Barksdale v. Rickard

Filing 26

MEMORANDUM OPINION AND ORDER adopting the 18 Proposed Findings and Recommendations by Magistrate Judge: Petitioner's 1 petition for writ of habeas corpus under 28 U.S.C. § 2241 is DENIED; Respondent's 14 request for dismissal i s GRANTED; This action is DISMISSED; and The Clerk is directed to remove this case from the court's active docket. The court DENIES a certificate of appealability.Signed by Senior Judge David A. Faber on 2/4/2020.(cc: counsel of record; any unrepresented party)(mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
TRAVIS LEMONT BARKSDALE,
Petitioner,
v.

CIVIL ACTION NO. 1:17-03216

WARDEN BARBARA RICKARD
FCI McDowell,
Respondent.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United
States Magistrate Judge Cheryl A. Eifert for submission of
findings and recommendation regarding disposition pursuant to 28
U.S.C. § 636(b)(1)(B).

Magistrate Judge Eifert submitted to the

court her Proposed Findings and Recommendation (“PF&R”) on
December 19, 2017, in which she recommended that the court deny
petitioner’s petition for writ of habeas corpus, grant
respondent’s request for dismissal, dismiss this action with
prejudice, and remove this case from the court’s active docket.
(See ECF No. 18.)
In accordance with the provisions of 28 U.S.C. § 636(b),
petitioner was allotted fourteen days and three mailing days in
which to file any objections to Magistrate Judge Eifert’s
Findings and Recommendation.

The failure of any party to file

such objections within the time allowed constitutes a waiver of

such party’s right to a de novo review by this court.
Ridenour, 889 F.2d 1363 (4th Cir. 1989).

Snyder v.

On December 29, 2017,

petitioner, acting pro se, filed objections to the PF&R.
ECF No. 19.)

(See

As such, his objections were timely.

Petitioner objects to the PF&R’s finding that he cannot
bring his claims under § 2241 because he does not qualify for
the savings clause exception.

He argues that his § 2241 claims

do indeed satisfy the “savings clause” exception, found at 28
U.S.C. § 2255(e), which allows a § 2255 claim to be brought
under § 2241.

He maintains that the savings clause exception

applies because he meets all four requirements to show a § 2255
motion is inadequate or ineffective.

First, petitioner argues

that “at the time of [his] conviction, there [was] no settled
circuit or Supreme Court precedent on consolidated sentence
under North Carolina law.”

(ECF No. 19.)

Second, he argues

that “in light of United States v. Davis, 720 F.3d 215, 217 (4th
Cir. 2013) the interpretation of the U.S. Sentencing Guidelines
Manual was settled in regards to consolidated sentence ‘after’
his appeal was voluntarily dismissed.”

Id.

And third, he

argues that he cannot satisfy § 2255(f)’s gatekeeping provision
because a career offender designation is not cognizable on
collateral review and because he does not meet § 2255(h)’s
requirements to file a successive § 2255 petition.

2

Id.

In his supplemental motion, filed after the Fourth
Circuit’s decision in United States v. Wheeler, 886 F.3d 415
(2018), he added that “the increase in his sentence is an error
sufficiently grave to be deemed a fundamental defect” because
his statutory minimum sentence would have been lower if his
criminal history points were properly calculated.

(ECF No. 20.)

Petitioner does not object with specificity to any other
elements of the PF&R.
I.

Standard of Review of Pro Se Objections
Pursuant to Fed. R. Civ. P. 72(b), the court must “make a

de novo determination upon the record . . . of any portion of
the magistrate judge's disposition to which specific written
objection has been made.”

However, the court is not required to

review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those portions
of the findings or recommendation to which no objections are
addressed.

See Thomas v. Arn, 474 U.S. 140, 149–50 (1985).

Furthermore, de novo review is not required and unnecessary
“when a party makes general and conclusory objections that do
not direct the court to a specific error in the magistrate's
proposed findings and recommendations.”

