Saleh v. Heckard

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT BECKLEY

MOHAMMED A. SALEH,

Petitioner,

v. CIVIL ACTION NO. 5:21-cv-00185

KATINA HECKARD,

Respondent.

MEMORANDUM OPINION AND ORDER

Pending is Petitioner Mohammed A. Saleh’s Petition for a Writ of Habeas Corpus

pursuant to 28 U.S.C. § 2241. [Doc. 1].

I.

On January 17, 1996, following a nine-month jury trial in the United States District

Court for the Southern District of New York, Mr. Saleh was convicted on one count each of

seditious conspiracy, in violation of 18 U.S.C. § 2384 (Count One), bombing conspiracy, in

violation of 18 U.S.C. § 371 (Count Five), and attempted bombing, in violation of 18 U.S.C.

§ 844(i) (Count Six). [Doc. 8 at 1–2 (citing United States v. Rahman, 189 F.3d 88 (2d Cir. 1999))].

At sentencing, the district court applied the November 1, 1992, edition of the

then-mandatory United States Sentencing Guidelines (“U.S.S.G.”) in effect at the time of the crime

inasmuch as it was “more advantageous to the defendants than the version in effect at the time of

sentencing.” Rahman, 189 F.3d at 145. Since the Guidelines did not specify a base offense level

for the seditious conspiracy offense, the district court relied on U.S.S.G. § 2X5.1, which provided

“that if the offense is a felony for which no guideline has been issued, the sentencing judge is to

apply ‘the most analogous offense guideline,’ so long as one is ‘sufficiently analogous.’” Id. at

146. The district court therefore applied the treason guideline -- U.S.S.G. § 2M1 -- as the “most

appropriate analogy” based on the jury’s finding that “one of the goals of the seditious conspiracy

had been ‘to wage a war of urban terrorism against the United States.’” Id. After applying a

downward variance for uncompleted conspiracy and an upward enhancement for obstruction of

justice, the court utilized the Guidelines’ “grouping” rules to determine an appropriate “combined

offense level” of 42. Id. at 146–47 (citing 18 U.S.S.G. § 3D1.4). It next considered any potential

limitations that the statutory maximums for the counts of Mr. Saleh’s conviction would impose on

the court’s authority to stack sentences to reach the total punishment called for by the Guidelines.

Id. at 147. Ultimately, Mr. Saleh was sentenced to 35 years of incarceration, the statutory

maximum. Id. at 149.

Mr. Saleh appealed his conviction to the United States Court of Appeals for the

Second Circuit, challenging the district court’s use of the treason guideline, imposition of

consecutive sentencing, and failure to grant a two-level minor role reduction under U.S.S.G.

§ 3B1.2(b) as erroneous. Id. at 150–60. After careful consideration of each claim raised on appeal,

the Second Circuit concluded that they were “without merit” and affirmed Mr. Saleh’s conviction.

Id. On January 9, 2001, Mr. Saleh filed a motion in his sentencing court to vacate, set aside, or

correct his sentence under 28 U.S.C. § 2255. Elgabrowny v. United States, Nos. 1:93-cr-181/1:01-

cv-169, 2003 WL 22416167 (S.D.N.Y. Oct. 22, 2003). The district court denied and dismissed the

motion after determining that the case upon which Mr. Saleh relied -- Apprendi v. New Jersey --

could not be applied retroactively and was therefore inapplicable. Elgabrowny, 2003 WL

22416167, at *1 (citing Apprendi v. New Jersey, 530 U.S. 466 (2000)). Every subsequent attempt

by Mr. Saleh to obtain relief from the sentencing court likewise failed. [Doc. 8 at 8–10].

Mr. Saleh filed the instant § 2241 petition on March 25, 2021. [Doc. 1]. He requests

relief on four grounds: (1) that the sentencing court’s use of the treason guideline to determine his

base level offense and the application of consecutive statutory maximum sentences pursuant to

U.S.S.G. § 5G1.2 were improper; (2) that he was improperly denied a minor role sentence

reduction; (3) that seditious conspiracy is a vague, nonviolent crime; and (4) that his conditions of

confinement constitute extraordinary circumstances warranting compassionate release due to the

COVID-19 pandemic. [Id.].

This action was previously referred to the Honorable Dwane L. Tinsley, United

States Magistrate Judge, for submission of proposed findings and a recommendation (“PF&R”).

Magistrate Judge Tinsley filed his PF&R on February 18, 2022. [Doc. 8]. Magistrate Judge Tinsley

characterizes most of Mr. Saleh’s claims as challenges to the legality of his detention rather than

the conditions of confinement and states that Mr. Saleh has failed to demonstrate that § 2255 would

be inadequate or ineffective to test that legality. [Id. at 11]. He concludes that the Petition must,

therefore, “either be dismissed or construed as a section 2255 motion.” [Id. at 19–20 (quoting Pack

v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000))]. Based on the Second Circuit’s multiple denials of

§ 2255 relief in Mr. Saleh’s prior appeals, Magistrate Judge Tinsley further concludes that “it

would be futile to transfer consideration of [Mr. Saleh’s § 2255] claims to [the sentencing] court

because the petition would likely be an unauthorized second or successive § 2255 motion.” [Id. at

20].

Additionally, Magistrate Judge Tinsley indicates that Mr. Saleh’s request for

compassionate release would be “more appropriately addressed in the motion [then] pending in

his sentencing court under 18 U.S.C. § 3582(c)”1 than in the § 2241 motion pending in this Court.

