Lockhart v. Williams

Filing 21

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 16 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND OVERRULING THE 14 PETITIONER'S OBJECTIONS. The respondent's motion to dismiss 8 is GRANTED. The petitioner's petition is DISMISSED WITH PREJUDICE and the petitioner's objections are OVERRULED. It is further ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 12/11/15. (copy to Pro Se Petitioner via CM/rrr; counsel via CM/ECF) (lmm) (Additional attachment(s) added on 12/11/2015: # 1 Certified Mail Return Receipt) (lmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KEVIN B. LOCKHART,
Petitioner,
v.

Civil Action No. 5:15CV24
(STAMP)

C. WILLIAMS,
FCI Gilmer Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
AND OVERRULING THE PETITIONER’S OBJECTIONS
I.

Background

The pro se1 petitioner filed his petition under 28 U.S.C.
§ 2241 (“§ 2241”).

The petitioner was charged with conspiracy to

possess with intent to distribute cocaine and attempted possession
with intent to distribute cocaine in violation of 21 U.S.C. § 846.
On October 8, 1998 in the United States District Court for the
District of Rhode Island, the petitioner was sentenced to 360
months

incarceration,

release.

The

followed

petitioner

by

appealed

eight
his

years

of

conviction,

supervised
which

was

affirmed by the United States Court of Appeals for the First
Circuit.

In 2001, the petitioner filed a motion to vacate, set

aside, or correct his sentence under 28 U.S.C. § 2255 (“§ 2255”),

1

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).

which was denied.

In 2013, the petitioner attempted to attack his

sentence again, but his motion was denied as a successive § 2255
motion.
At issue now is the petitioner’s § 2241 petition.

In his

petition, the petitioner attacks his conviction by claiming that he
was wrongfully removed from the State of Rhode Island in violation
of

the

Uniform

Criminal

Extradition

Agreement on Detainers Act.

Act

and

the

Interstate

He contends that he is innocent, and

that his prior § 2255 motions were inadequate or ineffective to
test the legality of his detention.

For relief, the petitioner

requests that this Court immediately release him.

The respondent

filed a motion to dismiss, wherein he argues that the petitioner
failed to both exhaust his administrative remedies and to state a
claim upon which relief can be granted.

The petitioner filed a

response, labeled as a reply, wherein he reasserts his arguments.
The petitioner then filed a motion for summary judgment, wherein he
reasserts

his

claims

and

provides

numerous

exhibits.

The

respondent filed a response to the petitioner’s motion, arguing
that

the

petitioner

attempted

to

exhaust

his

administrative

remedies after he filed his petition.
United States Magistrate Judge James E. Seibert entered a
report

and

recommendation,

wherein

he

recommends

petitioner’s petition be dismissed with prejudice.

that

the

The magistrate

judge first points out that the petitioner is attacking his

2

conviction rather than the execution of his sentence. With that in
mind, the magistrate judge believes that the exhaustion of his
administrative

remedies

requirement

petitioner has not done so.

applies,

and

that

the

Further, the magistrate judge found

that the “savings clause” under 28 U.S.C. § 2255(e) does not apply
to the petitioner because a violation of 21 U.S.C. § 846 still
remains a criminal act.

For those reasons, the magistrate judge

recommends that the respondent’s motion to dismiss be granted and
the petitioner’s petition be dismissed with prejudice.
Following that report and recommendation, the petitioner filed
objections.

In his objections, the petitioner objects to the

construction

of

his

argument

by

the

magistrate

judge.

The

petitioner believes that he was unlawfully removed from Rhode
Island, and when viewed in conjunction with his drug offenses, this
forms the crux of why he is innocent.

He then attempts to invoke

elements of federalism and the Commerce Clause, which he contends
entitle this Court to apply the “savings clause” to his petition.
For the reasons set forth below, the report and recommendation
of

the

magistrate

judge

is

AFFIRMED

AND

ADOPTED,

and

the

petitioner’s objections are OVERRULED.
II.

Applicable Law

Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
to which an objection is timely made. Because the petitioner filed

3

objections to the report and recommendation, the magistrate judge’s
recommendation will be reviewed de novo.
III.
A.

Discussion

Failure to Exhaust Administrative Remedies
A § 2241 petition is used to challenge the “manner, location,

or conditions of the execution of a prisoner’s sentence.” Larue v.
Adams, 2006 WL 1674487, at *6 (S.D. W. Va. June 12, 2006) (citing
Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000)).

A

prisoner that sues “with respect to prison conditions” pursuant to
“any” federal law must first exhaust all available administrative
remedies, as required under the Prisoner Litigation Reform Act
(“PLRA”).

42 U.S.C. § 1997e(a); see McGee v. Warden, 487 F. App’x

516, 518 (11th Cir. 2012) (citing Winck v. England, 327 F.3d 1296,
1300 n.1 (11th Cir. 2003) (“[e]xhaustion of administrative remedies
is jurisdictional when a petition for habeas corpus is brought
pursuant to 28 U.S.C. § 2241 for release from federal prison)
(internal quotations omitted)). Generally speaking, “[e]xhaustion
is no longer left to the discretion of the district court, but is
mandatory.”

Woodford v. Ngo, 548 U.S. 81, 85 (2006).

exhaustion must occur “prior to filing § 2241 petitions.”
v. Shearin, 90 F. App’x 444, 445 (4th Cir. 2004).

Further,
McClung

The Bureau of

Prisons (“BOP”) has set forth such remedies “by which an inmate in
a federal prison may seek review of any aspect of imprisonment.”
Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986) (citing 28

4

C.F.R. § 542.10).

