Proctor v. Saad

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

BRUCE LEON PROCTOR,

Petitioner,

v. Civil Action No. 1:17-CV-45

JENNIFER SAAD, Warden,

Respondent.

REPORT AND RECOMMENDATION

I. INTRODUCTION

On March 22, 2017, pro se Petitioner, Bruce Proctor (“Petitioner”), filed an Application

for Habeas Corpus pursuant to 28 U.S.C. § 2241. Petitioner is a federal inmate who was housed

at USP Gilmer when he initiated this action and is challenging the validity of his sentence

imposed in the United States District Court for the Western District of Pennsylvania. This matter

is pending before the undersigned for an initial review and Report and Recommendation

pursuant to LR PL P 2.

II. PROCEDURAL HISTORY1

On April 11, 2012, Petitioner pled guilty to one count of possession with intent to

distribute heroin in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(c) in the United States

District Court for the Western District of Pennsylvania. ECF No. 17. On August 30, 2102,

Petitioner was sentenced to imprisonment for a term of 121 months, followed by five years of

supervised release. ECF No. 34.

1 This information is taken from Petitioner’s criminal docket in the United States District Court for the

Western District of Pennsylvania, No. 2:12-cr-18 available on PACER. Unless otherwise noted, the ECF

referrals are to his criminal docket. Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009)

(courts “may properly take judicial notice of public record”); Colonial Penn. Ins. Co. v. Coil, 887 F.2d

1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the

contents of court records.”)

On March 7, 2016, Petitioner filed a motion to vacate pursuant to 28 U.S.C. § 2255.

Petitioner alleged that his state court counsel’s failure to advise him of a possible federal

indictment (and its correspondingly stiffer penalties) amounted to ineffective assistance. ECF

No. 39 at 4. Petitioner alleged that had he known that his rejection of the state court plea deal

could lead to his federal indictment, and much more severe punishment in federal court, he

would have taken the state offered plea. ECF No. 41 at 7. The district court declined to reach the

merits of Petitioner’s argument because his Motion was time-barred by 28 U.S.C. § 2255. ECF

No. 53. The United State Court of Appeals for the Third Circuit declined to issue a certificate of

appealability. ECF No. 58.

III. PETITIONER’S CLAIMS

In support of his § 2241 petition before this Court, Petitioner cites Mathis v. United

States, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). Petitioner argues that his predicate convictions2

should not qualify as controlled substance offenses under Mathis, and that his sentencing

enhancement as a “career offender” under U.S.S.G. 4B1.1 is improper.

IV. STANDARD OF REVIEW

Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and this Court’s local rules, the

undersigned is authorized to review such petitions for relief and submit findings and

recommendations to the District Court. This Court is charged with screening 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 § 2254 Cases in the U.S.

District Courts (2014); see also Rule 1(b) Rules Governing § 2254 Cases in the U.S. District

Courts (2014) (a district court may apply these rules to a habeas corpus petition not filed

2 In particular, Petitioner argues that his convictions for violation of Pennsylvania Statute 780-113 do not qualify as

controlled substance offenses as defined by 4B1.1(3) of the sentencing guidelines.

pursuant to § 2254). As a pro se litigant, Petitioner’s pleadings are accorded liberal construction

and held to less stringent standard than formal pleadings drafted by attorneys. See Erickson v.

Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). However, even under this less stringent

standard, the petition in this case is subject to summary dismissal. The requirement of liberal

construction does 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, Petitioner clearly is not entitled to relief

under 28 U.S.C. § 2241 and therefore, no response is required of Respondent.

V. DISCUSSION

Prisoners seeking to challenge the validity of their convictions or their sentences are

required to proceed under § 2255 in the district court of conviction. A petition for writ of habeas

corpus pursuant to § 2241, on the other hand, is 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.

Examples of an appropriate use of § 2241 include “actions challenging the computation of

parole, computation of good time or jail credits, prison disciplinary actions, or imprisonment

allegedly beyond the expiration of a sentence.” Anderson v. Pettiford, 2007 WL 15777676

(D.S.C. May 31, 2007) (internal citations omitted).

However, there is a limited exception in which a challenge to the validity of a conviction

may be raised in a § 2241 petition under the “savings clause” of § 2255:

An application for a writ of habeas corpus on behalf of a prisoner who is

authorized to apply for relief by motion pursuant to this section, shall not be

entertained if it appears that the applicant has failed to apply for that relief

by motion, to the court which sentenced him, or that the 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.

