Petition for Writ of Certiorari — Earl Moore, Petitioner v. Stephen Kallis, Warden

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USCA4 Appeal: 18-7167

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-7167

EARL MOORE,

Petitioner Appellant,

S. KALLIS, Warden,

Respondent Appellee.

Appeal from the United States District Court for the Northern District of West Virginia,

at Elkins. John Preston Bailey, District Judge. (2:17-cv-00109-JPB)

Submitted: January 29, 2019

Decided: February 7, 2019

Before AGEE and WYNN, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Earl Moore, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

USCA4 Appeal: 18-7167

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PER CURIAM:

Earl Moore, a federal prisoner, appeals the district court's order accepting the

recommendation of the magistrate judge and dismissing his 28 U.S.C. § 2241 (2012)

petition without prejudice for lack of jurisdiction. We have reviewed the record and find

no reversible error. Accordingly, although we grant leave to proceed in forma pauperis,

we affirm for the reasons stated by the district court. Moore v. Kallis, No. 2:17-cv00109-JPB (N.D.W. Va. Aug. 8, 2018). We dispense with oral argument because the

facts and legal contentions are adequately presented in the materials before this court and

argument would not aid the decisional process.

AFFIRMED

Case 2:17-cv-00109-JPB-JES Document 10 Filed 07/02/18 Page 1 of 12 PagelD #: 53

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

WHEELING

EARL MOORE,

Petitioner,

Civil Action No. 2:17cv109

(Judge Bailey)

S. KALLIS, Warden,

Respondent.

REPORT AND RECOMMENDATION

I. Introduction

On August 18, 2017, the pro se Petitioner, Earl Moore, an inmate incarcerated at

FCI Hazelton in Bruceton Mills, West Virginia, filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241, challenging his sentence imposed in the Eastern District

of Pennsylvania. The Petitioner paid the $5 filing fee on September 5, 2017.

The matter is assigned to the Honorable John Preston Bailey, United States

District Judge, and is referred to the undersigned United States Magistrate Judge for

initial screening and to make proposed findings and a recommendation for disposition,

pursuant to 28 U.S.C. § 636(b)(1)(B).

II. Factual and Procedural History'

A. Conviction and Sentence

The facts are taken from the Petitioner's criminal Case No. 2:08cr730 in the United States

District Court for the Eastern District of Pennsylvania, available on PACER. Unless otherwise noted,

the ECF entries in this section refer to that criminal case. Philips v. Pitt Crity. Mem. Hosp., 572 F.3d

176, 180 (4th Cir. 2009) (courts "may properly take judicial notice of matters of public record"); Colonial

Penn. Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (We note that 'the most frequent use of

judicial notice of ascertainable facts is in noticing the contents of court records.").

FILED: April 9, 2019

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-7167

(2: 17-cv-00 109-JPB)

EARL MOORE

Petitioner Appellant

S. KALLIS, Warden

Respondent Appellee

The court denies the petition for rehearing and rehearing en banc. No judge

requested a poll under Fed. R. App. P. 35 on the petition for rehearing en banc.

Entered atth iretion thpnei: Judge Agee, Judge Wynn, and Senior

Judge Traxier.

For the Court

Is! Patricia S. Connor, Clerk

Case 2:17-cv-00109-JPB-JES Document 10 Filed 07/02/18 Page 2 o,1' 12 PagelD #: 54

A. Conviction and Sentence

On December 10, 2008, a grand jury in the Eastern District of Pennsylvania

returned an indictment against the Petitioner, charging him with one count of attempt to

possess five kilograms or more of cocaine with the intent to distribute, in violation of

Title 21, United States Code, Section 846. On January 11, 2010, following a 3-day trial,

a jury found the Petitioner guilty of the offense. ECF No. 58.

The Probation Office determined that the Petitioner was responsible for more

than five but less than ten kilograms of cocaine, which carried a base offense level of

32. The Probation Office applied a two-level enhancement for obstruction of justice,

resulting in an adjusted offense level of 34. However, based on his criminal record, the

Petitioner was a career offender pursuant to Sections 4131.1, and his offense level under

this guideline was 37. The Petitioner was in criminal history category VI regardless of

his career offender status, and his guideline range was 360 months to life imprisonment.

