Brown v. Maruka

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT BLUEFIELD

SIDNEY BROWN,

Plaintiff,

v. CIVIL ACTION NO. 1:19-00762

C. MARUKA, Warden,

Defendant.

MEMORANDUM OPINION AND ORDER

By Standing Order, this action was referred to United

States Magistrate Judge Omar J. Aboulhosn for submission of

findings and recommendations regarding disposition pursuant to 28

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

the court his Findings and Recommendation on September 13, 2022,

in which he recommended that the district court dismiss

plaintiff’s petition under 28 U.S.C. § 2241, and remove this

matter from the court’s docket.

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

the parties were allotted fourteen days, plus three mailing days,

in which to file any objections to Magistrate Judge Aboulhosn’s

Findings and Recommendation. The failure of any party to file

such objections 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). Moreover, this court need not conduct a de novo

review when a plaintiff “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).

Brown filed objections to the PF&R. See ECF No. 23.

With respect to those objections, the court has conducted a de

novo review.

On January 11, 2012, a jury in the Western District of

Michigan found Brown guilty of possession with intent to

distribute 28 grams or more of cocaine base, in violation of 21

U.S.C. § 841(a)(1); possession of a firearm in furtherance of a

drug trafficking crime, in violation of 18 U.S.C. §

924(c)(1)(A)(I); and being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g). The district court sentenced

Brown to 210 months of imprisonment, consisting of a sentence of

150 months on Count One, 60 months on Count Two, and 120 months

on Count Three, Counts One and Three to run concurrently and

Count Two to run consecutively. The United States Court of

Appeals for the Sixth Circuit affirmed Brown’s conviction and

sentence on June 27, 2013. The United States Supreme Court

denied Brown’s petition for writ of certiorari on November 4,

2013.

Brown objects to the PF&R’s ultimate conclusion that his

claims are not cognizable in § 2241. As Magistrate Judge

Aboulhosn correctly noted, Brown challenges the validity of his

conviction and sentence and, therefore, in view of the nature of

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his claims, his application must be considered to be a Motion to

Vacate, Set Aside or Correct his sentence under § 2255. Motions

under 28 U.S.C. § 2255 are the exclusive remedy for testing the

validity of federal judgments and sentences unless there is a

showing that the remedy is inadequate or ineffective. See Hahn

v. Moseley, 931 F.3d 295, 300 (4th Cir. 2019) (“Generally,

defendants who are convicted in federal court must pursue habeas

relief from their convictions and sentences through the

procedures set out in 28 U.S.C. § 2255.”); see also Marlowe v.

Warden, FCI Hazelton, 6 F.4th 562, 568 (4th Cir. 2021) (“Federal

prisoners generally must use the remedy-by-motion mechanism

provided in 28 U.S.C. § 2255 to challenge their convictions or

sentences.”); Farkas v. FCI Butner, 972 F.3d 548, 550 (4th Cir.

2020) (“Congress requires every federal prisoner who collaterally

attacks his conviction to employ the motion mechanism provided in

28 U.S.C. § 2255"). “That statute ‘affords every federal

prisoner the opportunity to launch at least one collateral attack

to any aspect of his conviction or sentence.’” Slusser v.

Vereen, 36 F.4th 590, 594 (4th Cir. 2022) (quoting Marlowe, 6

F.4th at 568). “For most, that is the end of the road.” Id.

“Nonetheless, § 2255 includes a ‘savings clause’ that

preserves the availability of § 2241 relief when § 2255 proves

`inadequate or ineffective to test the legality of a [prisoner’s]

detention.’” Hahn, 931 F.3d at 300 (quoting 28 U.S.C. §

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2255(e)); see also In re Jones, 226 F.3d 328, 333 (4th Cir. 2000)

(“[W]hen § 2255 proves `inadequate or ineffective to test the

legality of . . . detention,’ a federal prisoner may seek a writ

of habeas corpus pursuant to § 2241.”). “In determining whether

to grant habeas relief under the savings clause, [a court should]

consider (1) whether the conviction was proper under the settled

law of this circuit or Supreme Court at the time; (2) if the law

of conviction changed after the prisoner’s direct appeal and

first § 2255 motion; and (3) if the prisoner cannot meet the

traditional § 2255 standard because the change is not one of

constitutional law.” Hahn, 931 F.3d at 300-01 (citing In re

Jones, 226 F.3d at 333-34).

