Clay v. Saad

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

SAMUEL LEWACO CLAY,

Petitioner,

v. Civil Action No. 1:17cv109

(Judge Keeley)

JENNIFER SAAD, Warden,

Respondent.

REPORT AND RECOMMENDATION

I. Background

On June 20, 2017, Samuel Lewaco Clay (“Petitioner”), an inmate at FCI Gilmer in

Glenville, West Virginia, filed a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2241

challenging the validity of his enhanced sentence in the United States District Court for the

Eastern District of Kentucky. ECF No. 1. Along with his petition, Clay filed a Motion to Correct

Sentence Pursuant to Actual Innocence of Being a Career Criminal. ECF No. 2. Pursuant to a

Notice of Deficient Pleading, on July 7, 2017, Petitioner paid the $5.00 filing fee. ECF No. 6. On

July 10, 2017, the undersigned made a preliminary review of the petition, determined that

summary dismissal was not warranted, and issued an Order to Show Cause to the Respondent.

ECF No. 7. On August 3, 2017, the Respondent filed a Motion to Dismiss and Response to Order

to Show Cause with a memorandum in support. ECF Nos. 9 & 10. Because Petitioner was

proceeding pro se, on August 9, 2017, a Roseboro Notice was issued; on August 21, 2016,

Petitioner filed his response in opposition. ECF Nos. 12 & 14. By Order entered on December

13, 207, Petitioner’s June 20, 2017 Motion to Correct Sentence Pursuant to Actual Innocence of

Being a Career Criminal was construed as a memorandum in support and the Clerk was directed

to modify its docket entry to reflect the same. ECF No. 16.

This matter is now pending before the undersigned for a Report and Recommendation

pursuant to LR PL P 2.

II. Facts1

On June 1, 2006, in the Eastern District of Kentucky, Petitioner was charged in three

counts of a three-count indictment in Count One with possession with intent to distribute a

mixture or substance containing a detectable amount of cocaine base (crack cocaine), in violation

of 21 U.S.C. § 841(a)(l); in Count Two with possession of a firearm in furtherance of a drug

trafficking crime, in violation of 18 U.S.C. § 924(c); and in Count Three with being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); the indictment also contained two

counts of forfeitures, for currency, the firearm, and ammunition. ECF No. 1. On July 6, 2006, a

superseding indictment was entered, charging Petitioner in Count One-S with possessing with

intent to distribute five grams or more of a mixture or substance containing a detectable amount

of cocaine base (crack cocaine), in violation of 21 U.S.C. § 841(a)(l); in Count Two-S with

possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §

924(c)(1); and in Count Three-S with being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(l). ECF No. 13. This superseding indictment also contained two counts of

forfeitures, for currency, the firearm, and ammunition. Id. On August 16, 2006, after his motion

to suppress evidence was denied, conditioned upon his right to appeal the denial of his motion to

1 The facts are taken from the Petitioner’s criminal Case No. 5:06cr83-JMH-REW-1 in the Eastern District of

Kentucky, available on PACER. Unless otherwise noted, the ECF entries in this section refer to that criminal

case. 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.’”).

suppress, Petitioner pled guilty to Count One-S, possession with intent to distribute crack

cocaine and to the forfeiture in Count Four. See ECF Nos. 27, 30, & 69 at 1; see also ECF No.

55 at 1. On December 11, 2006, Petitioner was sentenced to 262 months imprisonment as a

career offender under § 4B1.1 of the United States Sentencing Guidelines (“USSG”) and to 8

years of supervised release on Count One-S and the remaining charges were dismissed. ECF No.

42. Petitioner appealed the denial of his motion to suppress but on February 4, 2008, by

unpublished opinion, the Sixth Circuit Court of Appeals affirmed the district court’s judgment.

ECF No. 55. Clay’s petition to the United States Supreme Court for a writ of certiorari was

denied on June 2, 2008. ECF No. 58.

On June 10, 2009, Petitioner filed his first Motion to Vacate under 28 U.S.C. § 2255,

raising claims of counsel’s ineffectiveness for advising him to plead guilty instead challenging

the indictment and his career offender status; for not adequately challenging the drug amount

listed in the presentence investigation report (“PSR”); and for failing to attack the indictment as

defective because it did not state the drug amount. ECF No. 63 at 4. On May 13, 2010, a report

and recommendation by the magistrate judge recommended that the § 2255 motion be denied as

untimely, as barred by Petitioner’s plea agreement waiver, and on the merits. ECF No. 69 at 8.