ECF No. 121 at 2-3.

On July 6, 2010, the district court imposed a within-guideline range sentence of

360 months imprisonment, a term of supervised release of 8 years, a fine of $5000, and

a special assessment of $100. ECF No. 77.

B. Appeal

On March 17, 2010, the Petitioner filed a notice of appeal and subsequently

argued that the government failed to present sufficient evidence for the jury to find him

guilty of attempting to possess with intent to distribute five kilograms of cocaine.

Specifically, he asserted that the government failed to prove that he took a "substantial

step" toward the commission of a crime because he did not actually transfer the

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$165,000 to the government informant. In addition, the Petitioner argued that his

sentence was substantively unreasonable. Specifically, the Petitioner asserted that, in

determining the duration of the sentence, the District Court should have considered the

fact that he was "a smalltime drug dealer," who was "encouraged by government agent

to gather money from others in an effort to lure them into purchasing a large amount of

cocaine." In addition, the Petitioner argued that his sentence "[was] beyond any rational

scheme designed to impose punishment," and that the District Court "overrepresent[ed]"

his criminal history. Case No. 10-1736, Doc. 003110449913 at pp. 41-42. On November

14, 2011, the Third Circuit Court of Appeals affirmed the District Court's judgment. ECF

No. 87.

C. Motions to Vacate, Appeals Thereof and other Motions for Relief

On April 23, 2012, the Petitioner filed a pro se motion under 28 U.S.C. §

2255 to vacate, set aside, or correct sentence by a person and federal custody. In his

motion, the petitioner raised claims of ineffective assistance of counsel, namely: (1)

failure to challenge the legality of the stop and seizure; (2) failure to challenge the timing

of the indictment under the Speedy Trial Act; (3) failure to order discovery of Brady

materials from the government; (4) failure to give him full discovery prior to trial; and (5)

failure to give him full discovery prior to filing the direct appeal. ECF No. 92. On July 17,

2013, the District Court denied the Petitioner's motion. ECF No. 104.

On August 6, 2013, the Petitioner filed a pro se notice of appeal. ECF No. 106.

On September 9, 2013, the Third Circuit Court of Appeals dismissed the Petitioner's

appeal for failure to timely prosecute because he failed to pay the requisite fee as

Case 2:17-cv-00109-JPB-JES Document 10 Filed 07/02/18 Page 4 o-1' 12 PagelD #: 56

directed or file a motion to proceed in forma pauperis and certificate of service. ECF

No. 108.

On June 16, 2016, the Petitioner, by counsel, filed a Notice of Filing of Protective

§ 2255. ECF No. 119. Relying on Johnson v. United States, 135 S.Ct. 2552 (2015), the

Petitioner moved the court to set aside the judgment in his case and correct his

sentence. ECF No. 119 at 2. On March 22, 2017, the Petitioner, by counsel, moved to

withdraw his pending 2255 motion. ECF No. 126. On May 23, 2017, the Third Circuit

Court of Appeals denied the Petitioner's application under 28 U.S.C.§§ 2244 and

2255(h) in light of the decision in Beckles v. United States, 137 S.Ct. 886 (2017). ECF

No. 127. On June 12, 2017, the District Court dismissed the protective § 2255 in light of•

the Petitioner's Notice of Withdrawal. ECF No. 128.

Instant § 2241 Petition

The Petitioner attacks his sentence under the savings clause and relies on

Alleyne v. United States, 133 S.Ct. 2151 (2013); and Mathis v. United States, 136 S.Ct.

2243 (2016). The Petitioner contends that § 2255 is inadequate or ineffective to test the

legality of his detention after his previous § 2255 motion was unsuccessful, because the

the Supreme Court has determined that his prior convictions no longer trigger the career

offender pehalty. ECF No. I -at 9. For relief, the Petitioner requests that this Court

vacate his sentence and resentence him under the correct guideline range. Id. at 8.

