Clark v. Wilson

Filing 50

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 36 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND OVERRULING 47 PETITIONERS OBJECTIONS. Accordingly, 16 respondents motion to dismiss is GRANTED, 1 petitioners petition for writ of habea s corpus under 28 U.S.C. § 2241 is DENIED, and the petitioners; the petitioners pending 30 motion to file a second supplement to his petition is DENIED AS MOOT and his 49 motion to supplement his memorandum of law is DENIED as untimely. It i s further ORDERED that this case be DISMISSED WITHOUT PREJUDICE and STRICKEN from the active docket of this Court. Should the petitioner choose to appeal, he is ADVISED that he must file a notice of appeal with the Clerk of Court within 60 days afte r the date of the entry of this order. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 9/19/2018. (copy to Pro Se Petitioner via CM,rrr; copy to counsel via CM/ECF) (nmm) (Additional attachment(s) added on 9/19/2018: # 1 Certified Mail Return Receipt) (nmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JAMES EDWARD CLARK,
Petitioner,
v.

Civil Action No. 5:16CV179
(STAMP)

DAVID R. WILSON, Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
AND OVERRULING PETITIONER’S OBJECTIONS
I.

Procedural History

The pro se1 petitioner, James Edward Clark (“Clark”), an
inmate then incarcerated at FCI Hazelton2 in Bruceton Mills, West
Virginia, filed a petition for habeas corpus under 28 U.S.C. § 2241
(“§ 2241”) challenging the validity of his sentence, imposed in the
United

States

District

Court

for

the

Eastern

District

of

Pennsylvania.3 The action was referred to United States Magistrate

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).
2

Petitioner Clark is now incarcerated at FCI Fort Dix in Fort
Dix, New Jersey.
3

Petitioner was convicted in the Eastern District of
Pennsylvania
on
Count
One,
attempting
to
manufacture
methamphetamine, in violation of 21 U.S.C. § 846, and Count Two,
possession of red phosphorus, a precursor chemical used in the
illegal manufacture of methamphetamine, in violation of 21 U.S.C.
§ 841(c)(1). See United States v. Clark, No. 08-508-01, 2015 WL
765984 (E.D. Pa. Feb. 24, 2015).

Judge

Michael

recommendation
Procedure

John

Aloi

pursuant

2.

The

for

to

initial

Local

magistrate

review

Rule
judge

of

and

report

Prisoner

filed

a

and

Litigation
report

and

recommendation recommending that respondent’s motion to dismiss be
granted and that this matter be dismissed without prejudice.
No. 36.

ECF

The magistrate judge informed the parties that if they

objected to any portion of the report and recommendation, they were
required to file written objections within 14 days after being
served with copies of the report. The petitioner filed objections.
ECF No. 47.
II.
In

his

petition,

the

Facts

petitioner

argues

that

his

prior

conviction for burglary of a dwelling under Pennsylvania law is no
longer

considered

guidelines.

a

crime

ECF No. 1 at 5-7.

of

violence

under

the

For relief, the petitioner seeks to

be re-sentenced without a career offender designation.
at 8.

sentencing

ECF No. 1

In bringing these claims under a § 2241 petition, the

petitioner contends that a petition under 28 U.S.C. § 2255 “is
inadequate or ineffective because [the petitioner] is challenging
the execution of his sentence rather than his conviction.” ECF No.
1 at 9.
The petitioner then filed a motion to supplement his petition.
ECF No. 9.

In that motion, the petitioner asks this Court to

consider Castendet-Lewis v. Sessions, 855 F.3d 253 (4th Cir. 2017).

2

The petitioner appears to argue that Castendet-Lewis supports his
argument that he should be re-sentenced under Mathis v. United
States, 136 S. Ct. 2243 (2016).
The respondent, the Warden of FCI Hazelton, filed a motion to
dismiss.

ECF No. 16.