By Order entered on January 11, 2011, the R&R was adopted and the § 2255 motion was denied

with no certificate of appealability. ECF No. 71.

On July 2, 2013, Petitioner filed a 18 U.S.C. § 3582 Motion for Retroactive Application

of Sentencing Guidelines to Crack Cocaine Offenses. ECF No. 73. It was denied by Order

entered July 15, 2013. ECF No. 74. Petitioner’s appeal of the same was dismissed on April 15,

2014, by the Sixth Circuit Court of Appeals’ Order affirming the district court’s judgment. ECF

No. 80.

On December 30, 2014, Petitioner filed another 18 U.S.C. § 3582 Motion to Reduce

Sentence, arguing that based upon the Sentencing Commission’s recent Amendment 782 to the

USSG, he was entitled to be resentenced. ECF No. 82. By Order entered on March 24, 2015, the

motion was denied. ECF No. 83.

On or about June 7, 2013 [see ECF No. 84-1 at 22] Petitioner filed a 28 U.S.C. § 2244

motion with the Sixth Circuit, seeking leave to file a second or successive § 2255 motion

pursuant to the Supreme Court’s decision in Johnson v. United States,2 arguing that he no longer

qualified as a career offender under § 4B1.1 of the USSG, because post-Johnson, his Kentucky

predicate conviction for assault under extreme emotional disturbance did not meet the definition

of a “crime of violence.” ECF No. 84-1 at 18. On December 5, 2016, the Sixth Circuit rejected

Petitioner’s argument, holding that the assault conviction qualified under the section’s elements

clause, not the residual clause potentially invalidated by Johnson, and denied Petitioner

permission to file a second or successive § 2255 motion. ECF No. 86.

Nonetheless, on January 23, 2017, despite being denied permission to file a second or

successive § 2255 motion, Petitioner filed a second § 2255 motion in the sentencing court, again

arguing that he no longer qualified as a career offender under § 4B1.1 of the USSG after Johnson

v. United States, supra, and Beckles v. United States.3 On March 3, 2017, the District Court

adopted the magistrate judge’s earlier R&R and denied and dismissed Plaintiff’s motion as

second or successive. ECF No. 91.

III. Contentions of the Parties

2 Johnson v. United States, 135 S. Ct. 2551 (2015)(holding unconstitutional the residual clause of the Armed Career

Criminal Act (ACCA) (18 U.S.C. § 924(e)(1) and its definitions). “Johnson is retroactive in cases on collateral

review[.]” Welch v. United States, 136 S. Ct. 1257, 1268 (2016).

3 Beckles v. United States, 136 S. Ct. 2510 (2016).

A. The Petition

In his pending 2241 petition, the Petitioner argues that under the savings clause of 28

U.S.C. § 2255(e), pursuant to the Supreme Court’s decision in Mathis v. United States,4 136

S.Ct. 2243 (2016), he is entitled to collaterally attack his sentence because he was improperly

sentenced as a career offender under USSG 4B1.1, an invalid enhancement and a due process

violation, and that he is actually innocent of the same. ECF No. 2 at 8; see also ECF No. 1 at 5 –

6 & 9. Petitioner also makes an unclear argument under Descamps v. United States,5 arguing

that his predicate offense of delivering a controlled substance is broader than the USSG’s

definition of a controlled substance offense. ECF No. 2 at 9.

For relief, the Petitioner seeks to be resentenced without the career criminal

enhancement. ECF No. 1 at 8.

B. Respondent’s Motion to Dismiss

Respondent argues that the petition should be dismissed because Petitioner’s claim

challenges the legality of his federal sentence itself as imposed, not the computation of his

sentence, and such claims must normally be raised on appeal, or raised by filing a § 2255 motion

in the sentencing court. Respondent further argues that Petitioner’s claims are barred because

they cannot meet the stringent standard set by the Fourth Circuit in In re Jones.6 Finally,

Respondent contends that Petitioner’s reliance on Mathis is misplaced, because Mathis does not

announce a new rule of law and is irrelevant to the determination of whether Petitioner can assert

4 Mathis v. United States, 136 S.Ct. 2243 (2016).

5 Descamps v. United States, 133 S. Ct. 2276 (2013).

6 In re Jones, 226 F.3d 328 (4th Cir. 2000).

his claims under § 2241, thus, Petitioner cannot meet the second prong of In re Jones. ECF No.

