Brecht v. Warden

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT BLUEFIELD

MICHAEL SEAN BRECHT,

Petitioner,

v. CIVIL ACTION NO. 1:19-00054

WARDEN, FCI McDowell,

Respondent.

MEMORANDUM OPINION AND ORDER

By Standing Order, this action was referred to United

States Magistrate Judge Cheryl A. Eifert for submission of

findings and recommendation regarding disposition pursuant to 28

U.S.C. § 636(b)(1)(B). Magistrate Judge Eifert submitted to the

court her Proposed Findings and Recommendation (“PF&R”) on

August 8, 2019, in which she recommended that the court deny

petitioner’s petition for writ of habeas corpus, grant

respondent’s motion to dismiss, dismiss this action with

prejudice, and remove this case from the court’s active docket.

(See ECF No. 12.)

In accordance with the provisions of 28 U.S.C. § 636(b),

petitioner was allotted fourteen days and three mailing days in

which to file any objections to Magistrate Judge Eifert’s

Findings and Recommendation. The failure of any party to file

such objections within the time allowed constitutes a waiver of

such party’s right to a de novo review by this court. Snyder v.

Ridenour, 889 F.2d 1363 (4th Cir. 1989). Objections were due by

August 26, 2019. (ECF No. 12.) On August 26, 2019, petitioner,

acting pro se, filed a motion seeking a thirty-day extension of

time to file objections to the PF&R, due to numerous lockdowns

hampering petitioner’s ability to properly research and present

his response to the PF&R. (See ECF No. 13.) The court had not

ruled on petitioner’s motion for extension of time when, on

September 17, 2019, petitioner filed his objections to the PF&R.

(ECF No. 14.) The court notes that petitioner filed his

objections within the thirty-day extension period he requested

in his motion. For good cause shown, and out of fairness to the

petitioner, the court GRANTS petitioner’s motion for the

extension of time to file objections to the PF&R, (ECF No. 13),

and as such, his objections were timely filed on September 17,

2019.

I. Factual Background

On January 12, 2011, a federal grand jury, sitting in the

Northern District of Iowa, submitted a Third Superseding

Indictment charging Michael Sean Brecht (“petitioner”) as a

participant in a 12-member conspiracy. See United States v.

Rivera-Mendoza et al., No. 1:10-cr-00090-LRR-JSS-7 (N.D. Iowa

2011) (ECF No. 135). The indictment alleged in Count One that

the object of the conspiracy was to knowingly and intentionally

distribute Schedule II controlled substances, including 500

grams or more of a substance containing a detectable amount of

methamphetamine, and 50 grams or more of pure methamphetamine,

in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846.

Id. The indictment further charged petitioner in Count Six with

knowingly and intentionally possessing with intent to distribute

a substance containing a detectable amount of methamphetamine,

in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Id. at

4. The indictment stated that at the time he committed both

offenses, petitioner had been convicted of a felony drug

offense: a 2010 conviction for a felony failure to affix a drug

tax stamp imposed in the Iowa District Court in and for Linn

County. Id. at 2, 4.

On January 14, 2011, petitioner entered into a plea

agreement with the United States. Id. (ECF No. 234). In the

agreement, petitioner consented to plead guilty to Count One of

the indictment and, in exchange, the United States agreed to

drop any remaining charges contained in the indictment and to

file no additional drug charges based on the information

contained in the indictment. Id. at 1-2. Petitioner

acknowledged that his guilty plea exposed him to a mandatory

minimum sentence of 20 years imprisonment and a maximum

punishment of life in prison. Id. at 1. Petitioner stipulated

that he had been convicted of three prior offenses: on August

16, 2002, he was convicted of attempting to elude law

enforcement in the Iowa District Court in and for Jones County;

on January 24, 2003 he was convicted of possessing anhydrous

ammonia with the intent to manufacture methamphetamine in the

Iowa District Court in and for Linn County; and on May 19, 2010

he was convicted of a drug tax stamp violation in the Iowa

District Court in and for Linn County. Id. at 3.