The respondent argues that because the

petitioner is challenging the legality of his sentence, he is
barred from bringing such a claim under § 2241 unless he can show
that a petition under § 2255 would be inadequate or ineffective.
ECF No. 17 at 4.

The respondent argues that the petitioner cannot

meet this standard because the savings clause of § 2255 does not
extend to sentencing calculations. ECF No. 17 at 4-5 (citing In re
Jones, 226 F.3d 328 (4th Cir. 2000)).

Further, the respondent

emphasizes that Mathis did not announce a new rule on which the
petitioner may rely.

ECF No. 17 at 5-6.

The petitioner filed a response to the motion to dismiss. ECF
No. 21.

The petitioner asserts that he has demonstrated § 2255 is

inadequate or ineffective. ECF No. 21 at 3. The petitioner argues
that the savings clause of § 2255 applies when a petitioner is
arguing actual innocence, and that here the petitioner is claiming
he is “actually innocent of being categorized as a [c]areer
[o]ffender.”

ECF No. 21 at 4.

The petitioner does not address the

respondent’s argument that Mathis did not create a new rule.
The petitioner filed a motion to file a second supplement to
his petition.

ECF No. 30.

In that

3

motion, the petitioner asks

this Court to consider Sessions v. Dimaya, 138 S. Ct. 1204 (2018).
The petitioner argues that this case “further clarified that
[b]urglary is [n]on-[v]iolent for enhancement purposes.”

ECF No.

30 at 2.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule of
Prisoner Litigation 2, this case was referred to United States
Magistrate Judge Michael John Aloi.

The magistrate judge then

entered a report and recommendation.

ECF No. 36.

recommendation,

recommended

the

magistrate

judge

In that
that

the

respondent’s motion to dismiss be granted and the petitioner’s
§ 2241 petition be dismissed without prejudice.

ECF No. 36 at 13.

The magistrate judge found that the petitioner’s claim is not
properly brought under § 2241 because the claim relates to the
validity of his sentence and is a successive attempt to obtain
relief under § 2255.

ECF No. 36 at 10-11.

Thus, the magistrate

judge recommended the petition be denied and dismissed without
prejudice.

ECF No. 36 at 13.

On July 24, 2018, the petitioner filed a motion for extension
of time to file objections to the magistrate judge’s report and
recommendation.

ECF No. 40.

The petitioner argued that he needed

additional time to respond to the report and recommendation because
of accessibility issues with the prison law computers and law
library.

ECF No. 40.

This Court granted the motion and gave the

petitioner until August 12, 2018 to file objections.

4

ECF No. 41.

Petitioner then filed his “response to the magistrate court’s
report and recommendation.”
document

styled

ECF No. 47.

“permission

to

petitioners memorandum of law.”

add

Petitioner also filed a
newly

decided

case

to

ECF No. 49

For the reasons that follow, this Court finds that the report
and recommendation of the magistrate judge should be adopted in its
entirety.
III.

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
objections to the report and recommendation, the magistrate judge’s
recommendation will be reviewed de novo as to those findings to
which the petitioner objected.

As to those findings to which

objections were not filed, all findings and recommendations will be
upheld unless they are “clearly erroneous or contrary to law.”
U.S.C. § 636(b)(1)(A).
the

report

and

28

Because the petitioner filed objections to

recommendation,

the

magistrate

judge’s

recommendation will be reviewed de novo.
IV.

Discussion

On de novo review, this Court finds that petitioner’s § 2241
petition does not seek relief under any permissible ground as his
claims do not relate to the execution or calculation of his
sentence by the Federal Bureau of Prisons (“BOP”).

5

Instead,

petitioner’s claims attack the validity of his sentence, imposed by
the Eastern District of Pennsylvania, and such claims are properly
contested either on direct appeal or in a § 2255 proceeding; thus,
the instant petition is merely yet another attempt to obtain relief
under § 2255, and should be treated accordingly.
In his recommendation, the magistrate judge recommended that
the respondent’s motion to dismiss be granted and the petitioner’s
§ 2241 petition be dismissed without prejudice after finding

that

the petitioner’s claim is not properly brought under § 2241 because
the claim relates to the validity of his sentence and is a
successive attempt to obtain relief under § 2255 and determining
that the petitioner is not entitled to relief under the savings
clause of § 2255.

