# Hubbard v. Brown

> District Court, N.D. West Virginia · December 28, 2022

URL: https://www.frixlaw.com/law-library/cases/10726563

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** December 28, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10726563

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Wheeling

LONNIE W. HUBBARD,
Petitioner,
V. Civil Action No. 5:22-CV-196
Judge Bailey
S. BROWN, Acting Warden,
Respondent.
ORDER RE-ADOPTING REPORT AND RECOMMENDATIONS
The above referenced case is before this Court upon Magistrate Judge Mazzone’s
recommendation that petitioner's Petition for Habeas Corpus Pursuant 28 U.S.C. § 2241
[Doc. 1] be denied and dismissed without prejudice. For the reasons that follow, this Court
will adopt the R&R.
|. BACKGROUND
Petitioner is a federal inmate housed at FCI Hazleton and is challenging the legality
of his conviction from the Eastern District of Kentucky.’ On December 3, 2015, July 21,
2016, and November 3, 2016, petitioner was charged in a series of indictments with a total
of seventy-three (73) counts related to drug distribution while petitioner was a registered
pharmacist licensed to practice in Kentucky. During an eight day trial, the United States
moved to dismiss two of the counts, and at the end of the trial petitioner was found guilty

‘Unless otherwise specified, the information contained in the “Background” section
of this opinion is take from petitioner's criminal docket available on PACER. See United
States v. Hubbard et al, 5:15-CR-104-DCR-HAI-1 (E.D. Ky. 2016).

on all remaining counts. On June 30, 2017, petitioner was sentenced to a term of three-
hundred and sixty months imprisonment for one count of conspiracy to distribute and
dispense oxycodone and a substance used to manufacture a controlled substance in
violation of 21 U.S.C. § 846; twelve counts of aiding and abetting the distribution of
pseudoephedrine in violation of 21 U.S.C. § 841(c)(2) and 18 U.S.C. § 2; one count of
distribution of hydrocodone in violation of 21 U.S.C. § 841(a)(1); thirty-eight counts of
distribution of oxycodone in violation of 21 U.S.C. § 841(a)(1); five counts of aiding and
abetting the distribution of oxycodone in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.
§ 2; one count of maintaining a drug -involved premise in violation of 21 U.S.C. § 856(a)(1);
one count of conspiracy to commit money laundry in violation of 18 U.S.C. § 1956(h); three
counts of engaging in monetary transactions in property derived from specified unlawful
activity in violation of 18 U.S.C. § 1957; and nine counts of aiding and abetting in monetary
transactions in property derived from specified unlawful activity in violation of 18 U.S.C. §
1957 and 2. Petitioner appealed, but the Sixth Circuit affirmed the judgment of the district
court. The Supreme Court denied his petition for writ of certiorari.
On April 2, 2021, petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody Under 28 U.S.C. § 2255, in which he alleged ineffective
assistance of counsel. The district court denied the petition and the Sixth Circuit denied
a certificate of appealability.
ll. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, the Court is not required to review, under a de novo or any other standard, the

factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). Nor is this Court required to conduct a de novo review when the party makes
only “general and conclusory objections 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).
In addition, failure to file timely objections constitutes a waiver of de novo review and
the right to appeal this Court’s Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889
F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.
1984). Pro se filings must be liberally construed and held to a less stringent standard than
those drafted by licensed attorneys, however, courts are not required to create objections
where none exist. Haines v. Kerner, 404 U.S. 519, 520 (1972); Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1971).
Here, objections to Magistrate Judge Mazzone’s R&R were due within fourteen (14)
days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules
of Civil Procedure. No objections were filed and this Court entered an order Adopting the
R&R. See [Doc. 9]. Petitioner informed this Court that he never received the R&R. See
[Doc. 10 & 11]. This Court permitted petitioner to file his objections by December 20, 2022.
See [Doc. 13]. Petitioner filed his objections [Doc. 15] on December 19, 2022. Accordingly,
this Court will review the portions of the R&R to which objection was filed under a de novo
standard of review. The remainder of the R&R will be reviewed for clear error.

. lil. DISCUSSION
In the petition, petitioner challenges the validity of his conviction under § 841
following the decision in Ruan v. United States, 142 S.Ct. 2370 (2022). Petitioner
specifically claims that in light of the Ruan decision, the crimes for which he was convicted
are no longer deemed criminal. See [Doc. 1]. Petitioner contends that he has met all three
prongs of the test set forth in In re Jones, 226 F.3d 328 (4th Cir. 2000). In particular, he
contends that he met the second prong of Jones because subsequent to his appeal and
first § 2255 motion, the Ruan case was decided and his convictions under § 841 should
therefore be reversed. Petitioner also contends that the remaining convictions, for
conspiracy, maintaining a drug-involved premise, and money laundering, are all dependent
on the convictions under § 841. For relief, petitioner asks this Court to vacate his
convictions.
21 U.S.C. § 841 makes it unlawful, “except as authorized, . . . for any person to
knowingly or intentionally . . . to manufacture, distribute, or dispense . . . a controlled
substance.” In Ruan, the Supreme Court held that “§ 841's ‘knowingly or intentionally’
mens rea applies to the ‘except as authorized’ clause. This means that once a defendant
meets the burden of producing evidence that his or her conduct was ‘authorized,’ the
Government must prove the Government must prove beyond a reasonable doubt that the
defendant knowingly or intentionally acted in an unauthorized manner.” Ruan, 142 S.Ct.
at 2376.
Generally, 28 U.S.C. § 2255 provides the exclusive means for a prisoner in federal
custody to test the legality of his detention. However, § 2255(e) contains a savings clause,

