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Walker v. J. Sadd

United States District Court, N.D. West Virginia

May 30, 2017

MISCHA WALKER, Petitioner,
v.
J. SADD, Warden, Respondent.

          MEMORANDUM OPINION AND ORDER ADOPTING AND AFFIRMING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, DISMISSING WITHOUT PREJUDICE § 2241 PETITION AND OVERRULING PETITIONER'S OBJECTIONS

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.

         The petitioner, Mischa Walker (“Walker”), filed this pro se[1]petition under 28 U.S.C. 2241 attacking the validity of his conviction and sentence. The magistrate judge entered a report recommending that Walker's petition be summarily dismissed for lack of subject matter jurisdiction. Walker then filed timely objections to the report and recommendation. For the following reasons, the magistrate judge's report and recommendation is adopted and affirmed, Walker's § 2241 petition is dismissed without prejudice, and Walker's objections are overruled.

         I. Background

         Walker plead guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) before the United States District Court for the District of Maryland. In the plea agreement, Walker stipulated to a statement of facts, providing that he fired a stolen, sawed-off shotgun outside his residence, pointed the firearm at several neighbors, then went inside. Police arrived on the scene and found a spent shotgun shell outside Walker's front door. Walker refused to exit the residence, and the police forcibly removed him. The police then conducted a protective sweep and found a sawed-off shotgun in plain view that was later determined to have been stolen. At Walker's change of plea hearing, the court reviewed this statement of facts with Walker, and Walker affirmed that they were true. The court accepted the plea agreement and sentenced Walker to 120 months of imprisonment.

         Walker appealed his conviction and sentence to the United States Court of Appeals for the Fourth Circuit, and it was affirmed. Walker then filed a motion under 28 U.S.C. § 2255 challenging the validity of his conviction and sentence, alleging he was provided ineffective assistance of counsel in violation of the Sixth Amendment. His motion was denied and he did not appeal. Walker has now filed a motion under § 2241 asking this Court to vacate his conviction and sentence on the ground that he is actually innocent of his offense.

         II. Applicable Law

         Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de novo review of any portion of the magistrate judge's recommendation to which objection is timely made. Because Walker filed objections to the report and recommendation, the magistrate judge's recommendation will be reviewed de novo as to those findings to which objections were made. As to those findings to which objections were not filed, those findings and recommendations will be upheld unless they are “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A).

         III. Discussion

         Magistrate Judge Michael John Aloi concluded that § 2241 is an improper vehicle for Walker's claims because he is challenging the validity of his conviction and sentence and that Walker failed to show that § 2255 was inadequate or ineffective to test the legality of his conviction and sentence. Specifically, the magistrate judge concluded that Walker's conviction was legal at the time of his guilty plea and that Walker cannot satisfy § 2255's gatekeeping provisions because he does not allege an intervening change in constitutional law. However, the magistrate judge concluded that Walker fails to established an intervening change in substantive law that would negate the criminality of his conduct. Walker objects to this conclusion and it will be reviewed de novo.

         A prisoner may file a motion under § 2255 to collaterally attack the legality of his conviction or sentence. 28 U.S.C. § 2255(a); Davis v. United States, 417 U.S. 333, 343 (1974). But generally, a prisoner may file a petition under § 2241 to challenge only the manner in which a sentence is executed. 28 U.S.C. § 2241(c). A prisoner may use § 2241 to collaterally attack the legality of his conviction or sentence only if the remedy under § 2255 is “inadequate or ineffective.” In re Jones, 226 F.3d 328, 332 (4th Cir. 2000); see also 28 U.S.C. § 2255(e).

         Section 2255 is not inadequate merely because the prisoner has been unable to obtain relief under § 2255. In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997). Nor is § 2255 rendered inadequate because of a limitation bar, the prohibition against successive petitions, or a procedural bar due to failure to raise the issue on direct appeal. Id. Rather, § 2255 is inadequate and ineffective to test the legality of a conviction when:

(1) at the time of the 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.

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

         In his objections, Walker argues that Henderson v. UnitedStates, 135 S.Ct. 1780 (2015), constitutes an intervening change in substantive law that makes him actually innocent of his offense. Walker argues that Henderson changed the elements for proving constructive possession under ยง 922(g) such that the government must establish that Walker specifically intended to exercise control over the firearm. Walker argues that he was not in actual possession of the ...


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