ECF No. 36 at 11.

This Court agrees.

The

magistrate judge correctly found that because the petitioner is
challenging the validity of his sentence, not his conviction, the
Court must apply United States v. Wheeler, 886 F.3d 415 (4th Cir.
2018), to determine whether § 2255 is inadequate or ineffective.
ECF No. 36 at 11.

Here, the magistrate judge found that “the

[p]etitioner cannot meet the second element of the Wheeler test,
because any change to the settled law which established the
legality of his sentence has not been deemed to apply retroactively
to cases on collateral review.”

ECF No. 36 at 11.

Thus, the

magistrate judge recommended the petition be denied and dismissed
without prejudice.

ECF No. 36 at 13.

6

In petitioner’s “response to the magistrate court’s report and
recommendation” (ECF No. 47), the petitioner asserts a general
objection to what he calls “factual history obstructions to the
recommendation.”

ECF No. 47 at 2-8.

In addition, petitioner

attached several attachments including a “memorandum of points and
authorities” (ECF No. 47-1), an outline of research (ECF No. 47-2),
and copies of the Pennsylvania State Police Bureau of Records &
Identification Right-To-Know letters and correspondence (ECF No.
47-3, 47-4, 47-5).
In his objections, the petitioner generally recites what he
believes

to

be

errors

in

the

computation

of

his

underlying

presentence report, and ultimately, the validity of his sentence
imposed by the Eastern District of Pennsylvania.

Petitioner then

states, after several pages of explanation as to why he believes
his presentence report and sentence were invalid, that “[b]ut all
of the above is a moot point.”

ECF No. 47 at 8.

Second, petitioner asserts arguments regarding the “Residual
Clause Sentence” and reiterates his earlier arguments relating to
the computation of his “guideline range.”

ECF No. 47 at 8, 11.

Petitioner continues by stating that “in the instant case the
sentencing court’s determination that he was a career offender
pursuant U.S.S.G. § 4B1.1 residual clause violates the defendant’s
constitutional rights.” ECF No. 47 at 13. Petitioner submits that

7

he is asking this Court “to remove the career criminal enhancement
from Petitioner.”

ECF No. 47 at 13.

Third, petitioner objects to the magistrate judge’s conclusion
“that neither Descamps nor Mathis apply retroactively” and asserts
that

“[b]eing

enhanced

as

a

career

computation of Petitioner’s sentence.”
Fourth,

petitioner

asserts

offender

is

in

fact

the

ECF No. 47 at 13, 19.

that

“Petitioner

has

also

demonstrated that § 2255 is inadequate or ineffective to test the
legality of Petitioner’s detention and thus, his claims are proper
for consideration under § 2241.”

ECF No. 47 at 22.

Rather than

making specific objections to the magistrate judge’s report and
recommendation, petitioner then proceeds by advancing general
recitations of various case law.
Ultimately,

petitioner

then

requests

this

Court

deny

respondent’s motion to dismiss, allow the instant § 2241 to proceed
forward, grant the requested writ of habeas corpus, deem petitioner
has been denied due process of law, and reverse, vacate and remand,
this case back to the district court for re-sentencing without
deeming petitioner as a career offender and without sentencing
petitioner under the career offender enhancements.

ECF No. 28.

Petitioner also filed a document styled “permission to add
newly decided case to petitioners [sic] memorandum of law” and
notes the

decision of the United States Court of Appeals for the

Sixth Circuit in “Harrington” and attaches a “federal prison

8

newsletter for August 13, 2018” which generally outlines several
cases.

ECF No. 49.

Upon de novo review, this Court finds that, as the magistrate
judge correctly noted, “[a]lthough Petitioner asserts that he is
entitled to relief under the savings clause, it is clear that he is
not.”