which allows a district court to consider a habeas petition brought by a federal prisoner
under § 2241 where § 2255 is “inadequate or ineffective to test the legality’ of the
detention. 28 U.S.C. § 2255; see also United States v. Poole, 531 F.3d 263, 270 (4th Cir.
2008). The fact that relief under § 2255 is procedurally barred does not render the remedy
inadequate or ineffective to test the legality of a prisoner's detention. In re Jones, 226
F.3d 328, 332 (4th Cir. 2000). In the Fourth Circuit, a § 2255 petition is only inadequate
or ineffective to test the legality of detention when:
(1) [A]t the time of conviction, settled law in this circuit or 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 gatekeeping provision of
§ 2255 because the new rule is not one of constitutional law.
Poole, 531 F.3d at 269 (quoting In re Jones, 226 F.3d at 333-34).
The Fourth Circuit found that the savings clause may apply to certain sentencing
challenges. It explained:
[W]e conclude that § 2255 is inadequate and 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) 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.
United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018). Because the requirements
of the savings clause are jurisdictional, a § 2241 petitioner relying on the § 2255(e) savings
clause must meet either the Jones test (if challenging the legality of his conviction) or the
Wheeler test (if challenging the legality of his sentence) for the court to have subject-
matter jurisdiction to evaluate the merits of the petitioner's claims. See Wheeler, 886 F.3d
at 423-26.
Here, the magistrate judge found that the petition should be dismissed because
petitioner cannot meet the tests under Jones or Wheeler. First, the magistrate found that
the petitioner could not meet the second prong of the Jones test. In particular, the
magistrate found that the crimes for which petitioner was convicted remains criminal
offenses and he therefore cannot meet the second element of Jones. [Doc. 6 at 8-9].
The R&R notes that “although courts have not evaluated the application of Ruan to the
Jones test, the application of Rehaif v. United States, 139 S.Ct. 2191 (2019) provides an
analogous example.” [Id. at 8]. In Rehaif, the Supreme Court held that the “knowingly”
mens rea in 18 U.S.C. § 922(g) applied to defendant's knowledge of the fact that he
belonged to the relevant category of persons barred from possessing a firearm. 139 S.Ct.
at 2200. However, the R&R notes that “this Court found that Rehaif did not change the
substantive law as required by the second element of Jones.” [Id. at 8]. Similarly, in Ruan,
the Supreme Court held that “[21 U.S.C.] § 841's ‘knowingly or intentionally’ mens rea

applies to the ‘except as authorized’ clause. This means that once a defendant meets the
burden of producing evidence that his or her conduct was ‘authorized,’ the Government
must prove beyond a reasonable doubt that the defendant knowingly or intentional acted
in an unauthorized manner.” Ruan 142 S.Ct. at 2376. Thus, the magistrate concluded
that “[a]s with Rehaif, the decision in Ruan, clarified the scope of the knowledge
requirement, but the statute in question remained a criminal offense.” [Doc. 6 at 9].
Next, the magistrate concluded that the petitioner could not meet the Wheeler test.
The R&R acknowledges that the petitioner specifically challenges his conviction, not his
sentence. However, the magistrate found that the petitioner could not meet the Wheeler
test to challenge his sentence as Ruan has not been deemed to apply retroactively. [Id.
at 9].
On December 19, 2022, petitioner filed his objections to the R&R. Therein,
petitioner raises three (3) objections to the R&R. First, petitioner objects to the R&R’s
finding that he cannot meet the second prong of the Jones test. See [Doc. 15 at 2-8].
Specifically, petitioner cites a number of cases, including Ruan v. United States, 142 S.Ct.
2370 (2022), Hahn v. Mosely, 931 F.3d 295 (4th Cir. 2019), Greer v. United States, 141
S. Ct 2090 (2021), and Moore v. Warden of FCI Edgefield, 557 F.Supp.3d 704 (D.S.C
Aug. 27, 2021) (Wooten, J.), to argue the magistrate judge’s rationale and interpretation
of the second prong of Jones is erroneous. See [id.]. Second, petitioner objects to the
magistrate judge’s finding that “the conduct for which petitioner was convicted is still illegal”
arguing that the magistrate judge did not evaluate the conduct petitioner was convicted for
under § 841. [Id. at 8]. Third, petitioner objects to the magistrate judge’s finding that he

cannot meet the Wheeler test to challenge his sentence because Ruan has not been
deemed to apply retroactively. [Id. at 9-10]. In support, petitioner argues that Ruan
created a new substantive rule and that new substantive rules apply retroactively to cases
on collateral review. [Id. at 9-10].
A de novo review of Magistrate Judge Mazzone’s R&R and the grounds in support
of petitioner's objections leads this Court to conclude that petitioner has failed to
demonstrate satisfaction of the § 2255 savings clause for the reasons contained in the
R&R and herein. Accordingly, petitioner's objections are overruled.
IV. CONCLUSION
Upon careful review of the above, it is the opinion of this Court that the Report and
Recommendation [Doc. 6] should be, and is, hereby ORDERED RE-ADOPTED for the
reasons more fully stated in the magistrate judge’s report. Accordingly, the petitioner's
objections [Doc. 15] are OVERRULED. This Court ORDERS that the § 2241 petition
[Doc. 1] be DENIED and DISMISSED WITHOUT PREJUDICE.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record and
to mail a copy to the pro se petitioner.
DATED: December 2022.

JOHN PRESTON BAILEY
UNITED STATES DISTRICT JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10726563. Public record. Not legal advice.