[Id.]. He states that “[c]ourts in this circuit and elsewhere have consistently found that a § 2241

petition is not the appropriate mechanism by which to raise a request for compassionate release,

which must instead be brought under 18 U.S.C. § 3582 in the court that issued the inmate’s

sentence.” [Id. at 18]. Because the sentencing court is elsewhere and a § 3582 motion was there

pending at the time the Petition was filed, Magistrate Judge Tinsley recommends that Mr. Saleh’s

request for compassionate release be dismissed without prejudice.

For the foregoing reasons, Magistrate Judge Tinsley proposes that the Court find

(1) that Mr. Saleh has not “demonstrated that § 2255 is inadequate or ineffective to test the legality

of his detention, and thus, his sentencing challenges . . . are not proper for consideration under 28

U.S.C. § 2241”; and (2) that the Court lacks jurisdiction to consider any of Mr. Saleh’s claims

under § 2241. [Id. at 19–20]. He recommends dismissal. [Id.].

On March 7, 2022, Mr. Saleh filed objections to the PF&R, in which he contends

that this Court has jurisdiction and provides additional supporting rationales for his sentencing

challenges. [Doc. 10]. On April 7, 2022, Mr. Saleh filed a Motion to Set Aside and Vacate, arguing

that he never consented to the submission of the PF&R from Magistrate Judge Tinsley and that the

PF&R should therefore be vacated under Fed. R. Civ. P. “60(b)(4)(6)” (sic). [Doc. 11].

1 This motion was denied by the sentencing court on July 8, 2020. See United States

v. Saleh, No. 93-cr-181, 2020 WL 3839626 (S.D.N.Y. July 8, 2020). In its opinion, that court held

that despite Mr. Saleh’s arguments regarding the COVID-19 pandemic, his health concerns,

changes in the sentencing law, and his “extensive rehabilitation,” he had failed to plead sufficient

“extraordinary and compelling reasons” to warrant either a reduction in his sentence or his release

from confinement under 18 U.S.C. § 3582(c)(1). Id. at *4–11. Mr. Saleh appealed this decision,

and on May 27, 2022, the Second Circuit affirmed the lower court’s denial of Mr. Saleh’s motion

for sentence reduction. United States v. Elgabrowny, No. 20-2254, 2022 WL 1701515 (2d Cir.

2022) (unpublished).

II.

Whether an inmate may challenge his sentence under § 2241 is a question of law

that the Court reviews de novo. Lester v. Flournoy, 99 F.3d 708, 710 (4th Cir. 2018). The Court is

also required “to make a de novo determination of those portions of the [PF&R] or specified

findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). The Court need

not 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 (1985); see also 28 U.S.C. § 636(b)(1) (“A judge of the court

shall make a de novo determination of those portions of the report or specified proposed findings

or recommendations to which objection is made.” (emphasis added)). Failure to file timely

objection constitutes a waiver of de novo review and the Petitioner’s right to appeal the Court’s

order. See 28 U.S.C. § 636(b)(1); see also United States v. De Leon-Ramirez, 925 F.3d 177, 181

(4th Cir. 2019) (parties may not typically “appeal a magistrate judge’s findings that were not

objected to below, as § 636(b) doesn’t require de novo review absent objection.”); Snyder v.

Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989).

III.

Mr. Saleh filed a total of eight objections to Magistrate Judge Tinsley’s PF&R as

outlined below. Objections 1 through 7 challenge the legality of Mr. Saleh’s sentencing. Objection

Eight relates to his conditions of confinement.

A. Objection One

Mr. Saleh objects to Magistrate Judge Tinsley taking judicial notice of the

procedural history and facts from the opinions of the sentencing court and Second Circuit. [Doc.

10 ¶ 1]. Specifically, he claims that Magistrate Judge Tinsley ignored statements in the record from

the co-conspirators that would call into question Mr. Saleh’s knowledge of the underlying

conspiracy. [Id.].

B. Objection Two

Mr. Saleh further objects to Magistrate Judge Tinsley’s conclusion that this Court

lacks jurisdiction to consider Mr. Saleh’s claims under § 2241. [Doc. 10 ¶ 2]. He contends that he

“should be heard on the merits where his misclassification for first time offender put him in status

as career offender.” [Id.]. He also asserts, without further explanation, that “this Court does have

jurisdiction to [consider] [his] claims under § 2241.” [Id.].

C. Objection Three

Mr. Saleh further objects to the sentencing court’s use of U.S.S.G. § 5G1.2(d) “to

justify the mandatory application of [an erroneous] sentence.” [Doc. 10 ¶ 3]. He cites the Fourth

Circuit’s unpublished opinion in United States v. Hammoud, 483 F. App’x 865 (4th Cir. 2012),

upholding a post-Booker sentence reduction, to seemingly argue that his sentence was erroneous.

[Id. (citing United States v. Booker, 543 U.S. 220 (2005))].

D. Objection Four

Mr. Saleh further objects to Magistrate Judge Tinsley’s contention that a

proceeding under 28 U.S.C. § 2255 is the proper vehicle for Mr. Saleh’s sentencing challenges.

[Doc. 10 ¶ 4]. Mr. Saleh argues that § 2255 is “inadequate and ineffective” to test the legality of

his detention, and therefore, his § 2241 petition is proper. [Id. (citing Lester v. Flournoy, 909 F.3d

708 (4th Cir. 2018))].

E. Objection Five

Mr. Saleh further objects to the sentencing court’s application of the “uncharged

treason Guidelines” and U.S.S.G. § 5G1.2(d), arguing that the District Court was “wrong” in

applying these Guidelines. [Doc. 10 ¶ 5]. He first quotes the Fourth Circuit’s description of

incorrect sentencing benchmarks in Lester as “fundamentally problematic.” [Id. (citing Lester, 909

F.3d at 713) (mistakenly cited as United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018))]. Mr.