On February 11, 2011, petitioner pled guilty in open court

before a United States Magistrate Judge to Count One of the

indictment. Id. (ECF No. 183). The Magistrate Judge issued a

Report and Recommendation finding that petitioner entered into

the plea agreement knowingly and voluntarily, and there existed

a sufficient factual basis for the plea. Id. (ECF No. 184).

The Magistrate Judge recommended that the District Court for the

Northern District of Iowa (“Sentencing Court”) accept

petitioner’s plea of guilty. Id. at 5. The Sentencing Court

did so on February 14, 2011. Id. (ECF No. 189).

Petitioner’s sentencing hearing was held on June 1, 2011.

Id. (ECF Nos. 351, 508). At the hearing, the Sentencing Court

noted that the United States Sentencing Guidelines sentencing

range for the offense of conviction was 37 to 46 months.

However, as there was an applicable 240 months mandatory minimum

sentence due to the enhancement under § 851, the Guidelines

range was not relevant to the sentence. Id. (ECF No. 508 at 6).

The Sentencing Court sentenced petitioner to the mandatory

minimum of 240 months. Id. at 8-9. At the request of the

United States, the Sentencing Court dismissed Count Six of the

indictment. Id. at 11. The United States noted that

petitioner’s plea agreement did contain an appellate waiver.

Id. at 11-12.

Petitioner’s judgment was entered on June 1, 2011. Id.

(ECF No. 352). Petitioner did not file an appeal or any motion

for habeas relief. On June 11, 2015, the Sentencing Court

considered, under its own motion, whether petitioner qualified

for relief under 18 U.S.C. § 3582(c)(2). Id. (ECF No. 564).

The Sentencing Court determined that petitioner was not eligible

for a sentence reduction under Amendment 782, as he was

sentenced pursuant to a statutory mandated minimum. Id. at 3-4.

On January 18, 2019, petitioner submitted the instant

§ 2241 petition. Brecht v. Warden, No. 1:19-cv-00054 (S.D.W.

Va.) (ECF No. 1.)

II. Petitioner’s Objections

Petitioner objects to the PF&R’s factual finding that his

2010 conviction for failure to affix a drug tax stamp was an

actual drug crime used as a predicate felony offense for the

purposes of enhancement. Instead, petitioner claims his

probation officer determined that the 2010 conviction was not an

actual drug crime and was not actually used as any type of

predicate for his sentence enhancement. Petitioner claims his

sentence was enhanced based only for his prior drug offense of

“Possession of Anhydrous Ammonia with the Intent to Manufacture

Methamphetamine” in violation of Iowa Crim. Code Sec.

124.401(4)(d), Case # FECR-60795. (ECF No. 14 at 2.)

Petitioner then objects that his prior “Iowa controlled

substance offense” – the Possession of Anhydrous Ammonia with

the Intent to Manufacture Methamphetamine, in violation of Iowa

Crim. Code Sec. 124.401(4)(d) – may not serve as a predicate

conviction qualifying him for a sentencing enhancement for a

“prior felony drug offense.” (Id. at 3.) He argues that,

applying the categorical approach, his prior state conviction

for Possession of Anhydrous Ammonia with the Intent to

Manufacture Methamphetamine does not qualify as predicate

offense. (Id.) He relies on the decision in Mathis v. United

States, 136 S. Ct. 2243 (2016), as his central support for this

argument, among other cases. (See id. at 3, 5-6.)

Petitioner further uses Mathis to object to the PF&R’s

conclusion that he cannot bring his claims under § 2241, as he

contends that he may proceed under § 2241 because a motion under

§ 2255 would be inadequate or ineffective. Petitioner argues

that his motion meets the conditions under which a § 2255 motion

would be inadequate or ineffective based upon application of the

three-part test laid out by the Seventh Circuit in Brown v.

