Brown v. Hudgins, Civil No.: 5:20CV108

PIERCE YARNELL BROWN, Petitioner, v. R. HUDGINS, Warden, Respondent.

Civil No.: 5:20CV108

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA WHEELING

August 31, 2020

BAILEY

REPORT AND RECOMMENDATION

I. INTRODUCTION

On June 9, 2020, the pro se petitioner filed a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. The petitioner is a federal inmate who is incarcerated at FCI Gilmer and is challenging the validity of his sentence imposed in the United States District Court for the Western District of Virginia. This matter is pending before the undersigned for an initial review and Report and Recommendation pursuant to LR PL P 2 and 28 U.S.C. § 1915A.

FACTUAL AND PROCEDURAL HISTORY¹

A. Conviction and Sentence

On August 13, 2015, a grand jury in the Western District of Virginia returned anindictment against the petitioner, charging him with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). After unsuccessfully moving to suppress the evidence against him, the petitioner entered a conditional plea of guilty to the offense charged. As part of his written plea agreement, the petitioner acknowledged that he would be subject to a joint minimum term of imprisonment of 15 years under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. 924(e), if the Court determined that he had at least three prior convictions for serious drug offenses and/or violent felonies. [Doc. 40]. The petitioner retained the right to appeal such determination, as well as the ruling on his suppression motion. Id. at 7.

In preparation for sentencing, a probation officer prepared a presentence investigation report ("PSR") that designated the petitioner as an armed career criminal under the ACCA. The probation officer noted that the petitioner had three prior convictions for felony drug offenses that were committed on different occasions, and a prior conviction for unlawfully shooting into an occupied dwelling. The probation officer listed the following prior felony drug convictions to support the armed career criminal designation: a September 11, 2006 conviction in the Circuit Court for the City of Roanoke for possessing cocaine with intent to distribute (Case No. CR06-744), and July 12, 2010 convictions in the same court for selling heroin and cocaine (Case Nos. CR09-1934 & CR09-1935). The probation officer noted that the latter offenses occurred on November 19, 2008 and December 10, 2008, respectively. As an armed career criminal, the petitioner was subject to a mandatory term of imprisonment of 15 years to life under 18 U.S.C. § 924(e), and an advisory range of imprisonment of 188 to 235 months under the United States Sentencing Guidelines. Defense counsel did not file any objections to the PSR.

The petitioner appeared for sentencing on May 6, 2016. At that time, the Courtadopted the PSR in its entirety, including the determination that the petitioner qualified as an armed career criminal. The Court ultimately imposed the mandatory minimum term of imprisonment of 180 months. [Doc. 47].

B. Direct Appeal

On direct appeal, the petitioner challenged the denial of his motion to suppress. He did not appeal the armed career criminal designation. The petitioner's conviction was affirmed by the United States Court of Appeals for the Fourth Circuit on January 31, 2017. [Doc. 58].

B. Motion to Vacate

On May 15, 2017, the petitioner filed a motion under 28 U.S.C. § 2255 in which he raised the sole allegation that he should not have been sentenced as an armed career criminal. He challenged his sentence in two different ways. First, he argued that he was not on notice that he was in danger of being sentenced as an armed career criminal, and for this reason the enhancement should not be applied. Second, he made a Johnson 2015 argument that his prior conviction for shooting into an occupied dwelling was no longer a proper ACCA predicate, and as such, he was no longer an armed career criminal and must be resentenced. [Doc. 64].

On December 15, 2017, the district court denied the petitioner's motion. In addition, the Court denied a certificate of appealability. In its Memorandum Opinion, the court noted that the Fourth Circuit has repeatedly held that prior convictions used as a basis for sentencing a defendant as an armed career criminal need not be charged in an indictment or proven to a jury beyond a reasonable doubt. In addition, the district court found that even assuming that unlawfully shooting at an occupied dwelling was not a violent felony for purposes of the ACCA, the petitioner nonetheless qualify for sentencingis an armed career criminal based on three prior convictions for serious drug offenses in the Circuit Court for the City of Roanoke. All three offenses carried a maximum term of imprisonment of ten years or more. Accordingly, the court concluded that the petitioner had at least three qualifying convictions and was therefore properly sentenced as an armed career criminal. [Doc. 72].

