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Banks v. Bureau of Prisons FCI Beckley

United States District Court, S.D. West Virginia, Beckley Division

September 14, 2017

JERMAINE BANKS, Petitioner,
v.
BUREAU OF PRISON FCI BECKLEY, WEST VIRGINIA, et al., Respondents.

          PROPOSED FINDINGS AND RECOMMENDATION

          Omar J. Aboulhosn United States Magistrate Judge.

         Pending is Plaintiff's Application under 28 U.S.C. § 2241 for Writ of Habeas Corpus by a Person in State or Federal Custody.[1] (Document No. 1.) By Standing Order, this matter was referred to United States Magistrate Judge R. Clarke VanDervort for submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 2.) By Order entered on January 6, 2016, the above case was referred to the undersigned for submission of proposed findings of fact and a recommendation for deposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 3.)

         FACTUAL AND PROCEDURAL HISTORY

         1. Criminal Action No. 1:07-0157:

         By Amended Information filed on August 27, 2007, Petitioner was charged with one count of knowingly and intentionally possessing with the intent to distribute 5 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1). (Criminal Action No. 1:07-0157, Document No. 16.) Also on August 27, 2007, Petitioner waived his right pursuant to Rule 7 of the Federal Rules of Criminal Procedure to be charged by indictment and pled guilty to the Information. (Id., Document Nos. 17 - 20.) A Presentence Investigation Report was prepared. (Id., Document No. 34.) The District Court determined that Petitioner had a Base Offense Level of 26, and a Total Offense Level of 31, the Court having applied an eight-level enhancement pursuant to U.S.S.G. § 4B1.1 because Petitioner met the criteria for career offender status, and a three-level reduction pursuant to U.S.S.G. § 3E1.1(a) and (b) for acceptance of responsibility. (Id., Document No. 35.) The District Court sentenced Petitioner on February 19, 2008, to serve a 192-month term of incarceration to be followed by a four-year term of supervised release. (Id., Document Nos. 33 and 36.)

         Petitioner filed a Notice of Appeal on March 4, 2008. (Id., Document No. 37.) Trial counsel filed an Anders Brief challenging the reasonableness of Petitioner's sentence. On April 10, 2009, the Fourth Circuit Court of Appeals affirmed Petitioner's conviction and sentence. United States v. Banks, 320 Fed.Appx. 198 (4th Cir. 2009).

         2. Section 2255 Motion:

         On March 8, 2010, Petitioner filed a “Challenge to the United States District Court Application of Sentence Enhancement.” (Criminal Action No. 1:07-0157, Document No. 58.) First, Petitioner alleged that the District Court improperly determined him to be a career offender pursuant to U.S.S.G. § 4B1.1.[2] (Id.) Next, Petitioner asserted that trial counsel was ineffective in failing to present mitigating circumstances surrounding his prior, non-violent, state court conviction. (Id.) Finally, Petitioner argued that the District Court imposed a sentence in violation of 18 U.S.C. § 3553(a). (Id.) The Clerk's office filed the above document as a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (Id.)

         On March 29, 2010, Petitioner filed a “Motion to Withdraw Previously Filed Pleading Construed as a Motion Under 28 U.S.C. 2255, or Alternatively, Motion for Leave to Amend and Extension of Time.” (Id., Document No. 61.) Petitioner explained that he did not intend for his “Challenge to the United States District Court Application of Sentence Enhancement” to be construed as a Section 2255 Motion. (Id.) Therefore, Petitioner requested that the Section 2255 Motion be (1) dismiss without prejudice, or (2) he be allowed 60 days to amend his Section 2255 Motion. (Id.) By Order entered on January 16, 2013, United States Magistrate Judge R. Clarke VanDervort denied Petitioner's Motion for Extension of Time as moot by the passage of time. Id., Document No. 75.) Judge VanDervort noted that Petitioner had more than adequate time to obtain his case file and to file any necessary amendments to his Section 2255 Motion. (Id.) By Proposed Findings and Recommendation entered on February 19, 2013, Judge VanDervort At the time of Petitioner's sentencing, U.S.S.G. § 4B1.1(a) provided that “[a] defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” According to his Presentence Report, Petitioner pled guilty on September 29, 1999, in the Circuit Court of McDowell County, West Virginia, to “Delivery of a Controlled Substance - Crack Cocaine” (99-F-67) and was sentenced to one to fifteen years. (Criminal Action No. 1:07-0157, Document No. 34, p. 11, ¶ 55.) On March 15, 2005, Petitioner pled guilty in the Circuit Court of Tazewell County, Virginia, to “Felony Manufacture, Sale, or Possession of a Controlled Substance” and was sentenced to ten years. (Id., p. 14, ¶ 68.) Petitioner contended that his above convictions did not meet the requirements of U.S.S.G. § 4B1.1(a)(3). U.S.S.G. § 4B1.1(a)(3) required that the defendant have “at least two prior felony convictions of either a crime of violence or a controlled substance offense.” Petitioner clearly had two prior felony controlled substances convictions. There was no requirement that the felony conviction for a controlled substance offense be a violent crime. recommended that Petitioner's Section 2255 Motion be denied. (Id., Document No. 76.) By Memorandum and Opinion Order entered on March 11, 2013, United State District Judge David A. Faber adopted Judge VanDervort's recommendation and dismissed Petitioner's Section 2255 Motion. (Id., Document Nos. 78 and 79.)