28 U.S.C. § 2255(e) (emphasis added).

The Fourth Circuit has set forth the following test to determine whether § 2255 is

inadequate and ineffective to test the legality of a conviction:

§ 2255 is inadequate and ineffective to test the legality of a conviction

when: (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) subsequent

to the prisoner’s direct appeal and first section 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 section 2255 because the new rule is not one of

constitutional law.

In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000) (emphasis added).

Moreover, the Fourth Circuit has held that the savings only preserves claims in which the

petitioner alleges actual innocence of a conviction,3 Rice v. Rivera, 617 F.3d 802, 807 (4th Cir.

2010), and does not extend to petitioners who challenge only their sentences. See United States

v. Poole, 531 F.3d 263, 267 (4th Cir. 2008) (citing In re Jones, 226 F.3d at 334-34); see also

Rouse v. Wilson, 584 Fed. Appx. 76 (4th Cir. 2014) (unpublished) (“The district court properly

determined that Rouse could not proceed with his [challenge to his sentencing enhancement]

under § 2241.”); Farrow v. Revell, 541 Fed. Appx. 327, 328 (4th Cir. 2013) (unpublished)

(finding that a challenge to an ACCA sentence was not cognizable in a § 2241 petition); Darden

v. Stephens, 426 F. Appx. 173 (4th Cir. 2011) (unpublished) (declining to extend the reach of the

savings clause beyond instances of actual innocence of the underlying offense of conviction.)

Here, Petitioner relies on the United States Supreme Court’s decision in Mathis

(explaining how courts should determine whether a state crime can be used as predicate offense

under the ACCA)4 for relief. However, that decision did not decriminalize the conduct for which

3 “It is important to note in this regard that ‘actual innocence’ means factual innocence, not mere legal

insufficiency. Bousley v. United States, 523 U.S. 623 (1998).

4 More specifically, the Supreme Court outlined the process by which a district court should determine,

for the purpose of the Armed Career Criminal Act, if a defendant’s prior state-court conviction was one of

the enumerated violent felonies listed in 18 U.S.C. § 924(e)(2)(B)(ii). 136 S.Ct. 2247-57. Prior to Mathis,

Petitioner was convicted and therefore, under Fourth Circuit precedent, he is unable to satisfy the

§ 2255’s savings clause to seek relief under § 2241. Where, as here, a federal prisoner brings a §

2241 petition that does not fall within the scope of the savings clause, the district court must

dismiss the unauthorized habeas motion for lack of jurisdiction. Rice, 617 F.3d at 807.

VI. RECOMMENDATION

Based on the foregoing, the undersigned recommends that Petitioner’s § 2241 petition be

DENIED and DISMISSED WITHOUT PREJUDICE.

Within fourteen (14) days after being served with a copy of this Recommendation, any

party may file with the Clerk of the Court, written objections identifying the portions of the

Recommendation to which objections are made and the basis for such objections. A copy of

such objections should also be submitted to the Honorable Irene M. Keeley, United States

District Judge. Failure to timely file objections to the Recommendation set forth above will

result in the waiver of the right to appeal from a judgment of this Court based upon such

Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v.

Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).

The Clerk of the Court is DIRECTED to mail a copy of this Report and

Recommendation to the pro se Petitioner by certified mail, return receipt requested, to his last

known address as reflected on the docket sheet. Upon entry of this Report and

the Supreme Court required a district court to compare the elements of the state crime with the generic

version of the enumerated federal offense. If the state crime was “the same as, or narrower than, the

relevant generic offense,” then the state crime qualified as an enumerated offense. 136 S.Ct. at 2257; see

also Taylor v. United States, 495 U.S. 575, 599 (1990). The Supreme Court reaffirmed this approach in

Mathis, but added that, because the inquiry focused on the generic offense, a court “may not ask whether

the defendant’s conduct – his particular means of committing the crime – falls within the generic

definition.” 136 S.Ct. at 2257. Accordingly, the Supreme Court concluded that if the elements of the

state law crime are broader than the generic version of an enumerated federal offense, then the state law

conviction could not serve as a predicate for career offender status under the Armed Career Criminal Act.

Id.

Recommendation, the Clerk of the Court is further DIRECTED to terminate the Magistrate

Judge association with this case.

DATED: November 3, 2017.

Bá eÉuxÜà jA gÜâÅuÄx

ROBERT W. TRUMBLE

UNITED STATES MAGISTRATE JUDGE