Saleh then cites Wheeler to argue that the sentencing court’s application of these Guidelines

constituted a fundamental defect that disregarded his right to liberty and was “a denial of due

process of law.” [Id. (citing Wheeler, 886 F.3d at 432, 433)]. He further argues that the savings

clause allows inmates “sentenced within erroneous Guidelines ranges pre-Booker to challenge

their sentences under § 2241.” [Id.].

F. Objection Six

Mr. Saleh further objects to the “vagueness [of] the sedition conspiracy [charge],”

and argues that he raised the issue on appeal but was “wrongly” denied relief. [Doc. 10 ¶ 6]. He

cites the rule outlined in Manning v. Caldwell -- “[t]o survive a vagueness challenge, a statute must

give a person of ordinary intelligence adequate notice of what conduct is prohibited and must

include sufficient standards to prevent arbitrary and discriminatory enforcement.” 930 F.3d 264,

272 (4th Cir. 2019).

G. Objection Seven

Mr. Saleh further objects to the sentencing court’s refusal to apply the minor role

adjustment, stating that the “same argument should be said” regarding this objection as in

Objection 6. [Doc. 10 ¶ 7]. In full, this objection states as follows: “Same argument should be said

about denying the minor role adjustment in which the sentencing commission in Amend. 794 use

petitioner to show the rejection for the 2nd Circuit approach of this issue which was explain (sic)

in detail in petitioner brief.” [Id.].

H. Objection Eight

Finally, Mr. Saleh objects to the conditions of his confinement, arguing that

§ 3583(e)(2) allows district courts to “eliminate illegal condition[s] at any time.” [Doc. 10 ¶ 8].

IV.

“Federal prisoners generally must use the remedy-by-motion mechanism provided

in 28 U.S.C. § 2255 to challenge their convictions or sentences.” Marlowe v. Warden, Fed. Corr.

Inst. Hazelton, 6 F.4th 562, 568 (4th Cir. 2021) (citing Farkas v. Warden, FCI Butner II, 972 F.3d

548, 554 (4th Cir. 2020); In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997)). Motions under § 2255

must typically be heard by the federal inmate’s sentencing court, which in this case is the United

States District Court for the Southern District of New York. However, “because § 2255 was

‘intended to afford federal prisoners a remedy identical in scope to federal habeas corpus,’ rather

than to limit their rights to collaterally attack their convictions and sentences, Congress included a

so-called ‘savings clause’ in § 2255.” Jones v. Zych, 812 F. App’x 115, 116 (4th Cir. 2020)

(unpublished) (citing Davis v. United States, 417 U.S. 333, 343 (1974)). This clause provides that

[a]n 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 relief, by motion, to the court which

sentenced him, or that such 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).

While § 2241 provides a general grant of habeas corpus authority, the remedy under

§ 2241 is not an additional, alternative, or supplemental remedy to that prescribed by § 2255.

Rather, a federal inmate may only petition for habeas relief under § 2241 if he can establish that

§ 2255 is “inadequate or ineffective to test the legality of his detention.” Rice v. Rivera, 617 F.3d

802, 807 (4th Cir. 2010) (citation omitted); see also In re Jones, 226 F.3d 328, 333 (4th Cir. 2000)

(holding that “when § 2255 proves ‘inadequate or ineffective to test the legality of . . . detention,’

a federal prisoner may seek a writ of habeas corpus pursuant to § 2241”). The Fourth Circuit has

held, however, that “‘§ 2255 is not rendered inadequate or ineffective merely because an individual

has been unable to obtain relief under that provision’ . . . [i]n other words, a test is not ‘inadequate’

just because someone fails it.” Farkas, 972 F.3d at 555–56 (quoting In re Vial, 115 F.3d at 1194

n.5); Lester, 909 F.3d at 716. The Fourth Circuit has also “repeatedly acknowledged” that the

“savings clause” “must be interpreted ‘narrowly.’” Slusser v. Vereen, 36 F.4th 590, 594 (4th Cir.

2022); Farkas, 972 F.3d at 556 (stating that the “saving clause” should only be applied in “limited

circumstances” to “‘provide[ ] only the tightest alleyway’ to relief”).

Our Court of Appeals established a three-factor analysis -- known as “the Jones

test” -- to define the “limited circumstances” under which § 2255 will be deemed inadequate or

ineffective in challenges to criminal convictions. In re Jones, 226 F.3d at 333–34. This test

provides that a remedy under § 2255 is inadequate or ineffective when:

(1) at the time of conviction, settled law of 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 petitioner was convicted is deemed not to be criminal; and (3) the

prisoner cannot satisfy the gatekeeping provisions of § 2255 because the new rule

is not one of constitutional law.

Id.

The Jones test was modified in United States v. Wheeler, whereby the Fourth

Circuit extended the test to sentencing challenges that meet all the following criteria:

(1) at the time of sentencing, settled law of this circuit or the Supreme Court

established the legality of the sentencing; (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.

Wheeler, 886 F.3d 415, 429 (4th Cir. 2018).

The petitioner in a sentencing challenge bears the burden of establishing that a

§ 2255 motion is inadequate or ineffective by satisfying the Wheeler criteria and thus, the savings

clause requirements. See Hood v. United States, 13 F. App’x 72, 72 (4th Cir. 2001); Hayes v.

Ziegler, No. 5:11-cv-00261, 2014 WL 670850 (S.D. W. Va. Feb. 20, 2014), aff’d, 573 F. App’x

268 (4th Cir. 2014). Satisfaction of the savings clause requirements is jurisdictional. If the savings

clause does not apply, the Court is not authorized to adjudicate the petitioner’s claim. Wheeler,

886 F.3d at 425.

In analyzing the first prong of the Wheeler test, the Court must look to the

substantive law of the circuit where Mr. Saleh was sentenced. 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.”); Marlow v. Warden, Fed. Corr.