Ill. Legal Standard

Review of Petitions for Relief

Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and the Court's Local

Rules of Prisoner Litigation Procedure, this Court is authorized to review such petitions

Case 2:17-cv-00109-JPB-JES Document 10 Filed 07/02/18 Page 5 of 12 PagelD #: 57

for relief and submit findings and recommendations to the District Court. This Court is

charged with screening the Petitioner's case to determine if "it plainly appears from the

petition and any attached exhibits that the petitioner is not entitled to relief in the district

court." Rule 4, Rules Governing Section 2254 Cases in the U.S. District Courts; see

also Rule 1(b) Rules Governing Section 2254 Cases in the U.S. District Courts (a

district court may apply these rules to a habeas corpus petition not filed pursuant to §

2254).

Pro Se Litigants.

Courts must read pro se allegations in a liberal fashion and hold those pro se

pleadings "to less stringent standards than formal pleadings drafted by lawyers."

Haines v. Kerner, 404 U.S. 519, 520 (1972). Pursuant to 28 U.S.C. § 1915A(b), the

Court is required to perform a judicial review of certain suits brought by prisoners and

must dismiss a case at any time if the Court determines that the complaint is frivolous,

malicious, fails to state a claim upon which relief can be granted, or seeks monetary

relief against a defendant who is immune from such relief. A complaint is frivolous if it is

without arguable merit either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325

(1989) (superseded by statute). The Supreme Court in Neitzke recognized that:

Section 1915(d) 2 is designed largely to discourage the filing

of, and waste of judicial and private resources upon,

baseless lawsuits that paying litigants generally do not

initiate because of the costs of bringing suit and because of

the threat of sanctions for bringing vexatious suits

under Federal Rule of Civil Procedure 11. To this end, the

The version of 28 U.S.C. § 1915(d) which was effective when Neitzke was decided provided,

"The court may request an attorney to represent any such person unable to employ counsel and may

dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or

malicious." As of April 26, 1996, the statute was revised and 28 U.S.C. § 1915A(b) now provides, "On

review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint,

if the complaint-- (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief."

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statute accords judges not only the authority to dismiss a

claim based on an indisputably meritless legal theory, but

also the unusual power to pierce the veil of the complaint's

factual allegations and dismiss those claims whose factual

contentions are clearly baseless.

490 U.S. at 327.

Post-Conviction Remedies and Relief

Prisoners seeking to challenge the validity of their convictions or their sentences

are required to proceed under § 2255 in the district court of conviction. By contrast, a

petition for writ of habeas corpus, pursuant to § 2241, is intended to address the

execution of a sentence, rather than its validity, and is to be filed in the district where the

prisoner is incarcerated. "In a § 2241 petition a prisoner may seek relief from such

things as the administration of his parole, computation of his sentence by prison

officials, disciplinary actions taken against him, the type of detention, and prison

conditions in the facility where he is incarcerated." Adams v. United States, 372 F.3d

132, 135 (2d Cir. 2004).

While the terms of § 2255 expressly prohibit prisoners from challenging their

convictions and sentences through a habeas corpus petition under § 2241, there is

nonetheless a "savings clause" in § 2255, which allows a prisoner to challenge the

validity of his conviction under § 2241, if he can demonstrate that § 2255 is "inadequate

or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). The law is

clearly developed, however, that relief under § 2255 is not inadequate or ineffective

merely because relief has become unavailable under § 2255 because of a limitation

Case 2:17-cv.-00109-JPB-JES Document 10 Filed 07102118 Page 7 of 12 PagelD #: 59

bar,3 the prohibition against successive petitions, or a procedural bar due to failure to

raise the issue on direct appeal. In re Vial, 115 F. 3d 1192, 1194 n. 5 (4th Cir. 1997).