In the § 2241 context, however, exhaustion is

judicially imposed, meaning that courts at their discretion may
waive such requirement when warranted.
F. App’x 577 (6th Cir. 2004).

See Campbell v. Barron, 87

Exceptions to the exhaustion

requirement apply “only in extraordinary circumstances.” Fuller v.
Rich, 11 F.3d 61, 62 (5th Cir. 1994) (internal citations omitted).
The magistrate judge properly points out, however, that the
exhaustion requirement under the PLRA usually applies to civil
actions regarding conditions of confinement.

Here, the petitioner

is challenging his convictions rather than confinement. Therefore,
the exhaustion requirement remains within the discretion of this
Court.

Although this Court has discretion to waive the exhaustion

requirement, the petitioner’s case does not warrant it for two
reasons.

First, the petitioner did not attempt to exhaust his

administrative remedies before he filed his petition.
petitioner

has

not

shown

administrative remedies.

any

futility

in

Second, the

exhausting

his

The petitioner bears the burden of

demonstrating the futility of administrative review, and here he
has failed to meet that burden.

See, e.g., Gardner v. School Bd.

Caddo Parish, 958 F.2d 108, 112 (5th Cir. 1992).

Therefore, the

petitioner’s claim cannot proceed because he failed to exhaust his
administrative remedies and because no exception should apply.
Moreover, it is unclear whether petitioner objects to the finding
that he failed to exhaust his administrative remedies.

5

To the

extent that he does, the petitioner fails to demonstrate the
futility of exhausting his administrative remedies.

Thus, under

the discretion possessed by this Court, the petitioner has failed
to

both

exhaust

his

administrative

futility in attempting the same.

remedies

and

demonstrate

Accordingly, for those reasons

alone, the petitioner’s petition should be dismissed and his
objection to those findings overruled.
B.

Inapplicability of the Savings Clause
Notwithstanding that the petitioner failed to exhaust his

administrative

remedies,

clause” does not apply.

this

Court

also

finds

that

“savings

When a petitioner files a § 2241 petition

that challenges a federal conviction or sentence, courts often
construe that petition as a motion under § 2255.

See, e.g.,

Jiminian v. Nash, 245 F.3d 144, 148 (2d Cir. 2001); Pack v. Yusuff,
218 F.3d 448, 452 (5th Cir. 2000). However, a federal prisoner may
seek relief under § 2241 when a petition pursuant to § 2255 is
“inadequate or ineffective to test the legality of his detention.”
28 U.S.C. § 2255(e) (the “savings clause”); see In re Vial, 115
F.3d 1192, 1194 (4th Cir. 1997).

Under the savings clause, “the

remedy afforded by § 2255 is not rendered inadequate or ineffective
merely because an individual has been unable to obtain relief under
that provision, or because an individual is procedurally barred
from filing a § 2255 motion.”

In re Vial, 115 F.3d at 1194 n.5

6

(internal citations omitted).

Rather, § 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.
Jones, 226 F.3d at 333–34.
This Court finds that the petitioner fails to establish the
elements required by Jones.

Specifically, 21 U.S.C. § 846, the

substantive law under which the petitioner was convicted, has not
changed since the date of the petitioner’s conviction such that the
petitioner’s conduct would no longer be deemed criminal.
crimes

petitioner

was

convicted

of

still

remain

The

criminal.

Therefore, the petitioner cannot satisfy the second prong of the
Jones test and his § 2241 petition must be denied insomuch as it
challenges

his

conviction.

Further,

the

Fourth

Circuit

has

confined the use of the savings clause to “instances of actual
innocence

of

the

underlying

offense

innocence of a sentencing factor.”

of

conviction,

not

just

Petty v. O’Brien, No. 1:11CV9,

2012 WL 509852 at *2 (N.D. W. Va. Feb. 15, 2012) (quoting Darden v.
Stephens, 426 F. App’x 173, 174 (4th Cir. 2011) (per curiam)
(refusing to extend the savings clause to reach the petitioner’s

7

claim that he was actually innocent of being a career offender)).
Accordingly, the petition must be dismissed.
In his objections, the petitioner appears to object to how the
magistrate judge “construed” his argument as to the savings clause.
He

argues

that

“the

§

2241

petition

has

from

its

inception

principally advanced that Lockhart’s actual innocence as relates to
the federal § 846 offense and its being nonexistent offense are
based upon the principles of federalism and the deviation and
perversion

of

them

by

Congress’s

abandoning

the

traditional

safeguards of the Constitution’s Commerce Clause Powers.”
20.

ECF No.

In essence, it appears that he believes his unlawful removal

“usurped the State of Rhode Island’s sovereignty.”

That argument,

however, not only lacks merit but also fails to demonstrate his
innocence. Therefore, the savings clause does not apply, and thus,
his objection must be overruled.2
IV.

Conclusion

For the reasons set forth above, the magistrate judge’s report
and

recommendation

(ECF

No.

16)

is

AFFIRMED

AND

ADOPTED.

Therefore, the respondent’s motion to dismiss (ECF No. 8) is
GRANTED, and the petitioner’s motion for summary judgment (ECF No.

2

This Court is aware that the petitioner filed a reply in
support of his motion for summary judgment after the magistrate
judge entered his report and recommendation. ECF No. 18. After
reviewing the reply, this Court finds that the reply essentially
reasserts his initial arguments, and therefore does not affect or
alter this Court’s ruling.
8

14) is DENIED. Accordingly, the petitioner’s petition is DISMISSED
WITH PREJUDICE and the petitioner’s objections are OVERRULED.

It

is further 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 60
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
matter.
DATED:

December 11, 2015

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

9