Orpiano v. Johnson, 687

F.2d 44, 47–48 (4th Cir. 1982); see also United States v.
Midgette, 478 F.3d 616, 622 (4th Cir. 2007) (“[T]o preserve for
appeal an issue in a magistrate judge's report, a party must
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object to the finding or recommendation on that issue with
sufficient specificity so as reasonably to alert the district
court of the true ground for the objection.”); McPherson v.
Astrue, 605 F. Supp. 2d 744, 749 (S.D.W. Va. 2009) (“[F]ailure
to file a specific objection constitutes a waiver of the right
to de novo review.”).
“A document filed pro se is ‘to be liberally construed.’ ”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).

Specifically as to objections

to a PF&R, courts are “under an obligation to read a pro se
litigant's objections broadly rather than narrowly.”

Beck v.

Comm'r of Internal Revenue Serv., 1997 WL 625499, at *1-2
(W.D.N.C. June 20, 1997) (citing Orpiano, 687 F.2d at 48).
However, objections that are “unresponsive to the reasoning
contained in the PF&R” are irrelevant and must be overruled.
Kesterson v. Toler, 2009 WL 2060090, at *1 (S.D.W. Va. July 7,
2009) (citing Orpiano, 687 F.2d at 47).
II.

Analysis
A.

Standard for Satisfying the Savings Clause Exception

The savings clause creates a narrow exception allowing a
§ 2255 claim to be brought under § 2241 because § 2255 is
inadequate and ineffective when the claim contains all four of
the following characteristics: (1) at the time of sentencing,
settled law of this circuit or the Supreme Court established the
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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; (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.

United States v. Wheeler, 886 F.3d 415, 429

(4th Cir. 2018) (citing In re Jones, 226 F.3d 328, 333–34 & n.3
(4th Cir. 2000)).

Wheeler also makes clear that challenges to

“fundamental sentencing errors” are allowed under § 2241 if the
claim meets the four savings clause requirements.

Id. at 428.

The petitioner bears the burden of establishing that he
satisfies all four Wheeler savings clause criteria.
B.

Analysis of the PF&R and Objections post-Wheeler

Petitioner objects to the PF&R’s conclusion that his claim
does not meet the requirements satisfying the savings clause
exception which allows him to proceed under § 2241.
No. 19.)

(See ECF

At the time the PF&R and petitioner’s objections to

the PF&R were filed, the Fourth Circuit had not yet decided
United States v. Wheeler.

886 F.3d 415 (4th Cir. 2018).

Prior to Wheeler, the law in this circuit was that the
savings clause exception mandated three, and not four, criteria
to be present: (1) at the time of the petitioner’s conviction,
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the settled law of the circuit or the Supreme Court established
the legality of his conviction; (2) subsequent to his direct
appeal and first § 2255 motion, the substantive law changed such
that the conduct of which petitioner was convicted is now deemed
not to be criminal; and (3) he cannot satisfy the gatekeeping
provisions of § 2255 because the new rule is not one of
constitutional law.

See In re Jones, 226 F.3d at 333-34.

The

PF&R recommended denying petitioner’s § 2241 motion because
petitioner “cites no substantive change in the law rendering
non-criminal the conduct for which he was convicted,” relying
upon the second Jones criteria – which was later modified by
Wheeler to no longer require non-criminality, but instead only
require a change in the substantive law which could be
retroactively applied.
The PF&R also recommended denying petitioner’s § 2241
motion because, prior to Wheeler, “Fourth Circuit precedent has
. . . not extended the reach of the savings clause to those
petitioners challenging only their sentence.”

Wheeler created

new precedent in this area as well, extending the savings clause
exception to allow a § 2241 challenge to a “fundamental
sentencing error.” 886 F.3d at 428.

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The petitioner objected to these two conclusions of the
PF&R. 1

In these two respects – corresponding to factors (2) and

(4) of the current Wheeler savings clause criteria – the PF&R’s
conclusions no longer rest upon good law.

However, the court,

after de novo review of application of the savings clause
exception criteria to petitioner’s claim, similarly concludes
that the savings clause exception does not apply to petitioner’s
claims.

