Cleckley v. Rickard

Filing 22

MEMORANDUM OPINION AND ORDER granting 19 MOTION by Freddie Cleckley for Extension of Time to File Objections to the Proposed Findings and Recommendations by Magistrate Judge; denying 21 MOTION by Freddie Cleckley Pursuant to Exparte with Medical Records, also First Step Act, and Contracting COVID-19; Resentence to First Step Act; adopting 18 Proposed Findings and Recommendations by Magistrate Judge. The Court OVERRULES plaintiff's objections and adopts the 18 findings and recommend ations contained therein; DENIES plaintiff's 1 petition under 28 U.S.C. § 2241 for a writ of habeas corpus, GRANTS defendant's 13 motion to dismiss, DISMISSES plaintiff's 1 petition with prejudice and directs the Clerk 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 2/17/2021. (cc: Plaintiff, pro se; counsel of record) (mk)

Case 1:18-cv-01363 Document 22 Filed 02/17/21 Page 1 of 8 PageID #: 143

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
FREDDIE CLECKLEY,
Plaintiff,
v.

CIVIL ACTION NO. 1:18-01363

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

Magistrate Judge Eifert submitted to the

court her Findings and Recommendation on March 3, 2020, in which
she recommended that the district court deny plaintiff’s petition
for a writ of habeas corpus, grant defendant’s motion to dismiss,
dismiss plaintiff’s petition under 28 U.S.C. § 2241 with
prejudice, and remove this matter from the court’s docket.
In accordance with the provisions of 28 U.S.C. § 636(b),
the parties were allotted fourteen days, plus 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 constitutes a waiver of such party's right to a
de novo review by this court.
(4th Cir. 1989).

Snyder v. Ridenour, 889 F.2d 1363

Moreover, this court need not conduct a de novo

review when a plaintiff “makes general and conclusory objections

Case 1:18-cv-01363 Document 22 Filed 02/17/21 Page 2 of 8 PageID #: 144

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 (4th Cir. 1982).
On March 11, 2020, Cleckley filed a motion for an
extension of time to file his objections.

See ECF No. 19.

That

motion is hereby GRANTED and the objections that plaintiff filed
on April 1, 2020, see ECF No. 20, are deemed to be timely filed.
With respect to those objections, the court has conducted a de
novo review.
On April 23, 2010, in the United States Court for the
Western District of Pennsylvania, Cleckley pled guilty to a
three-count indictment charging him with: (1) possession with
intent to distribute five grams or more of cocaine base (Count
One); (2) carrying a firearm in relation to a drug trafficking
crime (Count Two); and (3) being a felon in possession of a
firearm (Count Three).

On August 27, 2010, Cleckley was

sentenced to a term of imprisonment of 188 months on Count One
and 120 months on Count Three, to run concurrently to each other.
The sentences on Counts One and Three were, however, imposed to
run consecutively to the 60-month sentence imposed on Count Two,
for a total term of imprisonment of 248 months.

His sentence was

driven in part by his criminal history as he was found to be a
career offender under the advisory sentencing guidelines.

2

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Magistrate Judge Eifert’s PF&R is thorough and
comprehensive and provides an excellent account of the various
arguments Cleckley raises that, according to him, entitle him to
habeas relief.

Plaintiff’s objections do not direct the court to

specific errors in the PF&R but, rather, merely restate the same
arguments previously made without confronting the deficiencies
identified in the PF&R.
As Magistrate Judge Eifert correctly noted, Cleckley
challenges the validity of his conviction and sentence and,
therefore, in view of the nature of his claims, his application
must be considered to be a Motion to Vacate, Set Aside or Correct
his sentence under § 2255.

Motions under 28 U.S.C. § 2255 are

the exclusive remedy for testing the validity of federal
judgments and sentences unless there is a showing that the remedy
is inadequate or ineffective.

See Hahn v. Moseley, 931 F.3d 295,

300 (4th Cir. 2019) (“Generally, defendants who are convicted in
federal court must pursue habeas relief from their convictions
and sentences through the procedures set out in 28 U.S.C. §
2255.”).

The remedy under § 2241 is not an additional,

alternative or supplemental remedy to that prescribed under §
2255.
“Nonetheless, § 2255 includes a ‘savings clause’ that
preserves the availability of § 2241 relief when § 2255 proves
`inadequate or ineffective to test the legality of a [prisoner’s]

3

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detention.’”

Hahn, 931 F.3d at 300 (quoting 28 U.S.C. §

2255(e)); see also 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 determining whether

to grant habeas relief under the savings clause, [a court should]
consider (1) whether the conviction was proper under the settled
law of this circuit or Supreme Court at the time; (2) if the law
of conviction changed after the prisoner’s direct appeal and
first § 2255 motion; and (3) if the prisoner cannot meet the
traditional § 2255 standard because the change is not one of
constitutional law.”

Hahn, 931 F.3d at 300-01 (citing In re

Jones, 226 F.3d at 333-34).
The United States Court of Appeals for the Fourth Circuit
has also held that a person in federal custody may, under certain
circumstances, use the savings clause under § 2255 to challenge
his sentence.
(2018).

