Nelson v. Masters

Filing 4

MEMORANDUM OPINION AND ORDER AND NOTICE: it is hereby ORDERED that the reference of this matter to Magistrate Judge Tinsley is WITHDRAWN; that the instant section 2241 petition is construed as a second or successive Motion to Vacate, Set Aside or Co rrect Sentence under 28 U.S.C. § 2255, and it is further ORDERED that the same be TRANSFERRED to the United States Court of Appeals for the Fourth Circuit for consideration under 28 U.S.C. §§ 2244(a) and 2255(h) as to whether the petitioner should be authorized to file a second or successive section 2255 motion in the United States District Court for the Middle District of North Carolina. Signed by Senior Judge David A. Faber on 6/23/2016. (cc: Petitioner) (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
BRODERICK DALE NELSON,
Petitioner,
v.

CIVIL ACTION NO. 1:14-15228

BART MASTERS, Warden,
Respondent.
MEMORANDUM OPINION AND ORDER AND NOTICE
Pending before the Court is plaintiff’s Petition for a Writ
of Habeas Corpus under 28 U.S.C. § 2241 (ECF No. 2) and his
Application to Proceed Without Prepayment of Fees and Costs (ECF
No. 1).

By Standing Order, this matter was referred to United

States Magistrate Judge Dwane L. Tinsley for submission of
proposed findings and a recommendation for disposition pursuant
to 28 U.S.C. § 636(b)(1)(B).
I. Background
On April 23, 2014, Broderick Dale Nelson, pro se, an inmate
incarcerated at the Federal Correctional Institution McDowell in
Welch, West Virginia,1 filed this petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241. On January 4, 2010,
Petitioner pled guilty, without a written plea agreement, to one
count of being a felon in possession of a firearm, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), in the United States

1

The BOP’s Inmate Locater indicates that Nelson is currently
incarcerated at FCI Butner Medium I.

District Court for the Middle District of North Carolina.

On

July 20, 2010, Petitioner was sentenced to a term of imprisonment
of 120 months in prison, followed by a three-year term of
supervised release.
August 19, 2010.

A Judgment to that effect was entered on

(Judgment, United States v. Nelson, Case No.

1:09-cr-00297-01 (M.D.N.C., Aug. 19, 2010, ECF No. 9)).
Petitioner did not appeal his conviction and sentence to the
United States Court of Appeals for the Fourth Circuit.2
On August 13, 2012, Petitioner filed a pro se Motion to
Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255,
asserting that his conviction was no longer valid under the
decision of the United States Court of Appeals for the Fourth
Circuit in United States v. Simmons, 649 F.3d 327 (4th Cir.
2011), because he did not face more than a year in prison for the
predicate felony supporting his conviction.

(Id., ECF No. 10).

Petitioner also challenged an enhancement he received under
section 2K2.1(a)(2) of the United States Sentencing Guidelines
(“USSG”) for committing the instant offense subsequent to two

2

According to the Fourth Circuit’s docket, on October 21, 2010,
an appellate action (Case No. 10-5098) was opened to address the
appeal of the revocation of a prior term of supervised release
imposed by the United States District Court for the Western
District of North Carolina in Case No. 3:04-cr-00082-FDW-DSC-1
filed in that Court. See United States v. Nelson, 437 F. App’x
210, 2011 WL 2631346 (4th Cir. July 5, 2011). However, the
Fourth Circuit docket does not indicate any filings related to
Petitioner’s conviction in the Middle District of North Carolina.

2

prior felony convictions for a crime of violence or a controlled
substance offense.

Petitioner contended that his prior

convictions should not be counted as felonies following Simmons.3
On September 29, 2015, the United States District Court for the
Middle District of North Carolina denied Petitioner’s section
2255 motion and also denied a certificate of appealability,
finding that the predicate felony for Petitioner’s section
922(g)(1) conviction was a prior section 922(g)(1) conviction in
the United States District Court for the Western District of
North Carolina and, thus, Simmons had no application in that
context.

The North Carolina District Court further held that

Petitioner’s claim concerning his Sentencing Guidelines
enhancement was foreclosed by the Fourth Circuit’s decision in
United States v. Foote, 784 F.3d 931, 943 (4th Cir. 2015), cert.
denied, ___ U.S. ___, 135 S. Ct. 2850, 192 L. Ed.2d 805 (2015).
(Id., ECF No. 26).
On April 23, 2014, while his section 2255 motion was
pending, Petitioner filed the instant Petition for a Writ of
Habeas Corpus under 28 U.S.C. § 2241 in this District Court.

The

Petitioner again challenges the validity of his sentence; in

3

The Federal Public Defender for the Middle District of North
Carolina was subsequently appointed to represent Petitioner with
respect to any issues related to Simmons and the decision of the
United States Supreme Court in Carachuri-Rosendo v. Holder, 560
U.S. 563 (2010). (Id., ECF No. 12).