Id.

Because petitioner is not challenging his conviction,

the test under In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000),
does not apply and, instead, this Court must review the petition
under the four prong savings clause test under United States v.
Wheeler, 886 F.3d 415 (4th Cir. 2018), for erroneous sentences.
In Wheeler, the United States Court of Appeals for the Fourth
Circuit concluded that § 2255(e) provides “an avenue for prisoners
to test the legality of their sentences pursuant to § 2241, and
Jones is applicable to fundamental sentencing errors, as well as
undermined convictions.”

Id. at 428.

When contesting a sentence

through a petition filed under § 2241, a petitioner still must meet
the savings clause of § 2255.

In the Fourth Circuit, § 2255 is

deemed to be “inadequate and ineffective” to test the legality of
a sentence only when all four of the following conditions are
satisfied:
(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;

9

(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.
Wheeler, supra, at 429.
The

Fourth

Circuit

further

specified

that

a

change

of

substantive law within the circuit, not solely in the Supreme
Court, would be sufficient to satisfy the second prong of the
four-part test established in Wheeler.

Id.

As to the first prong, this Court finds that it is clear that
at the time of sentencing, settled law established the legality of
the

sentence

imposed.

However,

this

Court

finds

that

the

petitioner cannot meet the second prong of the Wheeler, because any
change to the settled law which established the legality of his
sentence has not been deemed to apply retroactively to cases on
collateral review.

As the magistrate correctly noted, because

petitioner cannot satisfy the second prong of the four-part test
set forth in Wheeler, this Court does not need to consider the
third or fourth parts of the test, and petitioner’s claim fails.
Upon de novo review, this Court also finds that to the extent
the petitioner is impliedly raising arguments based upon the
Supreme Court’s decisions in Mathis and Descamps, this Court finds
that neither of those decisions afford petitioner relief, as he has
already been advised by the Third Circuit when it denied his § 2244
motion.

See ECF No. 36 at 4-5.
10

This Court finds that the

magistrate judge correctly noted that petitioner’s reliance on
Sessions v. Dimaya, 138 S.Ct. 1204 (2018), is likewise unavailing
in that Dimaya provides petitioner no basis for relief.
Additionally, this Court finds that petitioner’s motion to
supplement his memorandum of law (ECF No. 49) is untimely. On July
24, 2018, petitioner filed a letter requesting an extension of time
to reply to the report and recommendation issued by the magistrate
judge on July 13, 2018 (ECF No. 36).
granting

the

petitioner’s

request

This Court entered an order
and

extended

petitioner to file objections to August 12, 2018.

the

time

for

The petitioner

filed his motion to supplement his memorandum of law (ECF No. 49)
on August 20, 2018.

Thus, this Court will deny the petitioner’s

request as untimely.
This Court finds because petitioner fails to meet the second
prong of the Wheeler test, his claims may not be considered under
§ 2241, and this Court is without jurisdiction to consider the
petition.

Thus,

this

Court

upholds

the

magistrate

judge’s

recommendation.
V.

Conclusion

For the reasons discussed above, the report and recommendation
of the magistrate judge (ECF No. 36) is hereby AFFIRMED and ADOPTED
in its entirety.

Accordingly, respondent’s motion to dismiss (ECF

No. 16) is GRANTED, petitioner’s petition for writ of habeas corpus
under 28 U.S.C. § 2241 (ECF No. 1) is DENIED, and the petitioner’s

11

objections (ECF No. 47) are OVERRULED.

Further, the petitioner’s

pending motion to file a second supplement to his petition (ECF No.
30) is DENIED AS MOOT and his motion to supplement his memorandum
of law (ECF No. 49) is DENIED as untimely.
It is further ORDERED that this case be DISMISSED WITHOUT
PREJUDICE 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 this order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein and to the pro se
petitioner by certified mail.

Pursuant to Federal Rule of Civil

Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED:

September 19, 2018

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

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