PETITIONER'S CLAIMS

In support of his § 2241 petition before this Court, the petitioner continues to argue that he was improperly sentenced under the ACCA. The petitioner contends that two of the three prior state convictions which formed the predicates for sentencing were improperly counted as separate and distinct offenses when, under applicable law, they constituted but a single qualifying predicate. More specifically, the petitioner maintains that the drug offenses charged in Case Numbers CR09-1934 and CR09-1935 arose from the same investigation and involved the same conduct and offense. Moreover, the two cases were consolidated for trial and sentencing with concurrent sentences imposed. He further argues that he was arrested at the same time for both warrants. In addition, the petitioner argues that he is actually innocent of being an Armed Career Criminal because his drug offense convictions under state law were broader than the federal controlled substance statute. For relief, requests that this Court vacate the sentence and resentence him without the enhancement as an Armed Career Criminal.

LEGAL STANDARDS

A. Reviews of Petitions for Relief

Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and the Court's Local Rules of Prisoner Litigation Procedure, this Court is authorized to review such petitions for relief and submit findings and recommendations to the District Court. This Court is chargedwith screening the petitioner's case to determine if "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4, Rules Governing Section 2254 Cases in the U.S. District Courts; see also Rule 1(b) Rules Governing Section 2254 Cases in the U.S. District Courts (a district court may apply these rules to a habeas corpus petition not filed pursuant to § 2254).

B. Pro Se Litigants

As a pro se litigant, the petitioner's pleadings are accorded liberal construction and held to "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). However, even under this less stringent standard, the petition in this case is subject to summary dismissal. The requirements of liberal construction do not mean that the Court can ignore a clear failure to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990). As discussed more fully below, the petitioner is not entitled to relief under 28 U.S.C. 2241, and this matter is due to be dismissed.

C. Post-Conviction Remedies and Relief

Prisoners seeking to challenge the validity of their convictions or their sentences are generally required to proceed under § 2255 in the District Court of conviction. By contrast, a petition for writ of habeas corpus, pursuant to § 2241, is generally intended to address the execution of a sentence, rather than its validity, and is to be filed in the district where the prisoner is incarcerated. "In a § 2241 petition a prisoner may seek relief from such things as the administration of his parole, computation of his sentence by parole officials, disciplinary actions taken against him, the type of detention, and prison conditions in the facility where he is incarcerated." Adams v. United States, 372 F.3d 132, 135 (2d Cir. 2004).

While the terms of § 2255 expressly prohibit prisoners from challenging their convictions and sentences through a habeas corpus petition under § 2241, there is nonetheless a "savings clause" in § 2255, which allows a prisoner to challenge the validity of his conviction and/or his sentence under § 2241, if he can demonstrate that § 2255 is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). The law is clearly developed, however, that relief under § 2255 is not inadequate or ineffective merely because relief has become unavailable under § 2255 because of (1) a limitation bar,² (2) the prohibition against successive petitions, or (3) a procedural bar due to failure to raise the issue on direct appeal. In re Vial, 115 F. 3d 1192, 1194 n. 5 (4th Cir. 1997).

A petitioner bears the burden of demonstrating that the § 2255 remedy is "inadequate or ineffective,"³ and the standard is an exacting one. The Fourth Circuit has announced two tests for evaluating whether a petitioner's claim satisfies the § 2255(e) savings clause. Which test is to be applied depends on whether the petitioner is challenging the legality of his conviction or the legality of his sentence. See United States v. Wheeler, 886 F.3d 415, 428 (4th Cir. 2018); In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000). When a petitioner is challenging the legality of his conviction, § 2255 isdeemed to be "inadequate or ineffective" only when all three of the following conditions are satisfied:

(1) at the time of the conviction, the settled law of this Circuit or of the Supreme Court established the legality of the conviction;

(2)

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