Walker v. Sadd
MEMORANDUM OPINION AND ORDER ADOPTING AND AFFIRMING MAGISTRATE JUDGE'S 16 REPORT AND RECOMMENDATION, DISMISSING WITHOUT PREJUDICE § 2241 1 PETITION AND OVERRULING PETITIONER'S OBJECTIONS. It is ORDERED that this civil action b e 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 5/30/17. (copy to Pro Se Petitioner via CM/rrr) (lmm) (Additional attachment(s) added on 5/30/2017: # 1 Certified Mail Return Receipt) (lmm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 5:16CV136
J. SADD, Warden,
MEMORANDUM OPINION AND ORDER
ADOPTING AND AFFIRMING MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION,
DISMISSING WITHOUT PREJUDICE § 2241 PETITION
AND OVERRULING PETITIONER’S OBJECTIONS
The petitioner, Mischa Walker (“Walker”), filed this pro se1
petition under 28 U.S.C. 2241 attacking the validity of his
conviction and sentence.
The magistrate judge entered a report
recommending that Walker’s petition be summarily dismissed for lack
objections to the report and recommendation.
For the following
adopted and affirmed, Walker’s § 2241 petition is dismissed without
prejudice, and Walker’s objections are overruled.
possession of a firearm in violation of 18 U.S.C. § 922(g) before
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Dictionary 1416 (10th ed. 2014).
the United States District Court for the District of Maryland.
the plea agreement, Walker stipulated to a statement of facts,
providing that he fired a stolen, sawed-off shotgun outside his
residence, pointed the firearm at several neighbors, then went
Police arrived on the scene and found a spent shotgun
shell outside Walker’s front door.
Walker refused to exit the
residence, and the police forcibly removed him.
The police then
conducted a protective sweep and found a sawed-off shotgun in plain
view that was later determined to have been stolen.
change of plea hearing, the court reviewed this statement of facts
with Walker, and Walker affirmed that they were true.
accepted the plea agreement and sentenced Walker to 120 months of
Walker appealed his conviction and sentence to the United
Walker then filed a motion under 28 U.S.C. § 2255
challenging the validity of his conviction and sentence, alleging
he was provided ineffective assistance of counsel in violation of
the Sixth Amendment.
His motion was denied and he did not appeal.
Walker has now filed a motion under § 2241 asking this Court to
vacate his conviction and sentence on the ground that he is
actually innocent of his offense.
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 objection is timely made. Because Walker filed objections
recommendation will be reviewed de novo as to those findings to
objections were not filed, those findings and recommendations will
be upheld unless they are “clearly erroneous or contrary to law.”
28 U.S.C. § 636(b)(1)(A).
Magistrate Judge Michael John Aloi concluded that § 2241 is an
improper vehicle for Walker’s claims because he is challenging the
validity of his conviction and sentence and that Walker failed to
show that § 2255 was inadequate or ineffective to test the legality
of his conviction and sentence. Specifically, the magistrate judge
concluded that Walker’s conviction was legal at the time of his
guilty plea and that Walker cannot satisfy § 2255’s gatekeeping
provisions because he does not allege an intervening change in
However, the magistrate judge concluded that
Walker fails to established an intervening change in substantive
law that would negate the criminality of his conduct.
objects to this conclusion and it will be reviewed de novo.
A prisoner may file a motion under § 2255 to collaterally
attack the legality of his conviction or sentence.
§ 2255(a); Davis v. United States, 417 U.S. 333, 343 (1974).
generally, a prisoner may file a petition under § 2241 to challenge
only the manner in which a sentence is executed.
A prisoner may use § 2241 to collaterally attack the
legality of his conviction or sentence only if the remedy under
§ 2255 is “inadequate or ineffective.”
In re Jones, 226 F.3d 328,
332 (4th Cir. 2000); see also 28 U.S.C. § 2255(e).
Section 2255 is not inadequate merely because the prisoner has
been unable to obtain relief under § 2255.
1192, 1194 n.5 (4th Cir. 1997).
In re Vial, 115 F.3d
Nor is § 2255 rendered inadequate
because of a limitation bar, the prohibition against successive
petitions, or a procedural bar due to failure to raise the issue on
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
Jones, 226 F.3d at 333–34.
In his objections, Walker argues that Henderson v. United
States, 135 S. Ct. 1780 (2015), constitutes an intervening change
in substantive law that makes him actually innocent of his offense.
Walker argues that Henderson changed the elements for proving
constructive possession under § 922(g) such that the government
control over the firearm.
Walker argues that he was not in actual
possession of the sawed-off shotgun and that the government failed
proffer facts showing he specifically intended to exercise control
innocence. In Henderson, the Supreme Court held that § 922(g) does
not prohibit a court from approving the transfer of a felon’s
firearms so long as “that disposition prevents the felon from later
exercising control over those weapons, so that he could either use
them or tell someone else how to do so.”
Henderson, 135 S. Ct. at
The Court’s holding did not alter the elements of a
violation of § 922(g) and, thus, does not constitute an intervening
change in substantive law affecting Walker’s conviction.
possession is established when a person, though lacking such
physical custody, still has the power and intent to exercise
constructive possession is irrelevant to Walker’s conviction.
his plea agreement and at his plea hearing, Walker stipulated to
actually possessing, brandishing, and firing a sawed-off shotgun.
possession for Walker to be guilty. Accordingly, Henderson did not
alter the substantive law such that Walker’s conduct is no longer
Further, this Court finds no clear error in the magistrate
judge’s conclusion that Walker’s offense was a crime at the time of
his conviction and that Walker cannot satisfy § 2254’s gatekeeping
intervening change in substantive law that decriminalizes his
conduct, Walker fails to demonstrate that relief under § 2255 is
inadequate or ineffective, and this Court lacks subject matter
jurisdiction to consider his § 2241 petition.
For the above reasons, the magistrate judge’s report and
recommendation (ECF No. 16) is ADOPTED AND AFFIRMED.
§ 2241 petition (ECF No. 1) is DISMISSED WITHOUT PREJUDICE, and
Walker’s objections to the report and recommendation (ECF No. 18)
It is ORDERED that this civil action be DISMISSED
WITHOUT PREJUDICE and STRICKEN from the active docket of this
Should the plaintiff 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 30
days after the date of the entry of this order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se plaintiff 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
May 30, 2017
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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