Walker v. Sadd

Filing 19

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
MISCHA WALKER,
Petitioner,
v.

Civil Action No. 5:16CV136
(STAMP)

J. SADD, Warden,
Respondent.
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
of

subject

matter

jurisdiction.

Walker

then

filed

timely

objections to the report and recommendation.

For the following

reasons,

recommendation

the

magistrate

judge’s

report

and

is

adopted and affirmed, Walker’s § 2241 petition is dismissed without
prejudice, and Walker’s objections are overruled.
I.
Walker

plead

guilty

to

Background
one

count

of

being

a

felon

in

possession of a firearm in violation of 18 U.S.C. § 922(g) before

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).

the United States District Court for the District of Maryland.

In

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
inside.

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.

At Walker’s

change of plea hearing, the court reviewed this statement of facts
with Walker, and Walker affirmed that they were true.

The court

accepted the plea agreement and sentenced Walker to 120 months of
imprisonment.
Walker appealed his conviction and sentence to the United
States

Court

affirmed.

of

Appeals

for

the

Fourth

Circuit,

and

it

was

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.

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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 objection is timely made. Because Walker filed objections
to

the

report

and

recommendation,

the

magistrate

judge’s

recommendation will be reviewed de novo as to those findings to
which

objections

were

made.

As

to

those

findings

to

which

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).
III.

Discussion

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
constitutional law.

However, the magistrate judge concluded that

Walker fails to established an intervening change in substantive
law that would negate the criminality of his conduct.

Walker

objects to this conclusion and it will be reviewed de novo.

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A prisoner may file a motion under § 2255 to collaterally
attack the legality of his conviction or sentence.

28 U.S.C.

§ 2255(a); Davis v. United States, 417 U.S. 333, 343 (1974).

But

generally, a prisoner may file a petition under § 2241 to challenge
only the manner in which a sentence is executed.
§ 2241(c).

28 U.S.C.

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
direct appeal.

Id.

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.
In his objections, Walker argues that Henderson v. United
States, 135 S. Ct. 1780 (2015), constitutes an intervening change

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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
must

establish

that

Walker

control over the firearm.

specifically

intended

to

exercise

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
over it.
However,

Henderson

has

no

affect

on

Walker’s

guilt

or

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.”
1786.

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.
Further,

while

the

Court

did

note

that

“[c]onstructive

possession is established when a person, though lacking such
physical custody, still has the power and intent to exercise
control

over

the

object,”

Henderson,

135

S.

Ct.

at

1784,

constructive possession is irrelevant to Walker’s conviction.

In

his plea agreement and at his plea hearing, Walker stipulated to
actually possessing, brandishing, and firing a sawed-off shotgun.

5

Thus,

the

government

did

not

need

to

establish

constructive

possession for Walker to be guilty. Accordingly, Henderson did not
alter the substantive law such that Walker’s conduct is no longer
a crime.
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
provisions.

However,

because

he

fails

to

demonstrate

an

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.
IV.

Conclusion

For the above reasons, the magistrate judge’s report and
recommendation (ECF No. 16) is ADOPTED AND AFFIRMED.

Walker’s

§ 2241 petition (ECF No. 1) is DISMISSED WITHOUT PREJUDICE, and
Walker’s objections to the report and recommendation (ECF No. 18)
are OVERRULED.

It is ORDERED that this civil action be DISMISSED

WITHOUT PREJUDICE and STRICKEN from the active docket of this
Court.
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

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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
matter.
DATED:

May 30, 2017

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

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