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particular, Petitioner asserts that, following Simmons, his prior
breaking and entering conviction should not have been considered
as a predicate felony resulting in a higher base offense level
under USSG § 2K2.1(a)(2).4
On June 26, 2015, the United States Supreme Court issued its
decision in Johnson v. United States, ___ U.S. ___, 135 S. Ct.
2551, 192 L. Ed.2d 569 (2015).

In Johnson, the Supreme Court

considered a provision of the Armed Career Criminal Act
(hereinafter the “ACCA” or “the Act”) that provides for a
sentencing enhancement for a felon possessing a firearm when the
defendant already has three prior convictions for violent
felonies and/or serious drug offenses.
and 924(e)(1).

18 U.S.C. §§ 922(g)(1)

The ACCA defines a “violent felony” as a crime

punishable:
by imprisonment for a term exceeding one year . . . that
(i)

has as an element the use, attempted use, or
threatened use of physical force against the person
of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical
injury to another.
18 U.S.C. § 924(e)(2)(B) (emphasis added).

The bolded portion of

this definition has come to be known as the Act’s “residual
4

According to his section 2241 petition documents, Petitioner
still had another prior felony conviction for the sale of cocaine,
which would be counted as a prior felony conviction under USSG §
2K2.1(a)(4), resulting in a base offense level of 20, rather than
the level 24 imposed under USSG § 2K2.1(a)(2).
4

clause.” In Johnson, the Supreme Court held that the residual
clause is unconstitutionally vague and that imposing an increased
sentence thereunder violates due process. 135 S. Ct. at 2555-63.
On January 8, 2016, the Supreme Court granted a writ of
certiorari to resolve a split in the circuits as to whether
Johnson applies retroactively to the sentences of defendants
whose judgments had previously become final.

Welch v. United

States, 136 S. Ct. 790, 2016 WL 90594 (2016). On April 18, 2016,
the Supreme Court determined that Johnson changed the substantive
reach of the Act, and therefore was a substantive, rather than a
procedural decision, because it affected the reach of the
underlying statute rather than the judicial procedures by which
the statute was applied. Therefore, the Court held that Johnson
announced a new substantive rule that applies retroactively to
cases on collateral review.

Welch v. United States, 136 S. Ct.

1257 (2016).
On June 8, 2016, the United States Court of Appeals for the
Fourth Circuit decided In re Creadell Hubbard, ___ F.3d ___, 2016
WL 3181417 (4th Cir. June 8, 2016), granting a request for
authorization to file a second or successive section 2255 motion
filed by a petitioner seeking to challenge his career offender
enhancement under the Sentencing Guidelines based upon Johnson.5
5

The majority of circuit courts that have addressed the issue
have concluded that Johnson provides a basis for authorization of
a successive section 2255 challenging the career offender
5

Petitioner has not sought an amendment of his section 2241
petition to raise a claim based upon Johnson, Welch or Hubbard.
II. Analysis
Title 28, United States Code, Sections 2241 and 2255 each
create a mechanism by which a federal prisoner may challenge his
detention. However, the two sections are not interchangeable.
Motions under 28 U.S.C. § 2255 are the primary remedy for testing
the validity of federal judgments and must be filed in the court
of conviction.

28 U.S.C. § 2241 is generally used to address

matters concerning the execution of a federal sentence, and is
not an additional, alternative or supplemental remedy to that
provided in section 2255, unless the petitioner can show that the
remedy under section 2255 is inadequate or ineffective to test
the legality of the petitioner’s detention.

In re Jones,

226 F.3d 328, 333 (4th Cir. 2000) (“[W]hen § 2255 proves
‘inadequate or ineffective to test the legality of . . .
detention,’ a federal prisoner may seek a writ of habeas corpus
pursuant to § 2241.”).

In re Jones relies upon the statutory

language presently found in 28 U.S.C. § 2255(e), which states:
An application for a writ of habeas corpus in behalf of
a prisoner who is authorized to apply for relief by
motion pursuant to this section, shall not be
enhancement provisions of the Sentencing Guidelines. See In re
Robinson, No. 16-11304-D, ___ F.3d ___, 2016 WL 1583616, at *2
n.2 (11th Cir. Apr. 19, 2016) (noting that every circuit except
the Eleventh has held or assumed Johnson applies to the
Sentencing Guidelines).
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entertained if it appears that the applicant has failed
to apply for relief, by motion, to the court which
sentenced him, or that such court has denied him
relief, unless it also appears that the remedy by
motion is inadequate or ineffective to test the
legality of his detention.
This section is known as the “savings clause.”

The fact that

relief under section 2255 is procedurally barred does not render
such remedy inadequate or ineffective to test the legality of the
petitioner’s detention.

Id. at 332.

Petitioner’s claim is properly reviewed under section 2255,
not section 2241, because it involves the imposition, rather than
the execution of his sentence.

Thus, before considering the

petitioner’s section 2241 petition on its merits, the court must
determine whether the remedy under section 2255 is inadequate or
ineffective to test the legality of the petitioner’s detention in
order that he may pursue such relief under section 2241.