Inst. Hazelton, 6 F.4th 562, 572 (4th Cir. 2021); see also Chaney v. O’Brien, No. 07-112, 2007

WL 118641, at *3 (W.D. Va. Apr. 23, 2007) (noting that “applying the substantive law of the place

of confinement . . . would base the choice of law decision on the fortuitous placement of a prisoner

by the Bureau of Prisons, not the more rational factor of the place of conviction”). Mr. Saleh was

sentenced in the United States District Court for the Southern District of New York, a court within

the Second Circuit’s jurisdiction. The Court, therefore, must apply the substantive law from that

Circuit in its analysis of the remaining Wheeler factors for each of Mr. Saleh’s claims.

A. Objections Three, Four, and Five

The Court first turns to Mr. Saleh’s claim that it was improper for the sentencing

court to use the treason guideline to determine his base offense level in the absence of a specific

guideline governing seditious conspiracy and to impose consecutive maximum sentences pursuant

to U.S.S.G. § 5G1.2. These challenges were addressed in Mr. Saleh’s direct appeal, where the

Second Circuit concluded that the claims were “without merit” and denied relief. Rahman, 189

F.3d at 150–60. In this case, Mr. Saleh asserts that the sentencing court believed the application of

the treason guideline and consecutive maximum sentences was “mandatory in the pre-Booker era”

and that the Booker decision, applied retroactively, warrants a sentence reduction in his case. [Doc.

1 at 9 (citing Booker, 543 U.S. 220)].

Applying the substantive law of the Second Circuit, the Court must determine

whether “subsequent to the prisoner’s direct appeal and first § 2255 motion, the . . . settled

substantive law [of the Second Circuit or the Supreme Court] changed and was deemed to apply

retroactively on collateral review.” 28 U.S.C. § 2255(e). Since 2005, the Second Circuit has

consistently held that Booker is not substantively retroactive. See, e.g., Guzman v. United States,

404 F.3d 139, 140 (2d Cir. 2005) (holding that “Booker is not retroactive: it does not apply to cases

on collateral review where the defendant’s conviction was final as of January 12, 2005, the date

that Booker issued”); Cortorreal v. United States, 486 F.3d 742, 744 (2d Cir. 2007) (holding that

“Booker does not apply retroactively to cases . . . on collateral review”); Pena v. United States,

534 F.3d 92, 96 n.3 (2d Cir. 2008) (stating that “Booker does not apply retroactively to collateral

challenges to judgments that were final on the day that case was decided”); United States v. Vargas,

502 F. Supp. 3d 820, 826 (S.D.N.Y. Nov. 24, 2020) (“Unfortunately for [petitioner] and others in

his position, the Second Circuit determined that those who had previously received mandatory

Guideline sentences could not rely on Booker to retroactively challenge their sentences.” (citation

omitted)).

The Second Circuit is not alone in this regard. Other circuits agree with the Second

Circuit’s refusal to apply Booker retroactively. See Lloyd v. United States, 407 F.3d 608, 615–16

(3d Cir. 2005) (holding that “[b]ecause Booker announced a rule that is ‘new’ and ‘procedural,’

but not ‘watershed,’ Booker does not apply retroactively to initial motions under § 2255 where the

judgment was final as of January 12, 2005, the date Booker issued”); In re Elwood, 408 F.3d 211,

213 (5th Cir. 2005) (holding that “Booker does not apply retroactively on collateral review for

purposes of a successive § 2255 motion”); United States v. Hunter, 12 F.4th 555, 569 (6th Cir.

2021) (holding that the district court “abused its discretion when it relied on the non-retroactive

decision in Booker” in its analysis); McReynolds v. United States, 397 F.3d 479, 480 (7th Cir.

2005) (concluding that Booker does not apply retroactively to cases on collateral review); Never

Misses a Shot v. United States, 413 F.3d 781, 783 (8th Cir. 2005) (concluding that “the ‘new rule’

announced in Booker does not apply to criminal convictions that became final before the rule was

announced, and thus, does not benefit movants in collateral proceedings”); Bey v. United States,

399 F.3d 1266, 1269 (10th Cir. 2005) (holding that “Booker may not be applied retroactively to

second or successive habeas petitions”); United States v. Hicks, 911 F.3d 623, 628 (D.C. Cir. 2018)

(stating that “the Booker decision does not apply retroactively”).

Booker has not been determined by either the Supreme Court or the Second Circuit

to be substantively retroactive on collateral review. Because Mr. Saleh has pointed to no other

binding precedent that represents an intervening change sufficient to satisfy Wheeler’s second

prong, this claim cannot be brought under § 2241. Accordingly, the Court OVERRULES

Objections 3 through 5.

B. Objection Six

Next, the Court turns to Mr. Saleh’s claim that seditious conspiracy is a vague, non-

violent crime, and his apparent argument that as such, any conviction or sentence stemming from

that charge should be void. [Doc. 10 ¶ 6]. He bases this argument on the Supreme Court’s statement

in United States v. Davis that “a vague law is no law at all.” 139 S. Ct. 2319, 2323 (2019). He also

argues that the statute for seditious conspiracy does not “give a person of ordinary intelligence

adequate notice of what conduct is prohibited,” as is required in the Fourth Circuit. Manning v.

Caldwell, 930 F.3d 264, 272 (4th Cir. 2019). Finally, he cites a district court case in which he

contends the Eastern District of Virginia released an inmate after finding that seditious conspiracy

is not a crime of violence. See United States v. Khan, 330 F. Supp. 3d 1076 (E.D. Va. Aug. 1,

2018).