Caraway, 719 F.3d 583, 586 (7th Cir. 2013) (“First, the prisoner

must show that he relies on a ‘statutory-interpretation case,’

rather than a ‘constitutional case.’ Second, the prisoner must

show that he relies on a retroactive decision that he could not

have invoked in his first § 2255 motion. ‘The third condition

is that [the] sentence enhancement . . . [is] a grave enough

error to be deemed a miscarriage of justice.’”) (citations

omitted). As to the first condition, petitioner argues that

Mathis is a case of statutory interpretation directing such

claims must be brought under § 2241. He next explains that

Mathis is a substantive rule, and thus should be retroactively

applied. And he argues that his sentence enhancement is a grave

enough error to be deemed a miscarriage of justice because

application of Mathis to remove the sentencing enhancement in

his case would invalidate the application of the mandatory

minimum guideline and so would demand resentencing.

Lastly, petitioner claims he is “actually innocent” of the

offense used as the basis for the sentencing enhancement, and

thus his sentence is faulty for that reason.

Petitioner argues that these reasons create a prima facie

case for his § 2241 petition that warrant, at minimum, the

appointment of counsel for further actions taken in this case.

III. Standard of Review of Pro Se Objections

Pursuant to Fed. R. Civ. P. 72(b), the court must “make a

de novo determination upon the record . . . of any portion of

the magistrate judge's disposition to which specific written

objection has been 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. See Thomas v. Arn, 474 U.S. 140, 149–50 (1985).

Furthermore, de novo review is not required “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, 47–48 (4th

Cir. 1982); see also United States v. Midgette, 478 F.3d 616,

622 (4th Cir. 2007) (“[T]o preserve for appeal an issue in a

magistrate judge's report, a party must object to the finding or

recommendation on that issue with sufficient specificity so as

reasonably to alert the district court of the true ground for

the objection.”); McPherson v. Astrue, 605 F. Supp. 2d 744, 749

(S.D.W. Va. 2009) (“[F]ailure to file a specific objection

constitutes a waiver of the right to de novo review.”).

“A document filed pro se is ‘to be liberally construed.’ ”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.

Gamble, 429 U.S. 97, 106 (1976)). Specifically as to objections

to a PF&R, courts are “under an obligation to read a pro se

litigant's objections broadly rather than narrowly.” Beck v.

Comm'r of Internal Revenue Serv., 1997 WL 625499, at *1-2

(W.D.N.C. June 20, 1997) (citing Orpiano, 687 F.2d at 48).

However, objections that are “unresponsive to the reasoning

contained in the PF&R” are irrelevant and must be overruled.

Kesterson v. Toler, 2009 WL 2060090, at *1 (S.D.W. Va. July 7,

2009) (citing Orpiano, 687 F.2d at 47).

IV. Discussion

A. Petitioner’s Objections Regarding Sentence Enhancement

Petitioner objects to the PF&R’s factual finding that his

2010 conviction for failure to affix a drug tax stamp was an

actual drug crime used as a predicate felony offense for the

purposes of enhancement. In consideration of this objection,

this court reviewed the record, and specifically reviewed the

Information filed by the United State on February 9, 2011, which

gave notice of the United States’ intention to seek an enhanced

penalty due to petitioner’s prior conviction for a felony drug

offense. See Rivera-Mendoza et al, No. 1:10-cr-00090-LRR-JSS-7

(ECF No. 180). The Information makes it expressly clear that

petitioner’s enhanced sentence was in fact due to his prior

felony conviction for failure to affix a drug tax stamp. See

id. Specifically, the Information states that “The United

States intends to enhance defendant's sentence based upon one of

defendant's two prior convictions for a felony drug offense. In

particular the United States relies upon the following

conviction: On or about May 19, 2010, defendant MICHAEL SEAN

BRECHT was convicted in State of Iowa v. Michael Sean Brecht, in

the Iowa District Court in and for Linn County, Case No. FECR

085606, of felony failure to affix drug tax stamp.” Id. The

government then attached a certified copy of that felony

conviction as Exhibit 1. Id.; id. Ex. 1. Thus, the court

OVERRULES this objection.