Therefore, for the reasons set forth below,

petitioner’s claims are not cognizable under § 2241 and his
objections to the PF&R are OVERRULED.
C.

Petitioner Cannot Satisfy All Four Wheeler Criteria

The court assumes without deciding that the first and third
Wheeler criteria are met.

But petitioner’s § 2241 claim fails

the second and fourth Wheeler criteria, and thus petitioner
cannot bear his burden of showing that § 2255 is inadequate and
ineffective to challenge his sentence.
To start, petitioner is correct that United States v. Davis
changed the law in this circuit subsequent to his direct appeal
and first § 2255 motion.

720 F.3d 215 (4th Cir. 2013).

Post-

Petitioner’s initial objections challenged the application of
the In re Jones savings clause criteria to his claims, as he
filed objections prior to the Fourth Circuit’s decision in
Wheeler. (See ECF No. 19.) However, petitioner later filed two
supplemental motions to his initial objections, which argued
that Wheeler further supported his objection that his claim
satisfied the savings clause exception criteria. (See ECF Nos.
20, 25.)
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1

Davis, a prior consolidated sentence under North Carolina law
cannot be the sole basis for a Guidelines career offender
enhancement, see 720 F.3d at 217-19, as was the basis in
petitioner’s 2010 sentencing.

(See ECF No. 2.)

However, application of the savings clause requires that
the change in substantive law has been ruled to apply
retroactively on collateral review: this is not true of Davis.
Instead, as district courts in this circuit have consistently
held, Davis announced a purely procedural rule that is not
retroactive on collateral review.

Lee v. United States, 2013 WL

5561438, at *3 (E.D.N.C. Oct. 8, 2013), aff'd 583 Fed. App’x 275
(4th Cir. Sept. 29, 2014), (citing Whorton v. Bockting, 549 U.S.
406, 416-17 (2007) (discussing analytic framework for deciding
whether to apply an appellate decision retroactively to
judgments in criminal cases that are already final on direct
review); Miller v. United States, 735 F.3d 141, 145-47 (4th Cir.
2013); Hawkins v. United States, 724 F.3d 915, 917–18 (7th Cir.
2013) (“cases reinterpreting the advisory guidelines ... don't
have retroactive application”); United States v. Powell, 691
F.3d 554, 557–58 (4th Cir. 2012)). 2

Because Davis does not apply

The ruling in Lee has consistently been cited approvingly by
district courts in this circuit. See, e.g., Stockton v. United
States, 2018 WL 6680919, at *4 (D. Md. Dec. 18, 2018) (citing to
Lee’s conclusion that Davis is not retroactively applicable);
Moye v. United States, 2016 WL 4004580, at *9 (E.D.N.C. May 27,
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2

retroactively, petitioner cannot satisfy the second criteria of
the savings clause exception.
As to the fourth criteria, even if Davis were retroactively
applicable, the misapplication of the career offender
enhancement under the post-Booker Guidelines against petitioner
does not rise to the level of a “fundamental defect.”

This is

because, although the career offender enhancement increased
petitioner’s minimum Guidelines range of incarceration in this
case, petitioner was sentenced post-Booker and so the Guidelines
were no longer mandatory, but merely advisory.

See United

States v. Booker, 543 U.S. 220, 245 (2005).
Petitioner relies upon the Fourth Circuit’s opinion in
Wheeler when he objects to the PF&R and argues that the
sentencing error was sufficiently grave to be a fundamental
defect.

(See ECF Nos. 20, 25 (citing United States v. Wheeler,

886 F.3d 415 (4th Cir. 2018).)
Wheeler is misplaced.

However, this reliance upon

Wheeler did hold that a sentencing error

can constitute a fundamental defect, but only when the error
results in an erroneous mandatory minimum.
32.

See 886 F.3d at 430-

Thus, only when a sentencing error resulted in a heightened

statutory mandatory minimum or heightened mandatory Guidelines
sentencing range (because the defendant was sentenced pre-

2016) (same); Dawson v. United States, 2014 WL 3018222, at *2
(E.D.N.C. July 3, 2014) (same);
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Booker), but not when the sentencing error resulted in a higher
advisory Guidelines range, would the error constitute a
fundamental defect.