Applying the substantive law of the Second Circuit, the Court must determine

whether “subsequent to the prisoner’s direct appeal and first § 2255 motion, the . . . settled

substantive law [of the Second Circuit] changed [on this subject] and was deemed to apply

retroactively on collateral review.” 28 U.S.C. § 2255(e). The statute for seditious conspiracy states,

in pertinent part, as follows:

If two or more persons in any State or Territory . . . conspire to overthrow, put

down, or to destroy by force the Government of the United States, or to levy war

against them, or to oppose by force the authority thereof . . . they shall each be fined

under this title or imprisoned not more than twenty years, or both.

18 U.S.C. § 2384. Although Mr. Saleh did cite to a Supreme Court case on the issue of vagueness,

that case did not deal with this specific statute. As such, it has no bearing on this case. Further,

there have been no Second Circuit cases that deal with this particular statute beyond Mr. Saleh’s

direct appeal in Rahman.

Because Mr. Saleh has failed to point to any controlling precedent subsequent to

his direct appeal and first § 2255 motion that changed the law within the Second Circuit on this

particular issue, he has not satisfied the second prong to the Wheeler test for this claim. Thus, this

claim cannot be brought under the pending § 2241 motion in this Court. Accordingly, the Court

OVERRULES Objection Six.

C. Objection Seven

The Court next turns to Mr. Saleh’s argument that the sentencing court’s denial of

a minor role adjustment was improper under the Sentencing Guidelines. This challenge was also

brought on appeal by Mr. Saleh to the Second Circuit and was denied as “without merit.” Rahman,

189 F.3d at 159–60. Mr. Saleh then filed a second Rule 60(b) motion, which was also unsuccessful.

[Doc. 8 at 15]. He now petitions the Court under § 2241, relying on the United States Sentencing

Commission’s clarifying Amendment 794 and a Second Circuit case in which that amendment was

applied to grant a minor role adjustment to a criminal defendant -- United States v. Alston, 899

F.3d 135 (2d Cir. 2018) -- to argue that he should, likewise, be granted the adjustment.

In Mr. Saleh’s direct appeal to the Second Circuit on this issue, the court explained

the then-applicable minor role reduction guideline as follows:

The Guidelines provide for a four-level reduction in offense level for a defendant

who plays a “minimal role in concerted activity,” or a two-level reduction for a

“minor participant in criminal activity.” A reduction will not be available simply

because the defendant played a lesser role than his co-conspirators; to be eligible

for a reduction, the defendant’s conduct must be “minor” or “minimal” as compared

to the average participant in such a crime. See United States v. Amjal, 67 F.3d 12,

18 (2d. Cir. 1995).

Rahman, 189 F.3d at 159 (citations omitted).

Amendment 794 (the “Amendment”) to the Sentencing Guidelines became

effective on November 1, 2015, and “clarified that a role reduction [under U.S.S.G. § 3B1.2] is

appropriate if the defendant was ‘substantially less culpable than the average participant in the

criminal activity,’ and that the ‘average participant’ specifically refers to the defendant’s

‘co-participants in the case at hand.’” United States v. Tang Yuk, 885 F.3d 57, 95 n.16 (2d Cir.

2018). Mr. Saleh cites a Second Circuit case, United States v. Alston, in which the court accorded

the Amendment “controlling weight,” to argue that it should apply to his sentence. In that case,

the Second Circuit adopted the Amendment’s interpretation of “average participant” so that “in

the version of section 3B1.2 in effect after the adoption of Amendment 794 . . . the applicability

of a ‘minor role’ reduction depends on the nature of the defendant’s role in comparison to that of

his co-participants in his criminal activity.” United States v. Alston, 899 F.3d 135, 150 (2d Cir.

2018) (emphasis added). Although these cases apply the Amendment’s interpretation of “average

participant” to cases decided after 2015, neither addresses whether the Amendment can apply

retroactively to sentencings that occurred prior to its enactment, an issue that Mr. Saleh has not

addressed.

U.S.S.G. § 1B1.10 -- the guideline governing post-sentencing reductions based

upon retroactive Guideline amendments -- provides as follows:

In a case in which a defendant is serving a term of imprisonment, and the guideline

range applicable to that defendant has subsequently been lowered as a result of an

amendment to the Guidelines Manual listed in [§ 1B1.10(d)], the court may reduce

the defendant’s term of imprisonment as provided by 18 U.S.C. § 3582(c)(2).

U.S.S.G. § 1B1.10(a)(1). Section 1B1.10(d), as referenced, lists several amendments that are

retroactive under the policy, but it does not include Amendment 794. Therefore, the Court must,

again, turn to the substantive law of the Second Circuit on this issue.

Since Amendment 794’s passage, the Second Circuit has repeatedly held that the

Amendment does not apply retroactively for the purposes of sentencing challenges, a fact that the

sentencing court pointed out in its 2021 decision to deny Mr. Saleh’s then-pending Rule 60(b)

Motion. See United States v. Saleh, No. 93-cr-00181, 2021 WL 149082, at *7–8 (S.D.N.Y. July

15, 2021) (holding that “Amendment 794 is not retroactive”) (citing Tang Yuk, 885 F.3d at 95 n.16

(stating that “Amendment 794 . . . has not been given retroactive application, U.S.S.G.

§ 1B1.10(d)”)); see also United States v. King, 813 F. App’x 690, 693 (2d Cir. 2020) (unpublished)

(“[T]o be eligible for [the modification of a term of imprisonment under § 3582(c)(2)], the

amendment upon which [an inmate] relies must be listed as retroactive in § 1B1.10(d).