Petitioner’s following objection – that his prior

Possession of Anhydrous Ammonia with the Intent to Manufacture

Methamphetamine may not serve as a predicate conviction

qualifying him for a sentencing enhancement – is moot. The

record clearly reflects that the government relied upon

petitioner’s prior offense of felony failure to affix a drug tax

stamp to enhance his sentence, not the prior Possession of

Anhydrous Ammonia with the Intent to Manufacture

Methamphetamine. See supra. Thus, it is irrelevant whether

Possession of Anhydrous Ammonia with the Intent to Manufacture

Methamphetamine may or may not serve as a qualifying felony drug

offense for sentencing enhancement purposes. The court

OVERRULES this objection as moot.

B. Objections to Savings Clause Analysis

Petitioner also objects to the PF&R’s conclusion that he

cannot bring his claims under § 2241, as he contends that he may

proceed under § 2241 because a motion under § 2255 would be

inadequate or ineffective.

i. Standard for the Savings Clause Exception

The savings clause creates a narrow exception allowing a

§ 2255 claim to be brought under § 2241 when § 2255 is

inadequate and ineffective. For challenges to a sentence, a

petitioner must show: (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)

(citing In re Jones, 226 F.3d 328, 333–34 & n.3 (4th Cir.

2000)). Wheeler makes clear that challenges to “fundamental

sentencing errors” are allowed under § 2241 if the claim meets

all four savings clause requirements. Id. at 428. The

petitioner bears the burden of establishing that he satisfies

all four Wheeler savings clause criteria.

ii. Analysis of the Savings Clause Criteria

The second Wheeler condition requires that petitioner’s

sentence now be illegal due to a new rule that has been made

retroactive on collateral review. Id. at 429. Petitioner is

unable to meet this requirement, as courts in both the Eighth

Circuit and Fourth Circuit have overwhelmingly recognized that

the decision in Mathis neither created a new change in the

Eighth Circuit’s substantive law, nor does it apply

retroactively on collateral review. See Martin v. United

States, 904 F.3d 594, 597 (8th Cir. 2018) (noting that Mathis

was “did not announce ‘a new rule of constitutional law, made

retroactive to cases on collateral review’” as it was “simply

the Supreme Court’s latest interpretation of the categorical

approach the Court has long applied in deciding whether a prior

conviction is an ACCA violent felony”) (citations omitted);

Muhammad v. Wilson, 715 F. App'x 251, 252 (4th Cir. 2017)

(“Mathis did not announce a substantive change to the law.

Rather, these cases reiterated and clarified when to apply the

categorical approach or the modified categorical approach”); see

also United States v. Crawford, 2018 WL 1136896, at *4 (D. Neb.

Mar. 1, 2018) (“To the extent [the petitioner] argues that

Descamps and Mathis furnish him relief, those cases are not

given retroactive effect on collateral review”); Trice v. United

States, 2017 WL 4685070, at *2 (D. Minn. July 18, 2017), aff'd,

2018 WL 2120611 (8th Cir. Mar. 26, 2018) (“The principle of law

set forth in Mathis . . . is not a new rule at all”); Blake v.

United States, 2017 WL 2655098, at *1 (D. Minn. June 20, 2017),

aff'd, 2017 WL 6603620 (8th Cir. Oct. 24, 2017) (“Mathis,

however, does not represent a change in the law; instead, its

decision was dictated by decades of prior precedent”) (quotation

omitted); United States v. Saunders, 2017 WL 1612542, at *3

(W.D. Va. Apr. 28, 2017) (holding that “Mathis did not announce

a new rule of law” and recognizing “‘courts applying Mathis have

consistently reached the same conclusion’”) (quoting United

States v. Taylor, 672 F. App'x 860, 864 (10th Cir. 2016)).