The United States Court of Appeals for the Fourth Circuit

has also held that a person in federal custody may, under certain

circumstances, use the savings clause under § 2255 to challenge

his sentence. See United States v. Wheeler, 886 F.3d 415, 428

(2018). In Wheeler, the Fourth Circuit held that § 2255 is

inadequate or 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

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an error sufficiently grave to be deemed a

fundamental defect.

Id. at 429 (citing In re Jones, 226 F.3d 328, 333–34 (4th Cir.

2000)).

The plaintiff bears the burden of showing the inadequacy

or ineffectiveness of a § 2255 motion. See Marlowe, 6 F.4th at

568. The fact that relief under § 2255 is barred procedurally or

by the gatekeeping requirements of § 2255 does not render the

remedy of § 2255 inadequate or ineffective. See In re Jones, 226

F.3d at 332-33; Young v. Conley, 128 F. Supp.2d 354, 357 (S.D.W.

Va. 2001). Of the “limited circumstances: that would “justify

resort to § 2241[,]” the United States Court of Appeals for the

Fourth Circuit has noted:

[W]e think it is beyond question that Ҥ 2255 is

not rendered inadequate or ineffective merely

because an individual has been unable to obtain

relief under that provision, . . . or because an

individual is procedurally barred from filing a §

2255 motion.” In re Vial, 115 F.3d at 1194 n.5

(internal citations omitted); Lester [v.

Flournoy], 909 F.3d at 716. In other words, a

test is not “inadequate” just because someone

fails it.

Second, the “savings clause” is structured as

an exception to AEDPA’s comprehensive limitations

on the scope of habeas review. Thus, to prevent

the exception from swallowing the rule, we have

interpreted the “savings clause” narrowly,

reasoning that it must encompass only “limited

circumstances.” In re Jones, 226 F.3d at 333. “A

contrary rule,” we have explained “would

effectively nullify” § 2255's specific

limitations.” Id.

Farkas, 972 F.3d at 556.

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Brown cannot show that he is entitled to use the savings

clause under § 2241 because his claims could and should have been

raised in his first § 2255 motion. With respect to Brown’s

reliance on Alleyne v. United States, 570 U.S. 99 (2013), and

Burrage v. United States, 571 U.S. 204 (2014), Magistrate Judge

Aboulhosn concluded that plaintiff could not satisfy the second

prong of either the Jones or Wheeler test because he “has not

established any substantive change in settled law occurring after

the time period for filing a timely Section 2255 Motion that

decriminalized the conduct of his conviction or invalidated the

legality of his sentence.” ECF No. 22 at 13. As the PF&R noted,

Brown raised the Alleyne case in his first § 2255 motion and the

district court analyzed the case in the context of Brown’s

motion. And our appeals court has made clear that

[n]either the text of Section 2255(e) nor this

Court’s precedent permits resort to Section 2241

for a disappointed federal prisoner who seeks to

relitigate his previous Section 2255 motion.

[Brown] had the opportunity to test his [Alleyne]

claim, and his inability to obtain relief on that

claim—whether correct or not—does not make the

Section 2255 remedy any less adequate or

effective.

Slusser, 36 F.4th at 596-97.

With respect to Burrage, it was decided prior to the

filing of Brown’s first § 2255 motion. Therefore, any claim

based upon Burrage could (and should) have been presented in his

first § 2255 motion. “[A] federal prisoner is entitled to pursue

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a § 2241 motion only when he had no opportunity to utilize a §

2255 motion to take advantage of a change in the applicable law.

If, conversely, the prisoner had an unobstructed procedural shot

at filing a § 2255 motion to take advantage of such a change, a §

2241 motion is unavailable to him, and any otherwise unauthorized

habeas motion must be dismissed for lack of jurisdiction.” Rice

v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010). Because Brown had

an “unobstructed procedural shot at filing a § 2255 motion” based

upon Burrage, a § 2241 motion is unavailable to him.*

Having reviewed the Findings and Recommendation filed by

Magistrate Judge Aboulhosn, the court hereby OVERRULES

plaintiff’s objections and adopts the findings and

recommendations contained therein. Accordingly, the court hereby

DISMISSES plaintiff’s petition under 28 U.S.C. § 2241, and

directs the Clerk 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

* The PF&R also noted that Burrage was inapplicable to

Brown’s case because he was not subject to a “death results”

enhancement. See ECF No. 22 at 14. Brown did not raise an

objection to this finding.

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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 directed to forward a copy of this

Memorandum Opinion and Order to plaintiff, pro se, and counsel of

record.

IT IS SO ORDERED this 8th day of March, 2023.

ENTER:

Raut O Dabo

David A. Faber

Senior United States District Judge