Amendment 794 is not. Thus, it cannot provide a basis for § 3582(c)(2) relief.”). Because Mr.

Saleh has pointed to no other binding precedent that represents an intervening change sufficient to

satisfy Wheeler’s second prong, this claim cannot be brought under § 2241. Accordingly, the Court

OVERRULES Objection Seven.

D. Objection Two

As discussed above, satisfaction of the savings clause and Wheeler requirements

are jurisdictional. Wheeler, 886 F.3d at 423. Therefore, Mr. Saleh’s failure to meet the second

prong of Wheeler for his sentencing challenges is dispositive in this case. Ham v. Breckon, 994

F.3d 682 (affirming the district court’s dismissal of petitioner’s § 2241 habeas petition for lack of

jurisdiction based on a failure to satisfy prong two of the Wheeler test). The proper vehicle for

relief for Mr. Saleh’s challenges to the legality of his sentences is a motion under 28 U.S.C. § 2255.

This statute provides that an inmate “may move the court which imposed the sentence to vacate,

set aside, or correct the sentence[s].” 28 U.S.C. § 2255(a) (emphasis added). Because this Court is

not the sentencing court in Mr. Saleh’s underlying criminal case, Mr. Saleh’s sentencing

challenges are not proper for consideration under the pending § 2241 petition for lack of

jurisdiction.2

Notwithstanding Mr. Saleh’s failure to satisfy the Wheeler criteria for each of the

above-referenced claims, § 1B1.10(b)(2)(C) precludes the Court from reducing Mr. Saleh’s

sentence because it would result in a reduced term of imprisonment that is less than the term of

2 Because the Court has determined that there is a lack of jurisdiction over the

sentencing challenges, Mr. Saleh’s jurisdictional objection (Objection 2) is OVERRULED.

imprisonment Mr. Saleh has already served. Section 1B1.10(b)(2)(C) provides that “[i]n no event

may the reduced term of imprisonment be less than the term of imprisonment the defendant has

already served.” U.S.S.G. § 1B1.10(b)(2)(C). Mr. Saleh’s projected release date from

imprisonment is September 3, 2023, according to the Federal Bureau of Prisons, meaning he has

currently served well over the maximum guideline range that would be applicable if such a

reduction were granted. The Court, therefore, OVERRULES Objection Two.

E. Objection One

The Court next turns to Mr. Saleh’s objection to Magistrate Judge Tinsley taking

judicial notice of certain facts and the procedural history from Mr. Saleh’s prior cases in the Second

Circuit. [Doc. 8 at 2 n.2 (“Much of the procedural history herein is derived from [the] opinion of

. . . the Second Circuit . . . affirming the judgment of the district court on direct appeal, as well as

subsequent opinions of the sentencing court and the Second Circuit concerning Petitioner’s

post-conviction filings.”)]. Mr. Saleh argues that other facts and statements in the record were

improperly ignored by Magistrate Judge Tinsley. [Doc. 10 ¶ 1].

Fed. R. Evid. 201 provides that a court “may judicially notice a fact that is not

subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial

jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot

reasonably be questioned.” Fed. R. Evid. 201(b); see Nolte v. Capital One Fin. Corp., 390 F.3d

311, 317 n.* (4th Cir. 2004) (stating that “[o]nly indisputable facts are susceptible to judicial

notice”). The Fourth Circuit has held that “a court may properly take judicial notice of ‘matters of

public record’ and other information that, under Federal Rule of Evidence 201, constitute

‘adjudicative facts.’” Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 508–09 (4th Cir.

2015). However, “‘[f]acts adjudicated in a prior case,’ or . . . a prior trial in the same case, ‘do not

meet either test of indisputability contained in Rule 201(b).’” United States v. Awni Shauaib

Zayyad, 741 F.3d 452, 464 (4th Cir. 2021) (quoting Int’l Star Class Yacht Racing Ass’n v. Tommy

Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998)). Ultimately, “whether information is the

proper subject of judicial notice depends on the use to which it is put.” Clatterbuck v. City of

Charlottesville, 708 F.3d 549, 558 (4th Cir. 2013) (citing United States v. Bello, 194 F.3d 18, 22

(1st Cir. 1999)).

The magistrate judge took judicial notice of these facts purely to give a factual and

procedural overview of Mr. Saleh’s case in the Second Circuit. See Liberty Mutual Ins. Co. v.

Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992) (holding that “[a] court may take

judicial notice of a document filed in another court ‘not for the truth of the matters asserted in the

other litigation, but rather to establish the fact of such litigation and related filings’”). Mr. Saleh

does not dispute the accuracy of what the magistrate judge cited, but rather argues that, by doing

so, the magistrate judge ignored other relevant facts alleged by Mr. Saleh. However, those

additional facts -- when taken as true -- have no bearing on the outcome of the case. Accordingly,

the Court OVERRULES Objection One.

F. Objection Eight

Mr. Saleh’s final objection is to the conditions of his confinement. In his Petition,

Mr. Saleh argues that the COVID-19 pandemic and his poor health qualify him for compassionate

release. Before analyzing the merits of his claim, the Court must determine whether a petition

under § 2241 is the proper mechanism by which Mr. Saleh should seek such relief.

The Court agrees with Magistrate Judge Tinsley that precedent clearly establishes

that the more appropriate vehicle for relief was Mr. Saleh’s then-pending § 3582 motion in his

sentencing court. See Shephard v. Adams, No. 5:20-CV-183, 2020 WL 5222384, at *1 (N.D. W.