When contesting a conviction, a petitioner bears the burden of demonstrating

that the § 2255 remedy is inadequate or ineffective, and the standard is an exacting

one. In the Fourth Circuit, § 2255 is deemed to be "inadequate and ineffective" to test

the legality of a conviction only when all three of the following conditions are satisfied:

at the time of the conviction, the settled law of this Circuit

or of the Supreme Court established the legality of the

conviction;

subsequent to the prisoner's direct appeal and first

section 2255 motion, the substantive law changed such that

the conduct of which the prisoner was convicted is deemed

not to be criminal, and

the prisoner cannot satisfy the gate-keeping provisions of

section 2255 because the new rule is not one of

constitutional law.

In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000) (emphasis added).

Further, "[t]he text of the savings clause does not limit its scope to testing the

legality of the underlying criminal conviction." United States v. Wheeler, 886 F.3d 415,

(4th Cir. 2018), reh'g en banc denied June 11, 2018 (quoting Brown v. Caraway, 719

In 1996, the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA") was enacted,

establishing a one-year limitation period within which to file any federal habeas corpus motion. 28 U.S.C.

§ 2255. The limitation period shall run from the last of:

The date on which the judgment of conviction becomes final;

The date on which the impediment to making a motion created by governmental action in

violation of the constitution or laws of the United States is removed, if the movant was

prevented from making a motion by such governmental action;

The date on which the right was initially recognized by the Supreme Court, if that right has

been newly recognized by the Supreme Court and made retroactively applicable to cases on

collateral review; or

The date on which the facts supporting the claim or claims presented could have been

discovered through the exercise of due diligence.

28 U.S.C. § 2255(f).

Case 2:17-cv-00109-JPB-JES Document 10 Filed 07102/18 Page 8 of 12 PageD #: 60

F.3d 583, 588 (7th Cir. 2013)). In Wheeler, the Fourth Circuit concluded that § 2255(e)

provides "an avenue for prisoners to test the legality of their sentences pursuant to §

2241, and Jones is applicable to fundamental sentencing errors, as well as undermined

convictions." Id. at 428. When contesting a sentence through a petition filed under §

2241, a petitioner still must meet the savings clause of § 2255. In the Fourth Circuit, §

2255 is deemed to be "inadequate and ineffective" to test the legality of a sentence only

when all four of the following conditions are satisfied:

(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.

Wheeler, supra, at 429 (emphasis added). The Fourth Circuit further specified that a

change of substantive law within the circuit, not solely in the Supreme Court, would be

sufficient to satisfy the second prong of the four-part test established in Wheeler. .jcL

IV. Analysis

Petitioner does not seek relief under any permissible ground in his § 2241

petition

The-Petitioner claims do not relate to the execution of his sentence or

calculation 'of his sentence by the BOP. Instead, the claims relate to the validity of the

Petitioner's sentence imposed in the Eastern District of Pennsylvania. Such claims are

properly contested either on direct appeal or in a § 2255 proceeding, and thus the

Case 2:17-cv-00109-JPB-JES Document 10 Filed 07102/18 Page 9 of 12 PagelD #: 61

instant petition is actually an attempt to obtain relief available under § 2255, and should

be treated as such.4

Although the Petitioner asserts that he is entitled to relief under the savings

clause, it is clear that he is not entitled to its application. Because the Petitioner is not

contesting his conviction, the Jones standard does not apply to his petition for relief.

Instead, the Court must review the Petitioner's challenge of his sentence under the fourpart Wheeler test. As to the first prong, it is clear that at the time of sentencing, settled

law established the legality of the sentence imposed. However, the Petitioner cannot

meet the second element of the Wheeler test, because any change to the settled law

which established the legality of the Petitioner's sentence has not been deemed to

apply retroactively to cases on collateral review. Because Petitioner cannot meet the

second prong of the Wheeler test, this Court does not need to consider the third or

fourth parts of the test.

The Petitioner argues that his two prior offenses, one being a Pennsylvania drug

offense under § 780-1 13(a)(3), and the other being resisting arrest under 18 Pa. C.S. §

5104, no longer qualify as predicate offenses for a career offender enhancement. The

Petitioner cites to a litany of circuit court cases and cases issued by the United States

Supreme Court in an effort to establish his entitlement to relief. However, no case that

he cites has been held to be retroactively applicable to cases on collateral review by

either SCOTUS or the Fourth Circuit.

