The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
HUGO RENE GOMEZ,
Petitioner,
v. CIVIL ACTION NO. 5:17-cv-01383
D. L. YOUNG,
Respondent.
MEMORMANDUM OPINION AND ORDER
The Court has reviewed the Petitioner’s February 27, 2017 Application Under 28 U.S.C. §
2241 for Writ of Habeas Corpus By a Person in State or Federal Custody (Document 1) and the
Memorandum in Support of Motion Pursuant to 28 U.S.C. § 2241 (Document 2), wherein the
Petitioner challenges the validity of his sentence. The Court has also reviewed the Amended
Memorandum in Support of Motion Pursuant to 28 U.S.C. § 2241 (Document 9), wherein the
Petitioner discusses the application of recent legal authority to his claim.
By Standing Order (Document 5) entered on February 28, 2017, this action was referred
to the Honorable Omar J. Aboulhosn, United States Magistrate Judge, for submission to this Court
of proposed findings of fact and recommendation for disposition, pursuant to 28 U.S.C. § 636. On
April 16, 2018, the Magistrate Judge directed a response, and the Respondent filed a Response to
Order to Show Cause and Motion to Dismiss, or in the Alternative, to Transfer (Document 14) on
My 29, 2018. The Petitioner filed the Movant’s Response to Respondent’s Motion to Dismiss or
Transfer (Document 16) on June 11, 2018. On November 7, 2018, the Magistrate Judge submitted
a Proposed Findings and Recommendation (PF&R) (Document 19), wherein it is recommended
that this Court grant the Respondent’s motion to dismiss and remove this matter from the Court’s
docket. The Petitioner timely filed objections to the PF&R, styled Movant’s Objections to the
Proposed Findings and Recommendation of the Magistrate Judge (Document 23). For the reasons
stated herein, the Court finds that the Petitioner’s objections should be overruled, the Magistrate
Judge’s PF&R adopted, and this matter dismissed.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Magistrate Judge’s PF&R sets forth the factual and procedural background of this case
in detail. The Court hereby incorporates those factual findings, but to provide context for the
ruling contained herein, provides the following summary.
On February 7, 2005, Mr. Gomez pled guilty to one count of conspiracy to distribute five
kilograms or more of cocaine and one count of illegal re-entry into the United States. He was
sentenced in the Middle District of North Carolina to 262 months of imprisonment. He alleges
that he was sentenced as a career offender based in part on a Texas conviction for possession with
intent to deliver a controlled substance. He asserts that the Texas conviction was properly
considered as a predicate controlled substance conviction at the time of his sentencing, but
subsequently decided case law establishes that it no longer qualifies as a predicate conviction.
The Fourth Circuit affirmed his conviction and sentence on direct appeal. Mr. Gomez filed
a petition pursuant to 28 U.S.C. § 2255, which was denied by the sentencing court and dismissed
on appeal. His appeal and § 2255 petition focused on his counsel and a District Court ruling
denying his attempt to withdraw his guilty plea. In April 2009, Mr. Gomez filed a Writ of Error
Audita Querela, arguing that he was improperly sentenced as a career offender. The Middle
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District of North Carolina construed the filing as a successive § 2255 motion and dismissed it. The
Middle District of North Carolina dismissed a third successive § 2255 motion in 2016, wherein
Mr. Gomez again challenged his sentence.
STANDARD OF REVIEW
This Court “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C).
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). In addition, this
Court need not conduct a de novo review when a party “makes 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). When reviewing
portions of the PF&R de novo, the Court will consider the fact that Plaintiff is acting pro se, and
his pleadings will be accorded liberal construction. Estelle v. Gamble, 429 U.S. 97, 106 (1976);
Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978).
DISCUSSION
The Petitioner asserts that his career offender designation is unlawful based on a change in
the law since the time of his sentencing. The PF&R explains that 28 U.S.C. § 2255 is “the
exclusive remedy for testing the validity of federal judgments and sentences unless there is a
showing that the remedy is inadequate or ineffective.” (PF&R at 7.) The Magistrate Judge
analyzed the case law related to the “savings clause” permitting certain challenges to convictions
and sentences under 28 U.S.C. § 2241 and concluded that the Petitioner’s claims could be
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considered only under § 2255. He found that the cases cited by the Petitioner as establishing a
change in law do not apply retroactively in this Circuit, and that any sentencing error cannot be
deemed a fundamental defect. Given the procedural history of Mr. Gomez’s prior collateral attacks
on his conviction and sentence, the Magistrate Judge recommends dismissing this case, rather than
transferring it to the sentencing court or to the Fourth Circuit.