See United States v. Wheeler, 886 F.3d 415, 428

In Wheeler, the Fourth Circuit held that § 2255 is

inadequate or ineffective to test the legality of a sentence
when:
(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; (3) the prisoner is unable to
meet the gatekeeping provisions of § 2255(h)(2)
4

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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.
Id. at 429 (citing In re Jones, 226 F.3d 328, 333–34 (4th Cir.
2000)).
The plaintiff bears the burden of showing the inadequacy
or ineffectiveness of a § 2255 motion.
604 F.2d 9, 10 (5th Cir. 1979).

See McGhee v. Hanberry,

The fact that relief under §

2255 is barred procedurally or by the gatekeeping requirements of
§ 2255 does not render the remedy of § 2255 inadequate or
ineffective.

See In re Jones, 226 F.3d at 332-33; Young v.

Conley, 128 F. Supp.2d 354, 357 (S.D.W. Va. 2001); see also
Cradle v. United States, 290 F.3d 536, 538-39 (3d Cir. 2002) (“It
is the inefficacy of the remedy, not the personal inability to
use it, that is determinative.

Section 2255 is not inadequate or

ineffective merely because the sentencing court does not grant
relief, the one-year statute of limitations has expired, or the
petitioner is unable to meet the stringent gatekeeping
requirements of the amended § 2255.”) (citations omitted).

A

section 2241 petition that seeks to challenge the validity of a
federal sentence must either be dismissed or construed as a
section 2255 motion.

Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir.

2000).
Magistrate Judge Eifert concluded that plaintiff could
not satisfy the second prong of the Wheeler test because he could
5

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not show any change in the substantive law pertaining to the
legality of his sentence which was made retroactive on collateral
review.

See PF&R at p. 10.

Magistrate Judge Eifert went on to

note that both Third and Fourth Circuit law do not allow Cleckley
to use the savings clause to challenge an alleged erroneous
career offender designation under the guidelines.
Under the fourth prong of the Wheeler test, a sentencing
error must be sufficiently grave to be deemed a fundamental
defect.

As the PF&R noted, courts in both the Fourth and Third

Circuits have concluded that errors in applying the advisory
guidelines are not cognizable in habeas review.

See PF&R at pp.

12-13 and authorities cited therein; see also United States v.
Foote, 784 F.3d 931, 936 (4th Cir. 2015) (“sentencing a defendant
pursuant to advisory Guidelines based on a career offender status
that is later invalidated” is not “a fundamental defect which
inherently results in a complete miscarriage of justice”); Scott
v. Shartle, 574 F. App’x 152, 155 (3d Cir. 2014) (“[B]ecause
[petitioner] is challenging his career offender designation and
is not claiming that he is now innocent of the predicate offense,
he does not fall within the ‘safety valve’ exception created in
In re Dorsainvil and cannot proceed under § 2241.”).
Cleckley objects to the PF&R’s ultimate conclusion that
his claim is not cognizable in § 2241 but he does not really
grapple with the analysis in the PF&R detailing why he is unable

6

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to proceed under the savings clause.

For example, he directs the

court to the Fourth Circuit’s decision in Braswell v. Smith, 952
F.3d 441 (4th Cir. 2020).

See ECF No. 20 at p.2.

Braswell,

however, only bolsters the PF&R’s conclusion that Cleckley could
not satisfy the Wheeler test based on an erroneous career
offender designation.
We make clear, however, that Appellant’s
satisfaction of prong four is based on the
increase in his mandatory minimum, not on his
career offender designation. As we stated in
United States v. Foote, a “fundamental defect or a
complete miscarriage of justice” has not occurred
where the petitioner was sentenced as a career
offender “under an advisory Guidelines scheme.” .
. . Here, Appellant was deemed a career offender
under an advisory Guidelines scheme; thus, to the
extent Appellant bases his Wheeler claim on his
career offender designation, he does not satisfy
prong four.
952 F.3d at 450.

The allegedly erroneous career offender

designation is the whole ballgame for plaintiff.

His inability

to satisfy the Wheeler test on that claim is fatal to proceeding
under § 2241.

Cleckley’s argument to the contrary is without

merit and, therefore, OVERRULED.
Having reviewed the Findings and Recommendation filed by
Magistrate Judge Eifert, the court hereby OVERRULES plaintiff’s
objections and adopts the findings and recommendations contained
therein.

Accordingly, the court hereby DENIES plaintiff’s

petition under 28 U.S.C. § 2241 for a writ of habeas corpus,
GRANTS defendant’s motion to dismiss, DISMISSES plaintiff’s
7

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petition under 28 U.S.C. § 2241 with prejudice, and directs the
Clerk 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.

Accordingly, the

court DENIES a certificate of appealability.
The Clerk is directed to forward a copy of this
Memorandum Opinion and Order to plaintiff, pro se, and counsel of
record.
IT IS SO ORDERED this 17th day of February, 2021.
ENTER:

*

David A. Faber
Senior United States District Judge

On February 3, 2021, Cleckley filed a “Motion pursuant to
Exparte with Medical Records, Also First Step Act, and
Contracting Covid-19. Resentence to First Step Act.” ECF No.
21. To the extent that motion seeks relief from this court it is
DENIED. Motions under the First Step Act should be filed with
the sentencing court.
8