The Court also notes that, regardless of how such a pleading is styled or captioned, a second

or successive attempt to obtain relief under 28 U.S.C. § 2255 requires authorization from the appropriate

appellate court, which authorization is not present here.

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In particular, the undersigned notes that the Petitioner relies on Mathis v. United

States, 136 S.Ct. 2243 (2016), Descamps v. United States, 133 S.Ct. 2276 (2013), and

Alleyne v. United States, 133 S.Ct. 2151 for his argument that his sentence was

improperly enhanced. However, the Petitioner's reliance on these three cases is

misplaced. Neither Mathis nor Descamps apply retroactively in this Circuit. See

Stewart v. United States, No. Elh-17-1408. 2017 WL 2361809, at *5 (D.Md. May 31,

2017) (§ 2255 case collecting cases holding that neither Descamps nor Mathis is

retroactive); Brandon v. Wilson, No. 3:16cv142, 2017 WL 707497, at *4 (N.D.W. Va.

Jan. 30, 2017) (§ 2241 case collecting cases holding Mathis is non-retroactive).

Likewise, courts in this circuit have consistently held that Alleyne does not apply ,

retroactively on collateral review. See United States v. Stewart, 540 Fed.Appx. 171, 172

(4th

Cir. 2013) ("We note that Alleyne has not been made retroactively applicable to

cases on collateral review"); see also Gibson v. United States, Case No. 1:11-cv-0024,

2014 WL 204198 (S.D.W. Va. Jan. 17, 2014) (noting the Fourth Circuit's decision in

U.S. v. Stewart, barred this Court from applying Alleyne retroactively on collateral

review); Barren v. United States, Case No. PJM 13-1824, 2014 WL 4299092, at *7 (D.

Md. Aug. 29, 2014) (holding that Alleyne did not declare a new rule of law that would be

retroactive); Ramseur v. United States, Case No. 9:1 1-cv-0075-RLV, 2014 WL

4854642, at *5 (WD.N.C. Sep. 29, 2014) (finding that Alleyne has not been made

retroactive on collateral review); Boyd v. United States, Case No. 7:08-cr-0003, 2014

WL 1653065, at *2 (W.D. Va. Apr. 24, 2014) (same); Ferranti v. United States, No.

1:91cr337-A, 2014 WL 2967944, at *2 (E.D. Va. June 30, 2014) (holding that "the

principle adopted by the court in Alleyne is a 'new constitutional rule of criminal

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procedure,

which

...

Is not applicable to cases on collateral review. Furthermore,

Alleyne is not a 'watershed' decision by the Supreme Court's definition. Therefore,

Alleyne is not retroactive on collateral review.") (Internal citation omitted). Finally, the

Petitioner's status as a career offender is based on prior convictions. The rule set out in

Apprendi5, and extended by Alleyne, does not apply to prior convictions. United States

v. Richardson, 2013 WL 399-1474 (.D. Va. Aug. 2, 2013); United States v. Wynn, 2013

WL 3941316 (6th Cir. July 31, 2013); Brockincflon v. United States, 2013 WL 5914255

(D.S.C. Oct. 31, 20013); Lansdowne v. Wilson, 2013 WL 5770528 (E.D. Va. Oct. 22,

2013) (A petitioner may not challenge the validity of his sentence in a Section 2241

alleging that he is "actually innocent" of the sentencing enhancement based upon

Alleyne).

Because the Petitioner attacks the validity of his sentence, but fails to establish

that he meets all four prongs of the Wheeler savings clause test for erroneous

sentences, the Petitioner cannot demonstrate that § 2255 is an inadequate or ineffective.

remedy and has improperly filed his petition under § 2241 with respect to his sentence.

Accordingly, this Court is without jurisdiction to consider the petition. When subjectmatter jurisdiction does not exist, "the only function remaining to the court is that of

announcing the fact and dismissing the cause."

Steel Co. v. Citizens for a Better

Environment, 523 U.S. 83, 118 S.Ct. 1003, 1012-16 (1998); Reinbold v. Evers, 187

F.3d 348, 359 n.10 (4th Cir. 1999).