The Petitioner objects, arguing that he has satisfied the standard set forth in United States
v. Wheeler, 886 F.3d 415 (2018), to permit his sentencing challenge via the savings clause. He
contends that settled law at the time of his sentencing established that state statutes could be
analyzed under the modified categorical approach to determine whether a prior conviction
qualified as career offender predicate. He argues that Descamps v. United States, 133 S. Ct. 2276
(2013), and Mathis v. United States, 136 S. Ct. 2243 (2016), effectively changed the law in the
Fourth Circuit to require courts to apply the categorical approach, focusing on whether the
elements of the prior offense of conviction sufficiently match the elements of the corresponding
generic predicate offense. He argues that Descamps and Mathis were substantive decisions that
apply retroactively, because they were based on existing precedent and narrowed the scope of a
criminal statute, and notes that no binding precedent has established that they do not apply
retroactively. The Petitioner further asserts that he cannot meet the gatekeeping provisions to file
a second or successive § 2255 petition because Descamps and Mathis were not Constitutional
decisions. He therefore argues that his sentence is marred by a fundamental defect that can be
corrected in a §2241 petition.
Generally, 28 U.S.C. § 2255 provides the exclusive means for a prisoner in federal custody
to test the legality of his detention. 28 U.S.C. § 2255. However, Section 2255(e) contains a
savings clause, which allows a district court to consider a habeas petition brought by a federal
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prisoner under Section 2241 where Section 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 Section 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 Section 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 recently
found that the savings clause may apply to certain sentencing challenges. It explained:
we 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).
Mr. Gomez is correct that no binding precedent in this Circuit addresses the retroactivity
of Mathis and Descamps for purposes of the savings clause.1 However, it is unnecessary to decide
1 As outlined in the PF&R, the Fourth Circuit has issued unpublished decisions finding that Mathis is not retroactively
applicable, and several district courts within this Circuit have reached the same conclusion.
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that issue because the Fourth Circuit has held, in a published opinion, that “sentencing a defendant
pursuant to advisory Guidelines based on a career offender status that is later invalidated does not
meet” the “remarkably high bar” of 28 U.S.C. § 2255(a). United States v. Foote, 784 F.3d 931,
936 (4th Cir. 2015). The Fourth Circuit later held that “a misapplied career offender enhancement”
under the advisory Guidelines would likewise not be a fundamental defect for purposes of the
savings clause in § 2241 petitions. Lester v. Flournoy, 909 F.3d 708, 715 (4th Cir. 2018).
Mr. Gomez’s sentence was imposed on June 6, 2005, several months after the United States
Supreme Court made the United States Sentencing Guidelines advisory in United States v. Booker,
543 U.S. 220, decided on January 12, 2005. Thus, even if Mr. Gomez could demonstrate that
Mathis and Descamps apply retroactively, and even if he could demonstrate that those decisions
establish that his Texas conviction is not a controlled substance offense within the meaning of the
sentencing guidelines, he would not be entitled to relief. The sentencing error he complains of is
the same as that considered in Foote: the incorrect classification of a prior conviction to support a
career offender designation. The sentencing judge was permitted, and indeed obligated, to
independently determine whether a sentence within or outside the calculated Guidelines range was
appropriate under the statutory sentencing factors contained in 18 U.S.C. § 3553(a). Because
binding precedent within this Circuit clearly forecloses relief on the grounds that the purported
sentencing error is not sufficiently grave to be deemed a fundamental defect, the Court finds it
unnecessary to evaluate the applicability of the other three Wheeler factors. Accordingly, the
Petitioner’s objections must be overruled, and the motion to dismiss must be granted.
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CONCLUSION
Wherefore, after thorough review and careful consideration, the Court ORDERS that the
Movant's Objections to the Proposed Findings and Recommendation of the Magistrate Judge
(Document 23) be OVERRULED and that the Magistrate Judge’s Proposed Findings and
Recommendation (Document 19) be ADOPTED. The Court further ORDERS that the
Respondent’s Response to Order to Show Cause and Motion to Dismiss, or in the Alternative, to
Transfer (Document 14) be GRANTED to the extent it seeks dismissal, that the Petitioner’s
Application Under 28 U.S.C. § 2241 for Writ of Habeas Corpus By a Person in State or Federal
Custody (Document 1) be DISMISSED, and that this matter be removed from the Court’s docket.
The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge
Aboulhosn, to counsel of record, and to any unrepresented party.
ENTER: February 22, 2019
Dire. Benger’
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF WEST VIRGINIA