Petitioner relies on cases in the Seventh Circuit, such as

Holt v. United States, 843 F.3d 720, 721-22 (7th Cir. 2016), in

his argument that Mathis is a substantive change in the law to

be applied retroactively. This reliance is misplaced, for when

analyzing the first and second Wheeler criteria, courts are to

look to the law of the circuit where a defendant was convicted.

This is because in interpreting the phrase “this circuit,” as

used in savings clause standards (1) and (2), the Fourth Circuit

has held that this refers to the law of the petitioner’s circuit

of conviction and sentencing. See Hahn v. Moseley, 931 F.3d

295, 301 (4th Cir. 2019) (“In evaluating substantive claims

under the savings clause, we look to the substantive law of the

circuit where a defendant was convicted.”). In this case, as

petitioner was convicted in the Northern District of Iowa, which

sits within the Eighth Circuit, it is Eighth Circuit substantive

law that controls the analysis of the first two Wheeler factors.

Thus, Seventh Circuit law is irrelevant to this inquiry when

there is dispositive and on-point Eighth Circuit law that states

Mathis “did not announce ‘a new rule of constitutional law, made

retroactive to cases on collateral review.’” Martin v. United

States, 904 F.3d 594, 597 (8th Cir. 2018) (quoting 28 U.S.C. §

2255(h)(2)).

Because Mathis does not announce a new substantive change

in Eight Circuit law nor has it been held by the Eighth Circuit

to apply retroactively, petitioner cannot satisfy the second

Wheeler criteria. Petitioner is unable to bear his burden and

show that all four criteria of the savings clause are met, and

thus his claims are not cognizable in a § 2241 petition.

Petitioner’s objection that he may proceed under § 2241 is

OVERRULED.

C. Objection of Actual Innocence

Petitioner also claimed in his motion objecting to the PF&R

that he is “actually innocent” of the offense used as the basis

for the sentencing enhancement, and thus his sentence is faulty

for that reason. This is not an objection to the PF&R, but an

entirely new claim that petitioner has not raised before in this

matter. Petitioner may elect to file a new habeas petition to

make this new claim for actual innocence.1 However, objections

1 The court takes no position on the merits of such a claim

beyond noting the case of Daniels v. United States, 532 U.S.

374, 381–82 (2001).

that are “unresponsive to the reasoning contained in the PF&R”

are irrelevant and must be overruled. Kesterson v. Toler, 2009

WL 2060090, at *1 (S.D.W. Va. July 7, 2009) (citing Orpiano v.

Johnson, 687 F.2d 44, 47 (4th Cir. 1982)). Therefore, this

objection of actual innocence is OVERRULED.

III. Conclusion

The court has reviewed the record, the Magistrate’s

findings and recommendations, and petitioner’s objections. Each

of petitioner’s objections have been OVERRULED. The court

therefore adopts the Findings and Recommendation of Magistrate

Judge Eifert as follows:

1. Petitioner’s petition for writ of habeas corpus under

28 U.S.C. § 2241 is DENIED;

2. Respondent’s request for dismissal is GRANTED;

3. This action is DISMISSED; and

4. The Clerk is directed to remove this case from the

court’s active docket.

Additionally, the court has considered whether to grant a

certificate of appealability. See 28 U.S.C. § 2253(c). A

certificate will not be granted unless there is “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). The standard is satisfied only upon a showing that

reasonable jurists would find that any assessment of the

constitutional claims by this court is debatable or wrong and

that any dispositive procedural ruling is likewise debatable.

Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.

McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,

683-84 (4th Cir. 2001). The court concludes that the governing

standard is not satisfied in this instance. Accordingly, the

court DENIES a certificate of appealability.

The Clerk is further directed to forward a copy of this

Memorandum Opinion and Order to counsel of record and

unrepresented parties.

IT IS SO ORDERED this 30th day of March, 2020.

ENTER:

Rauil A Dads

David A. Faber

Senior United States District Judge

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