The

Fourth Circuit has long held that:
§ 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 gate-keeping provisions of § 2255 because the new
rule is not one of constitutional law.6
6

The “gatekeeping” requirements provide that an individual may
only file a second or successive § 2255 motion if the claim
sought to be raised presents:
(1) newly discovered evidence that, if proven and
7

Jones, 226 F.3d at 333-34.

Using this three-factor analysis,

Petitioner does not present claims that fall within the savings
clause exception and, thus, are not properly brought under
section 2241.

The Fourth Circuit has specifically held that

section 2241 is not an appropriate vehicle by which a petitioner
may “secure resentencing based upon the argument that an
intervening law has changed the classification of [a
petitioner’s] prior convictions so that a sentencing enhancement
no longer applies.”

Terry v. Stewart, No. TDC-15-0841, 2016 WL

1117407 at *3-4 (D. Md. Mar. 31, 2016) (citing United States v.
Surratt, 797 F.3d 240-, 247 (4th Cir. 2015)).

Furthermore, to

the extent that Petitioner’s section 2241 petition challenges his
conviction and sentence under Simmons, that issue was resolved
unfavorably to him in his prior section 2255 motion filed in the
Middle District of North Carolina.

He cannot use section 2241 to

rehash claims previously found to be unmeritorious.

However, in

light of the subsequent decisions in Johnson, Welch, and Hubbard,
Petitioner may now be able to meet the gate-keeping provisions of
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing
evidence that no reasonable fact finder would have
found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court,
that was previously unavailable. 28 U.S.C. § 2255; see
Jones, 226 F.3d at 330.

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section 2255 and seek relief thereunder in his court of
conviction.7
In light of the fact that Petitioner’s claims are not
properly brought under section 2241, his section 2241 petition
“must either be dismissed or construed as a section 2255 motion”
and transferred to Petitioner’s court of conviction, as this
court would lack jurisdiction to consider his 2255 motion.

See

Pack v. Yuseff, 218 F.3d 448, 452 (5th Cir. 2000); United States
v. Poole, 531 F.3d 263, 264 (4th Cir. 2008).

However, because

the Petitioner unsuccessfully filed a prior 2255 motion in the
Middle District of North Carolina, if he wishes to pursue relief
under section 2255, he must seek authorization from the United
States Court of Appeals for the Fourth Circuit to file a second
or successive section 2255 motion based on “a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.” 28
U.S.C. § 2255(h)(2).
The petitioner is hereby NOTIFIED that section 2255 provides
a time limit on filing such motions:

7

Because the Supreme Court has announced in Welch that Johnson
is a new rule of constitutional law made retroactive to cases on
collateral review, the Petitioner cannot demonstrate that section
2255 is inadequate or ineffective to test the legality of his
detention because he now effectively meets the gatekeeping
provisions of section 2255.
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A 1-year period of limitation shall apply to a
motion under this section. The limitation period shall
run from the latest of –
(1) the date on which the judgment of
conviction becomes final;
(2) the date on which the impediment to
making a motion created by governmental
action in violation of the Constitution or
laws of the United States is removed, if the
movant was prevented from making a motion by
such governmental action;
(3) the date on which the right asserted
was initially recognized by the Supreme
Court, if that right has been newly
recognized by the Supreme Court and made
retroactively applicable to cases on
collateral review; or
(4) the date on which the facts
supporting the claim or claims presented
could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f) (emphasis added).

The petitioner is further

NOTIFIED that the one-year statute of limitations period under 28
U.S.C. § 2255(f)(3) for filing a claim relying on the Supreme
Court’s decision in Johnson expires on June 26, 2016.

In light

of this looming deadline, the undersigned believes that the most
appropriate course of action is to construe the section 2241
petition as a second or successive section 2255 motion and to
transfer the same to the United States Court of Appeals for the
Fourth Circuit for consideration for authorization pursuant to 28
U.S.C. §§ 2244(a) and 2255(h)(2).

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III. CONCLUSION
For reasons appearing to the Court, it is hereby ORDERED
that the reference of this matter to Magistrate Judge Tinsley is
WITHDRAWN.

Furthermore, for the reasons stated herein, it is

hereby ORDERED that the instant section 2241 petition is
construed as a second or successive Motion to Vacate, Set Aside
or Correct Sentence under 28 U.S.C. § 2255, and it is further
ORDERED that the same be TRANSFERRED to the United States Court
of Appeals for the Fourth Circuit for consideration under 28
U.S.C. §§ 2244(a) and 2255(h) as to whether the petitioner should
be authorized to file a second or successive section 2255 motion
in the United States District Court for the Middle District of
North Carolina.
The Clerk of the Court is directed to mail a copy of this
Memorandum Opinion and Order and Notice to Petitioner.
It is so ORDERED this 23rd day of June, 2016.
ENTER:

David A. Faber
Senior United States District Judge

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