Va. Sept. 1, 2020); Robinson v. Wilson, No. 1:17-cv-02630, 2017 WL 5586981, at *5 (S.D. W.

Va. Sept. 26, 2017), report and recommendation adopted, 2017 WL 5586272 (S.D. W. Va. Nov.

20, 2017) (“Like a § 2255 motion, a § 3582 motion must be filed in the movant’s underlying

criminal action and be addressed by the sentencing court.”); see also Braswell v. Gallegos, 82 F.

App’x 633, 635 & n.2 (10th Cir. 2003) (“Because a motion filed under § 3582 requests

modification of a sentence, it follows that such a motion must be filed in the district court which

imposed the sentence.”); Deffenbaugh v. Sullivan, No. 5:19-HC-2049-FL, 2019 WL 1779573, at

*2 (E.D.N.C. Apr. 23, 2019) (“If petitioner now seeks to file his own motion for compassionate

release, such a motion must be filed in the sentencing court.”); Allah v. Fed. Bureau of Prisons

Dir., No. CV 9:16-2665-BHH-BM, 2016 WL 5868093, at *4 (D.S.C. Sept. 12, 2016), report and

recommendation adopted, 2016 WL 5851936 (D.S.C. Oct. 6, 2016) (same) (collecting cases).

However, the Court is cognizant of the sentencing court’s denial of Mr. Saleh’s motion on this

matter, and as such, will examine the merits of Mr. Saleh’s request despite its agreement with

Magistrate Judge Tinsley’s recommendation. See United States v. Saleh, No. 93-cr-181, 2020 WL

3839626 (S.D.N.Y. July 8, 2020) (aff’d).

The First Step Act (the “Act”) amended 18 U.S.C. § 3582(c)(1)(A) in order to

expand access to compassionate release to incarcerated individuals. Prior to enactment, a court

could only consider compassionate release on motion by the Bureau of Prisons (“BOP”). The Act

“removed the BOP from that gatekeeping role, authorizing defendants themselves to file motions

for sentence reductions.” United States v. McCoy, 981 F.3d 271, 271 (4th Cir. 2020). Before filing

a motion under 18 U.S.C. § 3582(c)(1)(A), the defendant must first exhaust the administrative

process established by the BOP or allow “the lapse of 30 days from the receipt of such a request

by the warden of the defendant’s facility, whichever is earlier.” 18 U.S.C. § 3582(c)(1)(A).

To grant an inmate’s motion for compassionate release or sentence reduction under

18 U.S.C. § 3582(c)(1)(A)(i), the court must (1) find that extraordinary and compelling reasons

warrant a sentence reduction, and (2) consider the relevant sentencing factors set forth in 18 U.S.C.

§ 3553(a). Id. § 3582(c)(1)(A). When analyzing “extraordinary and compelling” reasons, “[t]he

district court enjoy[s] broad discretion in conducting [its] analysis.” United States v. Kibble, 992

F.3d 326, 330 (4th Cir. 2021). Our Court of Appeals permits district courts to take a more

individualized approach regarding whether “extraordinary and compelling” reasons are

established. McCoy, 981 F.3d at 286. As of the date of this Order, the United States Sentencing

Commission has not yet amended U.S.S.G. § 1B1.13 to address motions filed by defendants. See

United States v. Vaughn, No. 5:08-00266, 2021 WL 136172, at *2 (S.D. W. Va. Jan. 13, 2021)

(quoting McCoy, 981 F.3d at 282–83).

In determining whether extraordinary and compelling reasons for a sentence

reduction exist in light of COVID-19, district courts have considered the age of the inmate, the

documented history and severity of the inmate’s health conditions, and the proliferation and status

of infections in the prison facility. United States v. Brady, No. S2 18 Cr. 316, 2020 WL 2512100,

at *3 (S.D.N.Y. May 15, 2020) (collecting cases). Courts give particular attention to the presence

of comorbidities that the Centers for Disease Control and Prevention identifies as increasing the

risk of serious illness from COVID-19. United States v. Rodriguez, 451 F. Supp. 3d 392, 401 (E.D.

Pa. 2020) (finding an “extraordinary and compelling reason” for compassionate release based on

the inmate’s diabetes, high blood pressure, and liver abnormalities, as well as the outbreak at FCI

Elkton and the short period remaining on his sentence); United States v. Zukerman, 451 F. Supp.

3d 329, 335 (S.D.N.Y. Apr. 3, 2020) (granting compassionate release due to defendant’s diabetes

and age in light of the COVID-19 outbreak); United States v. Colvin, 451 F. Supp. 3d 237, 241 (D.

Conn. Apr. 2, 2020) (granting compassionate release based on defendant’s diabetes, paired with

the COVID-19 outbreak).3

If an inmate demonstrates extraordinary and compelling reasons for release, the

court must then consider the § 3553(a) sentencing factors in deciding whether to exercise its

discretion to reduce the inmate’s sentence. 18 U.S.C. § 3582(c)(1)(A); United States v. High, 997

F.3d 181, 187 (4th Cir. 2021). These factors include “the nature and circumstances of the offense”;

“the history and characteristics of the defendant”; and the need for the sentence to “provide just

punishment,” “afford adequate deterrence,” “protect the public from further crimes of the

defendant,” and “provide the defendant with . . . training, medical care, or other correctional

treatment.” 18 U.S.C. § 3553(a); see High, 997 F.3d at 187.

Upon careful review under 18 U.S.C. § 3582(c)(1)(A), and the factors set forth in

18 U.S.C. § 3553(a), this Court concludes Mr. Saleh has not shown that either compassionate

release or a sentence reduction is warranted.

