United States District Court, N.D. West Virginia
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO.
14] AND DISMISSING WITH PREJUDICE THE PETITION FOR A WRIT OF
HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 [DKT. NO.
M. KEELEY UNITED STATES DISTRICT JUDGE
February 9, 2012, in the Eastern District of Pennsylvania,
the petitioner, Tuan Le (“Le”), pleaded guilty to
various charges stemming from his alleged participation in
two armed robberies (Dkt. Nos. 73; 74). These included
one count of conspiracy to interfere with commerce by
robbery, in violation of 18 U.S.C. § 1951(a); two counts
of aiding and abetting the interference with interstate
commerce by robbery, in violation of 18 U.S.C. § 1951(a)
and 2; and one count of aiding and abetting carrying and
using a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c)(1) and 2
(Dkt. Nos. 18; 73). The district court sentenced Le to a
total term of 300 months of incarceration (Dkt. No. 85).
Thereafter, he pursued an unsuccessful direct appeal, as well
as an unsuccessful motion to vacate his conviction under 28
U.S.C. § 2255 (Dkt. Nos. 109; 123; 128).
September 3, 2015, Le filed the pending Petition for Habeas
Corpus Pursuant to 28 U.S.C. § 2241
(“Petition”) (Dkt. No. 1). Le is currently
incarcerated in the Northern District of West Virginia at
Federal Correctional Institution, Gilmer, and he properly
filed the Petition in his district of confinement.
Id. at 1; Rumsfeld v. Padilla, 542 U.S.
426, 442-43 (2004). In the Petition, Le seeks to have the
Court vacate his conviction under 18 U.S.C. § 1951(a),
otherwise known as Hobbs Act robbery (Dkt. No. 1-1 at 19). In
support, he argues that he is actually and factually innocent
of the crime because the government failed to present proof
that the establishments at issue affected interstate
commerce. Id. at 9. He also argues that the
government violated the principles of federalism by
prosecuting him, and that his attorney ineffectively
investigated both the substance of the indictment and the
circumstances of his case (Dkt. No. 1 at 5, 17).
to 28 U.S.C. § 636 and LR PL P 2, the Court referred the
Petition to the Honorable Robert W. Trumble, United States
Magistrate Judge, for initial review. On June 8, 2016,
Magistrate Judge Trumble entered a Report and Recommendation
(“R&R”) recommending that the Court deny and
dismiss the Petition (Dkt. No. 15 at 6). He reasoned that Le
cannot utilize § 2241, rather than § 2255, to
attack his conviction because the conduct for which he was
convicted remains a criminal offense. Id.
reviewing a magistrate judge's R&R made pursuant to
28 U.S.C. § 636, the Court must review de novo
only the portion of the R&R to which an objection is
timely made. 28 U.S.C. § 636(b)(1)(C). Otherwise,
“the Court may adopt, without explanation, any of the
magistrate judge's recommendations to which the prisoner
does not object.” Dellacirprete v. Gutierrez,
479 F.Supp.2d 600, 603-04 (N.D. W.Va. 2007) (citing Camby
v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)). On June
24, 2016, Le filed timely objections to the R&R,
reasserting that he is “actually and factually innocent
of the Hobbs Act robbery” (Dkt. No. 17 at 5). He
further argues that the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015),
renders void his conviction under 18 U.S.C. § 924(c)
(Dkt. No. 17 at 4). After de novo review of the
R&R, the Court finds that Le's objections are without
outlined in the R&R, it is well established that
challenges to conviction and sentence validity are properly
brought pursuant to 28 U.S.C. § 2255. Rice v.
Rivera, 617 F.3d 802, 807 (4th Cir. 2010); In re
Vial, 115 F.3d 1192, 1194 (4th Cir. 1997). Only in
limited circumstances, when § 2255 is an
“inadequate or ineffective remedy, ” §
2255's savings clause permits petitioners to bring a
collateral attack pursuant to § 2241. In re
Vial, 115 F.3d at 1194 n.5; In re Jones, 226
F.3d 328, 333 (4th Cir. 2000). In the Fourth Circuit, a
petitioner may establish “that § 2255 is
inadequate or ineffective to test the legality of a
conviction” if he can prove:
(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 prisoner 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.
In re Jones, 226 F.3d at 333-34. Essentially, a
prisoner must have “had no opportunity to utilize a
§ 2255 motion to take advantage of a change in the
applicable law.” Rice, 617 F.3d at 807.
as Magistrate Judge Trumble reasoned, Le simply has not
established that § 2255 is an inadequate or ineffective
remedy because he has not met the requirements articulated in
In re Jones (Dkt. No. 15 at 6). The only requisite
change in substantive law that he cites is the Supreme
Court's decision in Johnson v. United
States (Dkt. No. 17 at 4). That new rule, however,
is one of constitutional law and satisfies the gatekeeping
provisions of § 2255. Rice, 617 F.3d at
Therefore, the Court concludes that Le has not satisfied the
stringent requirements to challenge his conviction and
sentence through § 2241, rather than § 2255.
reasons discussed, the Court:
OVERRULES Le's objections (Dkt. No. 17);
ADOPTS the R&R (Dkt. No. 14);
DENIES the Petition ...