10 at 3 – 6.

C. Petitioner’s Response in Opposition

Petitioner reiterates his arguments and attempts to refute the Respondent’s on the same.

He argues that Mathis, Descamps, and Alleyne7 entitle him to relief, and that the state statute in

his case “does not comport with the violent act requirement” because the act “was performed

without violence” and the career criminal enhancement does not apply. ECF No. 14 at 2. He

insists that he is actually innocent of the career criminal enhancement. Id. at 3.

IV. Standard of Review

A. Motion to Dismiss

“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;

importantly, it does not resolve contests surrounding facts, the merits of a claim, or the

applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)

(citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356

(1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded

allegations are taken as true and the complaint is viewed in the light most favorable to the

plaintiff. Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980

F.2d at 952.

The Federal Rules of Civil Procedure “require only ‘a short and plain statement of the

claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

what the ... claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Courts long have cited the

7 Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151 (2013), was decided seven years after Petitioner’s 2006

conviction.

“rule that a complaint should not be dismissed for failure to state a claim unless it appears

beyond doubt that the plaintiff can prove no set of facts in support of [a] claim which would

entitle him to relief.” Conley, 355 U.S. at 45-46. In Twombly, the United States Supreme Court

noted that a complaint need not assert “detailed factual allegations,” but must contain more than

labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Conley,

550 U.S. at 555 (citations omitted). Thus, the “[f]actual allegations must be enough to raise a

right to relief above the speculative level,” [id. (citations omitted)], to one that is “plausible on its

face,” [id. at 570], rather than merely “conceivable.” Id. Therefore, in order for a complaint to

survive dismissal for failure to state a claim, the plaintiff must “allege facts sufficient to state all

the elements of [his or] her claim.” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765

(4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002); Iodice v.

United States, 289 F.3d 279, 281 (4th Cir. 2002)). In so doing, the complaint must meet a

“plausibility” standard, instituted by the Supreme Court in Ashcroft v. Iqbal, where it held that a

“claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft

v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Thus, a well-pleaded complaint must offer more than “a

sheer possibility that a defendant has acted unlawfully” in order to meet the plausibility standard

and survive dismissal for failure to state a claim. Id.

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, 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).

V. Analysis

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

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

habeas corpus, pursuant to section 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 section 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 Section 2241 petition under the “savings clause” of Section 2255:

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

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 clause only preserves claims in

which the petitioner alleges actual innocence of a conviction.8 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 n. 7 (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, although Petitioner’s arguments are somewhat difficult to discern, in his

memorandum in support of his petition and in his response in opposition to the Respondent’s

dispositive motion, in addition to Mathis, he relies on Alleyne v. United States, Descamps, and

other cases, specifically, “Dorsainvil” and “Bailey”9 to support his argument that his career

offender status should be vacated.

Petitioner’s attempt to invoke the holding in Alleyne is misplaced for a number of

reasons. In Alleyne, a defendant was convicted by a jury of using or carrying a firearm in

relation to a crime of violence under § 924(c)(1)(A). At sentencing, the district judge determined

that the defendant had brandished the firearm and sentenced the defendant to a seven-year

sentence based upon a mandatory minimum in accordance with the brandishing finding. 133

8 “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).

9 Petitioner failed to give citations for these cases, thus they will not be considered.

S.Ct. at 2151. The United States Supreme Court held that the brandishing determination by the

sentencing judge was improper because any factual issue triggering a statutory mandatory

minimum sentence must be submitted to a jury, rather than determined by a judge at sentencing,

because “the core crime and the fact triggering the mandatory minimum sentence together

constitute a new, aggravated crime, each element of which must be submitted to a jury.” Id. at

2162. This decision extended the Supreme Court’s prior holding in Apprendi v. New Jersey, 530

U.S. 466 (2000), in which the Court found that any fact which increases the statutory maximum

penalty for a crime as applicable to a specific defendant must be submitted to and decided by a

jury. See Simpson v. United States, No. 13-2373 2013 U.S. App. LEXIS 12902 *1 (7th Cir. July

10, 2013)(noting that Alleyne is an extension of Apprendi). The substance of Petitioner’s

argument appears to be that his sentence was enhanced pursuant to U.S.S.G. §4B1.1, based on

the sentencing court’s determination that he was a career offender. However, even if Petitioner’s

sentence were improperly enhanced by the sentencing court’s consideration of his predicate

convictions, he still fails to establish a claim that would permit this Court to afford him relief

under § 2241 based on Alleyne. A number of courts that have considered the question thus far

have found that Alleyne, in that it is a mere extension of Apprendi, is not intended to be

retroactively applied. See id., United States v. Reyes, No. 2:11cv6234, 2013 U.S. Dist. LEXIS

112386 *49-*56 (E.D. Pa. August 8, 2013); United States v. Eziolisa, No. 3:10cr39, 2013 U.S.