See id.

The Fourth Circuit’s analyses in Foote and Lester clearly
support this understanding.

In United States v. Foote, decided

pre-Wheeler, the Fourth Circuit stated that “we are hesitant to
declare that a fundamental defect . . . has occurred in a
situation in which Appellant was (and on remand, would again be)
sentenced under an advisory Guidelines scheme. . . . [W]e are
not persuaded that [an erroneous] career offender designation is
a defect of a ‘fundamental’ nature.”
Cir. 2015).

784 F.3d 931, 941-42 (4th

And then in Lester v. Flournoy, which was a case

decided after Wheeler but involving Lester’s challenge to his
sentencing which pre-dated Booker, the court explained that
“crucial to our analysis in Foote was that the petitioner,
unlike Lester, was sentenced after Booker had rendered the
Guidelines purely advisory. . . . Foote undoubtedly would bar
Lester’s petition had he been sentenced under the advisory
Guidelines.”

909 F.3d 708, 715 (4th Cir. 2018).

Here, petitioner has not demonstrated that an erroneous
career offender enhancement increased his statutory mandatory
minimum. 3

While the enhancement did increase the Guidelines

Petitioner does state in a supplemental motion to his
objections that, but for the erroneous career offender
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3

range, the Guidelines were merely advisory at the time of
petitioner’s sentencing because petitioner was sentenced in
federal court in 2010.

Therefore, petitioner cannot satisfy the

fourth criteria of the savings clause exception that his
sentence presents an error deemed a fundamental defect.
The court has reviewed the record, the Magistrate’s
findings and recommendations, and petitioner’s objections.

The

court rules that because petitioner is unable to bear his burden
and show that all four criteria for application of the savings
clause are met, petitioner’s objections are OVERRULED.
Accordingly, the court DENIES petitioner’s motion under 28
U.S.C. § 2241 and DISMISSES this case.
III. Conclusion
The court adopts the Findings and Recommendation of
Magistrate Judge Eifert as follows:

enhancement, his “statutory minimum would have been less.” (ECF
No. 20.) A review of the record shows that this is not true,
and perhaps petitioner wrote “statutory minimum” when
“Guidelines minimum” was the correct term. The career offender
enhancement pursuant to U.S.S.G. § 4B1.1 increases the advisory
Guidelines range, but does not affect the statutory mandatory
minimum or maximum. In petitioner’s case, because his conduct
carried a statutory mandatory minimum of 10 years to a maximum
of life, as stated in 21 U.S.C. § 841(b)(1)(A), petitioner’s
offense level became a 37 and his criminal history became a
Category VI. See U.S.S.G. § 4B1.1.
Crucially, these changes from the career offender
enhancement did not affect petitioner’s statutory mandatory
minimum or maximum, but instead resulted in a heightened
advisory Guidelines range of 360 months to life.
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1.

Petitioner’s petition for writ of habeas corpus under
28 U.S.C. § 2241 is DENIED;

2.

Respondent’s request for dismissal is GRANTED;

3.

This action is DISMISSED; and

4.

The Clerk is directed to remove this case from the
court’s active docket.

Additionally, the court has considered whether to grant a
certificate of appealability.

See 28 U.S.C. § 2253(c).

A

certificate will not be granted unless there is “a substantial
showing of the denial of a constitutional right.”
2253(c)(2).

28 U.S.C. §

The standard is satisfied only upon a showing that

reasonable jurists would find that any assessment of the
constitutional claims by this court is debatable or wrong and
that any dispositive procedural ruling is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683-84 (4th Cir. 2001).

The court concludes that the governing

standard is not satisfied in this instance.
court DENIES a certificate of appealability.

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Accordingly, the

The Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to counsel of record and
unrepresented parties.
IT IS SO ORDERED this 4th day of February, 2020.
ENTER:

David A. Faber
Senior United States District Judge

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