.
This challenge, which was characterized as a motion for leave to
file a successive petition for a writ of habeas corpus under § 2255
and transferred to the Sixth Circuit for consideration of the same,
was denied by the Sixth Circuit. In denying this motion, the Sixth
Circuit found that the petitioner had failed to explain why he
could not find this “newly discovered evidence” prior to his first
§ 2255, filed in 1997, eighteen years after his 1974 § 924(c)
conviction was vacated. Accordingly, the Sixth Circuit determined,
the petitioner’s claim regarding his 1974 conviction under § 924(c)
was not “newly discovered evidence,” and his arguments were based
upon an inaccurate statement of relevant procedural history.
The petitioner then filed this petition under 28 U.S.C.
§ 2241, and pursuant to Local Rule of Prisoner Litigation Procedure
2, the petition was referred to United States Magistrate Judge John
S. Kaull for initial review and report and recommendation.
a preliminary review, the magistrate judge ordered the respondent
to answer, and the respondent filed a motion to dismiss, or
responded to the motion following the issuance of a Roseboro3
notice, and Magistrate Judge Kaull entered a report recommending
that the petitioner’s § 2241 petition be denied and dismissed with
prejudice based upon his finding that a § 2241 petition is not
available to this petitioner as a vehicle by which to obtain the
contentions contained within his petition and asserting that the
magistrate judge’s recommendation is “predicated upon an erroneous
misapplication of the law and facts.”
ECF No. 29 *1 (emphasis in
For the reasons set forth below, this Court finds that
the report and recommendation by the magistrate judge must be
affirmed and adopted, and the petitioner’s § 2241 petition must be
denied and dismissed with prejudice.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
recommendation to which objection is timely made. Because the
Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975)
(finding that the court must inform a pro se petitioner of his
right to file material in response to a motion for summary
petitioner filed objections to the report and recommendation, the
Magistrate Judge’s recommendation will be reviewed de novo.
The magistrate judge recommends that the petitioner’s § 2241
motion be dismissed because § 2241 is an improper vehicle for the
petitioner’s claims, since the petitioner cannot show that § 2255
provides an inadequate or ineffective remedy for his claims.
magistrate judge found that the petitioner attacks the validity of
his sentence rather than the means of its execution, and such
challenges must be brought pursuant to 28 U.S.C. § 2255 rather than
28 U.S.C. § 2241.
The magistrate judge found that the petitioner
cannot rely upon the “savings clause” in § 2255 which permits
certain claims to be brought under § 2241 because the petitioner
has failed to demonstrate that 28 U.S.C. § 2255 afforded an
inadequate or ineffective remedy.
Having reviewed the magistrate
judge’s report and recommendation de novo, this Court agrees that
the petitioner improperly challenges his sentence under § 2241.
A petition for a writ of habeas corpus under § 2241 must
attack the manner in which a sentence is executed.
challenging a federal conviction or sentence are properly construed
as motions pursuant to § 2255. However, a federal prisoner seeking
to challenge a federal conviction or sentence may seek relief
pursuant to 28 U.S.C. § 2241 when a petition pursuant to § 2255 is
“inadequate or ineffective to test the legality of his detention.”
28 U.S.C. § 2255; In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997).
However, the remedy afforded by § 2255 is not rendered 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.
In re Vial, 115 F.3d at 1194 n.5
(citing Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988)).
In this case, the petitioner has failed to establish that he
is entitled to relief through the savings clause. The petitioner’s
sole argument is that the consecutive twenty-year sentence that he
received in 1990 for a successive conviction under § 924(c) was
erroneous, because his original § 924(c) conviction in 1979 was
vacated by the Eastern District of Kentucky pursuant to Simpson.
He argues that, accordingly, he is entitled to utilize the savings
successive § 924(c) conviction.
U.S. 614, 624 (1998).
See Bousley v. United States, 523
The petitioner’s argument in this regard is
conviction was on legal rather than factual grounds.
Id. (emphasis added).
The Fourth Circuit has
directly found that predicate offenses which have been vacated on
a legal, rather than factual innocence, basis cannot lead to a
finding of actual innocence.
See United States v. Pettiford, 612
F.3d 270, 284 (4th Cir. 2010).
Just like the defendant in
Pettiford, the petitioner here makes no claim that he did not
commit the crime of which he was convicted in 1974,4 but rather
argues that because it was vacated on legal grounds, it should not
have counted as a predicate offense under § 924(c).
Such a claim
does not support a finding of actual innocence, and thus, the
petitioner is not entitled to rely upon the savings clause, and
thus cannot utilize § 2241 to bring the allegations raised in his
Following the filing of his objections to the magistrate
judge’s report and recommendation, as well as his “surrebutter” to
the respondent’s response to his objections, the petitioner filed
following the magistrate judge’s report and recommendation.
Court must deny each of these motions as untimely filed.
U.S.C. § 636(b).