VI. Recommendation

For the foregoing reasons, the undersigned recommends that the petition [ECF

No. 1] be DENIED and DISMISSED without prejudice.

Apprendi v. New Jersey, 530 U.S. 466 (2000).

Case 2:17-cv-00109-JPB-JES Document 10 Filed 07102/18

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Within fourteen (14) days after being served with a copy of this

Recommendation, any party may file with the Clerk of the Court, written objections

identifying the portions of the Recommendation to which objections are made, and the

basis for such objections. A copy of such objections should also be submitted to the

United States District Judge.

Failure

to timely

file objections to the

Recommendation set forth above will result in waiver of the right to appeal from a

judgment of this Court based upon such Recommendation. 28 U.S.C. §636(b)(1);

Thomas v. Am, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985);

United States v Schronce, 727 F 2d 91 (4th Cir. 1984) cert. denied, 467 U.S. 1208

(1984).

This Report and Recommendation completes the referral from the district court.

The Clerk is directed to terminate the Magistrate Judge's association with this case.

The Clerk of the Court is directed fo mail a copy •äf this Report and

Recommendation to the pro se Petitioner by certified mail, return receipt requested, to

his last known address as reflected on the docket sheet.

DATED: July 2,2018

•

JAMES E. SEIBERT

UNITED STATES MAGISTRATE JUDGE

Case 2:17-cv-00109-JPB Document 13 Filed 08108/18 Page 1 of 8 PageD #: 71

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

ELKINS

EARL MOORE,

Petitioner,

CIVIL ACTION NO. 2:17.-CV-109

(BAILEY)

S. KALLIS, Warden,

Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION

On this day, the above-styled matter came before this Court for consideration of the

Report and Recommendation of United States Magistrate Judge James E. Seibert [Doc.

10]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge

Seibert for submission of a proposed report and recommendation ("R&R"). Magistrate

Judge Seibert filed his R&R on July 2, 2018, wherein he recommends this Court deny and

dismiss without prejudice petitioner's § 2241 Petition [Doc. 1].

Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo

review of those portions of the magistrate judge's findings to which objection is made.

However, the Court is not required to review, under a de novo or any other standard, the

factual or legal conclusions of the magistrate judge as to those portions of the findings or

recommendation to which no objections are addressed. Thomas v. Am, 474 U.S. 140,

150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo

review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v.

Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91,

Case 2:17-cv-00109-JPB Document 13 Filed 08/08/18 Page 2 of 8 PagelD #: 72

94 (4th Cir. 1984). Here, objections to Magistrate Judge Seibert's R&R were due within

fourteen (14) days of service, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b).

Petitioner timely filed his Objections on July 20, 2018 [Doc. 12]. Accordingly, this Court will

review the portions of the R&R to which the petitioner objects under a de novo standard of

review. The remainder of the R&R will be reviewed for clear error.

BACKGROUND

Petitioner does not object to the R&R's recitation of the factual background and

procedural history. Thus, rather than reiterating such in detail, this Court will only briefly

summarize that which is most relevant.

On January 11, 2010, following trial in the Eastern District of Pennsylvania, a jury

found petitioner guilty of attempt to possess five kilograms or more of cocaine with the•

intent to distribute, in violation of 21 U.S.C. § 846. On July 6, 2010, the district court

imposed a within-guideline range sentence of 360 months imprisonment, 8 years of

supervised release, and a $5,000 fine. In determining the appropriate guideline range,

petitioner's offense level was raised from level 34 to level 37 because, based on his

criminal record, petitioner was found to be a career offender.

Petitioner's direct appeal challenged both his conviction and sentence. On

November 14, 2011, the United States Court of Appeals for the Third Circuit affirmed the

district court's judgment. On April 23, 2012, petitioner filed a pro se § 2255 petition

asserting claims of ineffective assistance of counsel. On July 17, 2013, the district court

denied the § 2255 petition. On September 9, 2013, the Third Circuit dismissed petitioner's

appeal of the district court's denial of the § 2255 petition for failure to timely prosecute.