Mr. Saleh’s primary assertion concerns his potential risk of contracting COVID-19

at FCI Beckley. Mr. Saleh contends his age and personal health history puts him at risk of serious

complications from COVID-19. Mr. Saleh states that he was, at the time of his Petition, “almost

66 years old” and suffered from pre-diabetes, obesity, high cholesterol, and “other medical

conditions.” [Doc. 1 at 11]. Some of these conditions put him at a higher risk of serious illness if

he contracts COVID-19. People with Certain Medical Conditions, Ctrs. for Disease Control &

Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-

3 Each of the cited cases was decided early in COVID-19’s spread throughout the

United States and before vaccinations were available to inmates. See Rodriguez, 451 F. Supp. 3d

at 393 (considering the lack of an “approved cure, treatment, or vaccine to prevent [COVID-19]”

in its analysis); Zukerman, 451 F. Supp. 3d at 333 (citing the defendant’s “unique circumstances

and the exigency of a rapidly advancing pandemic” as factors favoring release).

medical-conditions.html (last updated May 2, 2022).

The conditions at FCI Beckley, however, are not currently dire. While the Facility

is currently operating at a Level 2 modification, as of December 18, 2022, there is only one

confirmed case of COVID-19 among inmates at FCI Beckley. Covid-19, Fed. Bureau of Prisons,

https://www.bop.gov/coronavirus/index.jsp (last visited Dec. 18, 2022). While Mr. Saleh’s health

conditions are of concern to the Court, given the lack of serious infection at the Facility and the

wide availability of vaccinations, the Court finds that Mr. Saleh has not demonstrated that

extraordinary and compelling reasons for his release exist on this basis alone.

Further, the applicable 18 U.S.C. § 3553(a) factors caution against Mr. Saleh’s

release. The subject offenses were undeniably serious. Mr. Saleh was involved in conduct that the

Second Circuit has characterized as “tantamount to waging war.” Rahman, 189 F.3d at 154.

Specifically, he “had ‘joined a terrorist conspiracy whose objective was the indiscriminate killing

of Americans in the name of jihad,’ and aided that conspiracy by ‘provid[ing] [diesel] fuel to his

co-conspirators as part of a terrorism plot to bomb bridges and tunnels in New York City.’”

Elgabrowny, 2022 WL 1701515, at *2–3.

For the foregoing reasons, the Court DENIES Defendant Mohammed Saleh’s

request for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) and, accordingly,

OVERRULES Mr. Saleh’s final objection.

V.

On April 7, 2022, Mr. Saleh filed a Motion to Set Aside & Vacate the PF&R. [Doc.

11]. In it, Mr. Saleh objects to the assignment of Magistrate Judge Tinsley in his case, claiming

that he previously notified the Court “[o]n or around April 16, 2021” that he “refus[ed] to be heard

by U.S. [Magistrate] Judge.” [Id. ¶ 1]. There is no evidence on the record of this notification. Mr.

Saleh further states that he “never consented to that according [to] 28 U.S.C. [§] 636(c).” [Id. ¶ 2].

Finally, Mr. Saleh contends that under Federal Rule of Civil Procedure 60(b)(4)-(6), the PF&R

should be void and “the case should be heard by District Judge.” [Id. ¶ 3].

28 U.S.C. § 636(c) -- the statute upon which Mr. Saleh relies in arguing that he did

not consent to Magistrate Judge Tinsley’s preparation of a PF&R in this case -- provides, in

pertinent part, that “[u]pon the consent of the parties, a full-time United States [magistrate judge]

. . . may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of

judgment in the case, when specially designated to exercise such jurisdiction by the district court

. . . he serves.” 28 U.S.C. § 636(c)(1). This case, however, does not fall within these parameters.

Magistrate Judge Tinsley was not designated to order the entry of judgment in this case. Rather,

he was designated to “submit to a judge of the court proposed findings of fact and

recommendations for the disposition, by a judge of the court . . . of [Mr. Saleh’s] applications for

[post-trial] relief . . . and [Mr. Saleh’s] petition[] challenging conditions of confinement.” Id.

§ 636(b)(1)(B). This designation was made pursuant to a Standing Order applicable to all cases

filed on or after January 1, 2016. [Doc. 2]. Mr. Saleh’s consent to this designation is not required.

With respect to Mr. Saleh’s contention that the PF&R is void under Federal Rule

of Civil Procedure 60 -- that Rule reads, in pertinent part, as follows:

On motion and just terms, the court may relieve a party or its legal representative

from a final judgment, order, or proceeding for the following reasons: . . . (4) the

judgment is void; (5) the judgment has been satisfied, released, or discharged; it is

based on an earlier judgment that has been reversed or vacated; or applying it

prospectively is no longer equitable; or (6) any other reason that justifies relief.

Fed. R. Civ. P. 60(a)(4)-(6) (emphasis added). The PF&R submitted by Magistrate Judge Tinsley

is “neither a final order nor an appealable interlocutory or collateral order” to which this Rule

could apply. Miller v. Patel, 740 F. App’x 383, 384 (4th Cir. 2018) (unpublished) (per curiam).

Therefore, this Rule does not apply. Accordingly, the Court DENIES Mr. Saleh’s Motion to Set

Aside and Vacate.

VI.

For the reasons discussed above, the Court OVERRULES the Objections [Doc.

10], ADOPTS the PF&R [Doc. 8], DENIES Mr. Saleh’s Motion to Set Aside and Vacate [Doc.

11], and DISMISSES Mr. Saleh’s Petition. [Doc. 1].

The Clerk is directed to transmit a copy of this written opinion and order to counsel

of record and any unrepresented party.

ENTER: December 20, 2022

Feod WV

Se my Frank W. Volk

“cas jj United States District Judge

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