         Petitioner filed a Notice of Appeal. (Id., Document No. 77.) On July 23, 2013, the Fourth Circuit dismissed Petitioner's appeal. (Id., Document No. 84.) On August 15, 2013, Petitioner filed in the Fourth Circuit a petition for rehearing seeking an enlargement of time to file Objections to the Magistrate Judge's Report and Recommendation.” (Id., Document No. 87.) By Order filed on September 25, 2013, the Fourth Circuit denied Petitioner's petition for rehearing and notified Petitioner that he “must seek relief, if it all, by filing a Fed.R.Civ.P. 60(b) motion for reconsideration in the district court.” (Id., Document No. 89.) On October 15, 2013, Petitioner filed a Motion for Reconsideration in this Court requesting additional time to file Objections to Judge VanDervort's Proposed Findings and Recommendation. (Id., Document No. 91.) On February 14, 2014, Petitioner filed a letter-form Motion for Extension of Time to file Objections to Judge VanDervort's Proposed Findings and Recommendation. (Id., Document No. 94.) By Memorandum Opinion and Order entered on March 14, 2014, Judge Faber denied Petitioner's above Motions. (Id., Document No. 95.) On April 14, 2014, Petitioner filed his Notice of Appeal. (Id., Document No. 97.) On November 12, 2014, the Fourth Circuit dismissed Petitioner's appeal. (Id., Document Nos. 102 and 103.)

         3. Section 3582 Motion:

         On March 12, 2015, Petitioner, acting pro se, filed a Motion for Reduction of Sentence Pursuant to Title 18 U.S.C. § 3582(c)(2) arguing that he was entitled to a sentence reduction based the retroactive application of the November 1, 2014, amendment to the United States Sentencing Guidelines. (Id., Document No. 107.) By Memorandum Opinion and Order entered on January 12, 2016, the District Court appointed counsel to represent Petitioner concerning his Section 3582(c)(2) Motion and directed that the United States file a Response. (Id., Document No. 108.) On January 12, 2016, the United States filed its Response arguing that Petitioner was not eligible for a sentencing reduction under the 2014 drug amendment. (Id., Document No. 109.) On January 22, 2016, Petitioner, by counsel, filed his memorandum conceding that Petitioner was not eligible for a reduction of his sentence. (Id., Document No. 110.) By Memorandum Opinion and Order entered on March 25, 2016, the District Court denied Petitioner's Motion for a sentencing reduction pursuant to 18 U.S.C. § 3582(c)(2). (Id., Document No. 111.)

         4. Instant Section 2241 Petition:

         On June 1, 2015, Petitioner filed his Section 2241 Petition arguing that the Bureau of Prisons [“BOP”] is improperly classifying him due to the use of Petitioner's Presentence Investigation Report that contains erroneous information. (Civil Action No. 5:15-06979, Document No. 1.) Petitioner alleges that the foregoing has affected his custody level, housing, and programming. (Id.) Petitioner explains that in his underlying criminal proceedings, he was charged with 17 grams of crack cocaine and 56 grams of powder cocaine. (Id.) Petitioner states that he only pled guilty to the 17 grams of crack cocaine, but “in my PSR they calculated the 56 grams of powder cocaine that gave me an extra 2 level enhancement.” (Id.) Petitioner asserts that he “never plead guilty to the powder cocaine for them to use against [him].” (Id.) Petitioner, therefore, contends that the BOP is incorrectly “using the 56 grams of powder cocaine against [him].” (Id.) Accordingly, Petitioner requests that his Presentence Report be corrected and his custody classification be recalculated. (Id., p. 4.)

         As Exhibits, Petitioner attaches the following: (1) A copy of his Plea Agreement (Id., pp. 10 - 14.); (2) A copy of the “Judgment in a Criminal Case” as filed in Criminal Action No. 1:07-00157 (Id., p. 15.); (3) A copy of pertinent pages from Petitioner's Presentence Report (Id., pp. 16 - 17.); (4) A copy of a letter addressed to United States District Judge David A. Faber dated March 9, 2015 (Id., p. 18.); (5) A copy of a letter addressed to Assistant United States Attorney Miller Bushong dated March 9, 2015 (Id., p. 19.); (6) A copy of a letter addressed to United States Probation Officer Alexander ...


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