On June 16, 2016, petitioner, by counsel, filed a Notice of Filing of Protective § 2255

Case 2:17-cv-00109-JPB Document 13 Filed 08/08/18 Page 3 of 8 PagelD #: 73

which, relying on Johnson v. United States, 135 S.Ct. 2552 (2015), moved the court to

set aside the judgment in his case and correct his sentence. Petitioner, by counsel, then

moved to withdraw his pending § 2255 petition on March 22, 2017. On May 23, 2017, in

light of the Supreme Court's decision in Beckles v. United States, 137 S.Ct. 886 (2017),

the Third Circuit denied petitioner's application for a second or successive § 2255 petition.

On June 12, 2017, the district court dismissed the protective § 2255 petition in light of the

petitioner's notice of withdrawal.

Petitioner's instant § 2241 petition attacks his sentence under the savings clause of

§ 2255(e), relying on Alleyne v. United States, 570 U.S. 99 (2013), and Mathis v. United

States, 136 S.Ct. 2243 (2016). Petitioner contends that the Supreme Court has

determined that his prior convictions no longer trigger the career offender penalty, and that

§ 2255 is inadequate or ineffective to test the legality of his detention after his previous

§ 2255 petition was unsuccessful. For relief, petitioner requests this Court vacate his

sentence and resentence him under the "correct" guideline range.

APPLICABLE LAW

Where, as here, a petitioner seeks to attack the imposition of his sentence rather

than its execution, he may only seek a writ of habeas corpus pursuant to § 2241 by

demonstrating that § 2255 is "inadequate or ineffective to test the legality of his detention."

28 U.S.C. § 2255(e) (the "savings clause"); see also In re Jones, 226 F.3d 328 (4th Cir.

2000). Relief under § 2255 is not inadequate or ineffective merely because relief has

become unavailable under § 2255 because of a limitation bar, the prohibition against

successive petitions, or a procedural bar due to failure to raise the issue on direct appeal.

Case 2:17-cv-00109-JPB Document 13 Filed 08/08/18 Page 4 of 8 PagelD #: 74

In re Via!, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997).

In United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), the Fourth Circuit held

that § 2255 is inadequate or ineffective to test the legality of a sentence when all of the

following four conditions are met:

(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.

886 F.3d at 429 (citing In re Jones, 226 F.3d at 333-34).

DISCUSSION

Magistrate Judge Seibert recommends that this Court deny and dismiss petitioner's

§ 2241 petition for lack of jurisdiction, stating that "[b]ecause the Petitioner attacks the

validity of his sentence, but fails to establish that he meets all four prongs of the Wheeler

savings clause test for erroneous sentences, the Petitioner cannot demonstrate that § 2255

is an inadequate or ineffective remedy and has improperly filed his petition under § 2241

with respect to his sentence" [Doc. 10 at 111. Magistrate Judge Seibert determined that

petitioner could not meet the second element of the Wheeler test "because any change to

the settled law which established the legality of the Petitioner's sentence has not been

deemed to apply retroactively to cases on collateral review" [Id. at 9]. Specifically,

Magistrate Judge Seibert found that the cases petitioner relies on—Mathis, Alleyne, and

Descamps v. United States, 570 U.S.. 254 (2013)—do not apply retroactively on collateral

review in this circuit [Id. at 9-11].

Case 2:17-cv-00109-J•PB Document 13 Filed 08/08/18 Page 5 of 8 PagelD #: 75

Petitioner presents two objections. First, petitioner argues Magistrate Judge

Seibert's determination that Mathis does not apply retroactively on collateral review in this

circuit is "wrong" [Doc. 12 at 1-2]. Petitioner relies on Graham v. United States, 276

F.Supp.3d 509 (D.S.C. 2017), to support this assertion. In Graham, the United States

District Court for the District of South Carolina concluded "that Mathis announced an old

rule, which is applicable on collateral review pursuant to Whorton [v. Bockting, 549 U.S.

406 (2007)] and Teague [v. Lane, 489 U.S. 288 (1989)]." 276 F.Supp.3d at 513.

