Opinion

Hagins v. Kallis

Court
District Court, N.D. West Virginia
Filed
Mar 19, 2019
Cited by
0 cases
Authority
More cited than 32.7%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

SEAN L. HAGINS,

Petitioner,

v. Civil Action No. 5:17CV21

(STAMP)

S. KALLIS, Warden,

Respondent.

MEMORANDUM OPINION AND ORDER

AFFIRMING AND ADOPTING REPORT AND

RECOMMENDATION OF MAGISTRATE JUDGE,

OVERRULING PETITIONER’S OBJECTIONS AND

DISMISSING CIVIL ACTION WITHOUT PREJUDICE

I. Background

The pro se1 petitioner filed a petition for habeas corpus

under 28 U.S.C. § 2241. ECF Nos. 1, 16. In the petition, the

petitioner contends that his enhanced sentence as a career offender

is invalid because: (1) his two prior convictions for possession

with intent to distribute within 1000 feet of a school no longer

qualify as predicate offenses (ECF Nos. 16 at 5, 16-1 at 6-9); (2)

acquitted conduct cannot support a sentencing enhancement (ECF Nos.

16 at 5, 16-1 at 6, 9-11); and (3) the Court’s enhancement based on

petitioner’s alleged purchase of weapons in exchange for money and

drugs was improper because the petitioner must have possessed the

weapon in connection to or with another felony, and because “there

1“Pro se” describes a person who represents himself in a court

proceeding without the assistance of a lawyer. Black’s Law

Dictionary 1416 (10th ed. 2014).

is no evidence that the amount of drugs was enough to count as a

felony” (ECF No. 16-1 at 11). The petitioner relies on the

following cases: Mathis v. United States, 136 S. Ct. 2243 (2016),

Cruz v. Att’y Gen., 452 F.3d 240 (3d Cir. 2006), United States v.

Wheeler, 886 F.3d 415 (4th Cir. 2018), Nelson v. Colorado, 137 S.

Ct. 1249 (2017), United States v. Watts, 519 U.S. 148 (1997),

United States v. Andrade-Calderon, 638 F. App’x 622 (9th Cir.

2016), Render v. Holder, 764 F.3d 1077 (9th Cir. 2014), James v.

United States, 550 U.S. 192 (2007), Johnson v. United States, 135

S. Ct. 2551 (2015), Johnson v. Mississippi, 486 U.S. 578 (1988),

United States v. Amerson, No. 17-1713 (6th Cir. 2018), I.N.S. v.

St. Cyr., 533 U.S. 289 (2001), and Boumediene v. Bush, 533 U.S. 723

(2008). Specifically, the petitioner argues that § 2255 is

inadequate or ineffective to test the legality of his detention

because the laws pertaining to his unlawful sentence and conviction

were adverse to him at the time he filed his first § 2255 motion.

ECF No. 16 at 9. The petitioner also suggests that laws have been

clarified and have authorized habeas corpus for petitioners who had

no earlier opportunity to challenge their conviction or sentence

that a change in law may negate. Id. at 9, ECF No. 16-1 at 5-6.

The petitioner requests that this Court grant the writ and issue an

immediate hearing, resentencing him without the enhancements based

on two prior convictions that can no longer qualify as predicates

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for a sentencing enhancement, and release him from custody

“immediately to time served.” ECF Nos. 16 at 8, 16-1 at 12.

United States Magistrate Judge James E. Seibert entered a

report and recommendation, in which he recommends that the § 2241

petition be denied and dismissed without prejudice. ECF No. 22

at 12.

The petitioner then filed objections. ECF No. 24. In his

objections, the petitioner first argues that the magistrate judge

erred by failing to apply the savings clause to the petitioner’s

sentence. ECF No. 24 at 1-2. Second, the petitioner argues that

the magistrate judge misapplied the law to the facts of his case.

Id. at 2. Third, the petitioner argues that the magistrate judge

erred by concluding that acquitted conduct may still be used in

sentencing calculations as long as calculations are proven by

preponderance of the evidence rather than beyond a reasonable

doubt. Id. at 2, 8.

For the reasons set forth below, the report and recommendation

of the magistrate judge (ECF No. 22) is affirmed and adopted, and

the petitioner’s objections (ECF No. 24) are overruled.

II. Applicable Law

Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de

novo review of any portion of the magistrate judge’s recommendation

to which an objection is timely made. Because the petitioner filed

objections to the report and recommendation, the magistrate judge’s

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recommendation will be reviewed de novo as to those findings to

which the petitioner objected. As to those findings to which

objections were not filed, all findings and recommendations will be

upheld unless they are “clearly erroneous or contrary to law.” 28

U.S.C. § 636(b)(1)(A). As the Supreme Court of the United States

stated in United States v. United States Gypsum Co., “a finding is

‘clearly erroneous’ when although there is evidence to support it,

the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.”