Further, neither of the decisions cited by the
petitioner, United States v. Tavera, 719 F.3d 705 (6th Cir. 2013),
In a filing by the petitioner entitled “surrebutter [sic] to
respondent’s response to petitioner’s objection to magistrate’s
report and recommendation,” the petitioner suggest that “the court
cannot assume that Petitioner committed a prior crime.” ECF No. 32
The petitioner misconstrues the burden placed upon him in
establishing actual innocence pursuant to the savings clause. In
proving a claim of actual innocence, the petitioner cannot simply
assert a lack of evidence of guilt, but must rather affirmatively
“show actual innocence by clear and convincing evidence.”
Pettiford, 612 F.3d at 282.
and Alleyne v. United States, 133 S. Ct. 2151 (2013), are relevant
to the petitioner’s case or this Court’s rulings thereon.
Tavera, the United States Court of Appeals for the Sixth Circuit
held that defendants in criminal matters have no duty to uncover
exculpatory evidence, or to do any “due diligence” to discover the
Rather, the United States is charged with an affirmative
duty to turn over any such evidence in its possession.
uncovered the fact that his 1974 § 924(c) conviction had been
overturned by the Eastern District of Kentucky.
Tavera is inapplicable.
Further, the petitioner has ineffectively raised Alleyne and,
even if he had effectively raised the same, Alleyne would not be
applicable to the petitioner’s case.
In the recently decided
Alleyne, a defendant was convicted by a jury of using or carrying
a firearm in relation to a crime of violence under § 924(c)(1)(A),
defendant had brandished the firearm and sentenced the defendant to
a seven-year sentence based upon a mandatory minimum in accordance
with the brandishing finding.
133 S. Ct. at 2151.
States Supreme Court held that the brandishing determination by the
sentencing judge was improper because any factual issue triggering
a statutory mandatory minimum sentence must be submitted to a jury,
rather than determined by a judge at sentencing, because “the core
crime and the fact triggering the mandatory minimum sentence
together constitute a new, aggravated crime, each element of which
must be submitted to a jury.”
Id. at 2162.
This holding extended the Supreme Court’s prior holding in
Apprendi v. New Jersey, 530 U.S. 466 (2000), where the Court found
that any fact which increased the statutory maximum penalty for a
crime as applicable to a specific defendant must be submitted to
and decided by a jury.
See Simpson v. United States, No. 13-2373
2013 U.S. App. LEXIS 13902 *1 (7th Cir. July 10, 2013) (noting that
Alleyne is an extension of Apprendi). First, the petitioner cannot
now, following the filing of his petition, the full briefing of the
respondent’s motion to dismiss, and multiple objections to the
magistrate judge’s report and recommendation, claim that Alleyne is
applicable to his case when he has never, before this Court or any
other, raised Apprendi or the general argument that the fact of his
previous conviction was never submitted to a jury.
number of courts that have considered the question thus far have
found that Alleyne, in that it is a mere extension of Apprendi, is
not intended to be retroactively applied.
See id., United States
v. Reyes, No. 2:11cv6234, 2013 U.S. Dist. LEXIS 112386 *49-*56
(E.D. Pa. Aug. 8, 2013); United States v. Eziolisa, No. 3:10cr39,
2013 U.S. Dist. LEXIS 102150 *3 (S.D. Ohio July 22, 2013); United
States v. Stanley, No. 09-0022, 2013 U.S. Dist. LEXIS 98943 *7
(N.D. Okla. July 16, 2013; Affolter v. United States, No. 13-14313,
2013 U.S. Dist. LEXIS 104835 *2 (E.D. Mo. July 26, 2013).
Finally, in Apprendi, the Supreme Court specifically noted in
its finding that “any fact (other than prior conviction) which
increases the maximum penalty for a crime must be . . . submitted
to a jury.”
530 U.S. at 476 (quoting Jones v. United States, 526
That the fact of prior convictions need not be
submitted to a jury was further explained in Almendarez-Torres v.
United States, 523 U.S. 224 (1998), where the Court affirmatively
determined that the fact of a prior conviction may be determined by
a sentencing judge.
The Court in Alleyne specifically declined to
reconsider or overrule Almendarez-Torres.
133 S. Ct. at 2160 n.1.
Accordingly, Almendarez-Torres remains good law, and Alleyne is not
applicable to the petitioner’s assertions in this matter.
recommendation de novo, this Court hereby AFFIRMS and ADOPTS the
objections are OVERRULED. The petitioner’s supplemental motions in
light of decisions rendered (ECF Nos. 33 and 34) are DENIED.
alternative, motion for summary judgment (ECF No. 13) is GRANTED.
Further, petitioner’s petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2241 is DENIED and DISMISSED WITH PREJUDICE.
ORDERED that this civil action be DISMISSED and STRICKEN from the
active docket of this Court.
Should the petitioner choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made, he is ADVISED that he
must file a notice of appeal with the Clerk of this Court within
sixty days after the date of the entry of the judgment order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner by certified mail and to
counsel of record herein.
Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is DIRECTED to enter judgment on this
August 23, 2013
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?