This Court, along with other district courts in this circuit, have held that Mathis does

not represent a substantive change in the law; See, e.g., Gutierrez v. United States, 2018

WL 2416585, at *2 (N.D. W.Va. May 29, 2018) (Keeley, J.) ("Put simply, Mathis sets forth

a 'procedural rule that has not been made retroactive on collateral review." (quoting Fisher

v. Rickard, 2018 WL 1405324, at *4 (S.D. W.Va. Feb. 16, 2018), report and

recommendation adopted, 2018 WL 1404279 (S.D. W.Va. Mar. 20, 2018))); Richards v.

Kallis, 2018 WL 3596043, at *2 (N.D. W.Va. July 26, 2018) (Stamp, J.) ("To meet the

second prong of Wheeler, the petitioner must show that a change in substantive law

applied retroactively to their sentence. The magistrate judge correctly noted that the cases

on which petitioner relies, Mathis and Hinkle, do not meet this requirement because

neither are retroactive. Thus, the magistrate judge correctly found that the petitioner's

claims may not be considered under a § 2241 petition."); Stewart v. United States, 2017

WL 2361089, at *5 (D. Md. May 31, 2017) (recognizing that Mathis did not announce a new

substantive rule applicable to cases on collateral review). Further, the United States Court

of Appeals for the Fourth Circuit has stated the following:

/18 Pacie 6 of 8 PagelD #: 75

Case 2:17-cv-00109-JPB Document 13 Filed 08/08

his career offender

In his § 2241 petition, [petitioner] sought to challenge

merely clarified when

designation based on Mathis . . . . However, Mathis

r than the modified

a court must apply the categorical approach, rathe

conviction, and did

categorical approach, in determining the nature of a prior

F. App'x 251,

not effect a change in the law. Muhammad v. Wilson, 715

change to the

252 (4th Cir. 2017) ("Mathis did not announce a substantive

2241 petition.

nge

law."). [Petitioner], therefore, cannot bring this challe

Davis v. Andrews, 727 Fed. App'x 782 (4th Cir. 2018)

(unpublished per curiani opinion).

ion that Mathis was not a

Thus, this Court finds the magistrate judge's determinat

substantive change in the law to be applied retroactively,

and therefore petitioner could not

bring a challenge to his career offender designation based

on Mathis in a § 2241 petition,

Court for the District of South

to be correct. To the extent the United States District

ions are not binding on this

Carolina reached a different conclusion in Graham, such decis

Court.' Accordingly, this objection is OVERRULED.

R&R apparently misreads

Petitioner's second objection is that "the Magistrate's

s, 133 S.Ct. 2151 (2013), that

[petitoner's] use of the decision in Alleyne v. United State

is, [petitioner] is not attempting to rely on it as retroactive,

but only its acknowledgment to

the significance of a mis-applied mandatory minimum . . ."

[Doc. 12 at 2]. This Court, of

ion, but Alleyne bears no

course, acknowledges the significance of the Alleyne decis

significance for petitioner's case here. As the magistrate

judge correctly points out, "[t]he

Petitioner's status as a career offender is based on prior

convictions. The rule set out in

Apprendi[v. New Jersey, 530 U.S. 466(2000)], and extended by

to prior convictions" [Doc. 10 at 11]; see Wheeler, 886 F.3d

Alleyne, does not apply

at 431 n.8 ("Alleyne bars

dering a § 2255,

This Court also notes that the district court in Graham was consi

rather than a § 2241, petition.

IP agelD #: 77

18 Page 7 of 8 P

Case 2:17-cv-00109-JPB Document 13 Filed 08/031

ce for a crime,' 133 S.Ct.

'judicial facffinding that increases the mandatory minimum senten

this general rule for the fact

at 2155, but the Court left undisturbed the 'narrow exception to

, 523 U.S. 224, 226 (1998)

of a prior conviction,' id. at 2160 n.1; see Almen darez- Torres

ce for a recidivist' based

(A 'penalty provision' that 'authorizes a court to increase the senten