Dist. LEXIS 102150 *3 (S.D. Ohio July 22, 2013); United States v. Standley, No. 09-0022, 2013

U.S. Dist. LEXIS 98943 *7 (N.D. Okla. July 16, 2013); Affolter v. United States, No. 13-14313,

2013 U.S. Dist. LEXIS 104835 *2 (E.D. Mo. July 26, 2013).

Furthermore, Alleyne is clearly distinguishable from Petitioner’s case. In Alleyne, the

defendant was convicted by a jury. Conversely, here, Petitioner signed a plea agreement and thus

waived his right to have sentencing determinations made by a jury. See E.D. Ky, Case No.

5:06cr83, ECF No. 69 at 8. Moreover, in signing the plea agreement, Petitioner acknowledged

that he was aware that he faced a maximum sentence of not less than ten years no more than life.

Id. Petitioner’s sentence of 262 months, while more than he may have anticipated, clearly falls

with the statutory minimum of not less than ten and nor more than life imprisonment.

Likewise, Petitioner’s Descamps argument is unavailing. In Descamps, the Supreme

Court held that when determining whether a prior conviction qualifies as a predicate offense

under the Armed Career Criminal Act (“ACCA”), “sentencing courts may not apply the modified

categorical approach when the crime of which the defendant was convicted has a single,

indivisible set of elements.” 133 S. Ct. at 2282. Defendant, however, was sentenced as a career

offender under U.S.S.G. § 4B1.1, not as an armed career criminal under the ACCA. Accordingly,

Descamps is inapplicable to his claim.

Finally, the undersigned notes that Petitioner carefully avoids raising any challenge to his

underlying conviction and nowhere asserts that he is actually innocent of the crime to which he

pled guilty. Instead, he 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)10 for relief, arguing that his Kentucky predicate convictions are not qualifying

10 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, 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.

convictions for the career offender enhancement.11 However, Petitioner’s reliance on the Mathis

decision is also misplaced; Mathis did not decriminalize the conduct for which Petitioner was

convicted, and therefore, under Fourth Circuit precedent, he is unable to satisfy § 2255’s savings

clause to seek relief under § 2241.12 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

For the foregoing reasons, the undersigned recommends that the Respondent’s Motion to

Dismiss [ECF No. 9] be GRANTED and Petitioner’s Application for Writ of Habeas Corpus

Pursuant to 28 U.S.C. § 2241 [ECF No. 1] be DENIED and DISMISSED without prejudice.

Within fourteen (14) days after being served with a copy of this report and

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 be submitted to the United States District Judge.

Failure to timely file objections to this recommendation will result in waiver of the right to

appeal from a judgment of this Court based upon such recommendations. 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), cert. denied, 467 U.S. 1208 (1984).

11 The Sixth Circuit’s Order denying Petitioner’s § 2244 motion states that Petitioner’s prior convictions were for

distribution of cocaine base and for assault under extreme emotional disturbance. See E.D. Ky. Case No. 5:06cr83,

ECF No. 86 at 1.

12 The undersigned acknowledges that two circuits have held that the savings clause is applicable to challenges to

allegedly unlawful sentences. See Hill v. Masters, 836 F.3d 591, 596 (6th Cir. 2016) (concluding that the savings

clause permits § 2241 cases challenging fundamental sentencing error, including sentences above a statutory

maximum or mandatory guideline range) and Brown v, Caraway, 719 F.3d 583, 588 (7th Cir. 2013) (same).

However, the United States Supreme Court has yet to issue a decision that would support the opinions reached by

those circuits. Therefore, this Court should continue to follow Fourth Circuit precedent as outlined above.

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, and to transmit a copy electronically to all counsel of record.

This Report and Recommendation completes the referral from the district court. The

Clerk is directed to terminate the Magistrate Judge’s association with this case.

DATE: December 18, 2017

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/s/ _____________

MICHAEL J. ALOI

UNITED STATES MAGISTRATE JUDGE