333 U.S. 364, 395 (1948). Because the petitioner filed objections

to the report and recommendation, the magistrate judge’s

recommendation will be reviewed de novo.

III. Discussion

First, the magistrate judge correctly found that since the

petitioner’s claims relate to the execution of a sentence or

calculation of a sentence, they are properly contested either on

direct appeal or in a 28 U.S.C. § 2255 proceeding; thus, the

magistrate judge treated petitioner’s petition as a § 2255

petition. Id. at 9. Further, the magistrate judge appropriately

found that the petitioner is not entitled to application of the

savings clause. Id. at 9. Specifically, since the petitioner is

not challenging his conviction, the Jones test does not apply and

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Wheeler’s four-prong test applies.2 As to the first prong, at the

time of sentencing, settled law established the legality of the

sentence imposed. However, petitioner cannot meet the second prong

of the Wheeler test, because any change to settled law which

2Under In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000), a

remedy based on 28 U.S.C. § 2255 is inadequate and ineffective to

test the legality of a conviction only when the following

conditions are satisfied:

(1) at the time of 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

§ 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.

The test pronounced in United States v. Wheeler, 886 F.3d 415, 429

(4th Cir. 2018), sets forth the following four conditions in order

for a court to find that a remedy based on 28 U.S.C. § 2255 is

inadequate and ineffective to test the legality of a conviction:

(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) 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.

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established the legality of his sentence has not been deemed to

apply retroactively to cases on collateral review. Thus, the

magistrate judge correctly concluded that the third and fourth

parts to the test do not need to be considered, and that the

petitioner is not entitled to application of the savings clause.

Id.

Second, the magistrate judge properly found that the

petitioner’s reliance on Johnson, Mathis, Descamps, and Nelson is

misplaced. Id. at 10-11. As the magistrate judge explains, in

Johnson v. United States, 135 S. Ct. 2251, 2555-57(2015), the

Supreme Court held that the residual clause of 18 U.S.C. § 924 of

the Armed Career Criminal Act (“ACCA”) as unconstitutionally vague.

ECF No. 22 at 10. The only portion of the ACCA that was

invalidated was the section defining “violent felony” as any crime

punishable by more than one year in prison “or otherwise involves

conduct that presents a serious potential risk of physical injury

to another . . .” Id. (citing 18 U.S.C. § 924(e)(2)(B)(ii)).

Since the petitioner was not sentenced under the ACCA, he could not

raise an argument regarding the invalidity of the residual clause,

and is not entitled to relief under Johnson. Moreover, Mathis and

Descamps are not applied retroactively in this Circuit. See

Stewart v. United States, No. Elh-17-1408. 2017 WL 2361809, at *5

(D. Md. May 31, 2017); Brandon v. Wilson, No. 3:16cv142, 2017 WL

707497, at *4 (N.D. W. Va. Jan. 30, 2017). Lastly, the magistrate

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judge correctly indicated there is no indication that Watts has

been overruled by other cases, including Nelson. ECF No. 22 at 11.

In sum, this Court agrees with the magistrate judge’s

conclusion. Specifically, the magistrate judge correctly found

that the petitioner is unable to satisfy the second prong of

§ 2255’s savings clause to seek relief under § 2241. Id. When 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 petition for lack of jurisdiction.

Therefore, this Court adopts and affirms the report and

recommendation in its entirety, and the petitioner’s § 2241

petition is denied and dismissed without prejudice.

IV. Conclusion

For the reasons discussed above, the report and recommendation

of the magistrate judge (ECF No. 22) is AFFIRMED and ADOPTED and

the petitioner’s objections (ECF No. 24) are OVERRULED. It is

further ORDERED that this civil action be DISMISSED WITHOUT

PREJUDICE and STRICKEN from the active docket of this Court.

Should the petitioner choose to appeal the judgment of this

Court to the United States Court of Appeals for the Fourth Circuit

on the issues to which objection was made, he is ADVISED that he

must file a notice of appeal with the Clerk of this Court within 60

days after the date of the entry of this order.

IT IS SO ORDERED.

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The Clerk is DIRECTED to transmit a copy of this memorandum

opinion and order to the pro se petitioner by certified mail and to

counsel of record herein. Pursuant to Federal Rule of Civil

Procedure 58, the Clerk is DIRECTED to enter judgment on this

matter.

DATED: March 19, 2019

/s/ Frederick P. Stamp, Jr.

FREDERICK P. STAMP, JR.

UNITED STATES DISTRICT JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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