United States District Court, N.D. West Virginia
THUAN M. PHAM, Petitioner,
JENNIFER SAAD, Warden, Respondent.
AMENDED REPORT AND RECOMMENDATION
E. SEIBERT, U.S. MAGISTRATE JUDGE.
November 18, 2016, pro se Petitioner, Thuan M. Pham
(“Petitioner”), filed an Application for Habeas
Corpus pursuant to 28 U.S.C. § 2241. Thereafter,
Petitioner was granted leave to amend his petition.
Petitioner, who is a federal inmate housed at FCII Hazelton,
is challenging the validity of his sentence imposed in the
United States District Court for the Northern District of
Texas. This matter is pending before the undersigned for an
initial review and Report and Recommendation pursuant to LR
PL P 2.
3, 2005, Petitioner pleaded guilty to one count of conspiracy
to distribute a controlled substance, in violation of 21
U.S.C. §§ 846 and 841(a) and (b)(1)(C), and one
count of possession of a controlled substance with intent to
distribute, in violation of 21 U.S.C. §§
841(a)(1)(C) and 18 U.S.C. § 2. On September 27, 2005,
the district court sentenced Petitioner to 188 months of
imprisonment and a three-year term, of supervised release.
ECF No. 117. Petitioner did not file a notice of appeal from
the judgment of sentence.
February 6, 2012, Petitioner filed a motion for reduction of
sentence pursuant to 18 U.S.C. § 3582(c)(2) [ECF No.
152], which the court denied on February 22, 2012. ECF No.
153. On April 20, 2012, Petitioner filed a motion under 28
U.S.C. § 2255, alleging ineffective assistance of
counsel as the basis for relief. ECF No. 155. More
specifically, Petitioner argued that his counsel failed to
object to alleged errors in the presentence report and failed
to inform him that the court improperly relied on these
alleged errors in determining his sentence. Petitioner filed
a second motion under 18 U.S.C. § 3582(c)(2) raising the
same grounds for relief as asserted in the motion filed on
February 6, 2012. Accordingly, the second motion was denied
for the same reasons outlined in the court's order of
February 22, 2012. ECF No. 157. On June 12, 2012, the
district court denied Petitioner's § 2255 as
untimely. 4:12-cv-00241-A (ECF No. 4).
March 22, 2013, Petitioner filed a second motion to vacate
under 28 U.S.C. § 2255. As grounds for relief,
Petitioner complained that the court imposed an illegal
sentence through misapplication of the sentencing guidelines.
The district court concluded that was the same claim raised
in his first motion under § 2255. Therefore, the
district court dismissed the March 22, 2013, petition as
second or successive on March 25, 2013. ECF No. 4.
February 29, 2016, Petitioner filed a Motion for
Authorization to File a Second or Successive Motion to Vacate
under 28 U.S.C. § 2255. ECF No. 175. On March 1, 2016,
an order was entered transferring the motion to the United
States Court of Appeals for the Fifth Circuit. Petitioner
alleged that he did not have the prerequisite number of prior
convictions to qualify for a career offender enhancement. The
motion was denied on May 18, 2016. 16-10224 (5th Cir.). On
June 14, 2016, Petitioner filed another Motion for
Authorization to File a Second or Successive Motion to
Vacate. Petitioner relied on the Johnson decision
and subsequent Welch decision to support his claim
that the district court improperly utilized an enumerated
offense of robbery to sentence him as a career offender under
§4B1.2 of the sentencing guidelines. Petitioner's
motion was denied on June 27, 2016. 16-10775 (5th Cir.).
support of his § 2241 petition before this Court
Petitioner alleges that his trial counsel failed to
investigate his case and failed to argue that the
government's use of a prior conviction did not constitute
a crime of violence under § 4B1.2(A)(2) of the
sentencing guidelines. More specifically, Petitioner alleges
that robbery in the state of Texas does not fall under the
residual clause. In his amended petition, Petitioner cites
Mathis v. United States, 136 S.Ct. 2243, 195 L.Ed.2d
604 (2016), Descamps v. United States, 136 S.Ct.
2276 (2013) and United States v. Hinkle, 832 F.3d
569 (5th Cir. 2016) for the proposition that his prior state
conviction for aggravated robbery in the state of Texas
cannot be used to establish him as a career offender. For
relief, Petitioner seeks an order remanding his case for
resentencing without the career offender enhancement.
STANDARD OF REVIEW
to the provisions of 28 U.S.C. § 636(b)(1)(B) and this
Court's local rules, the undersigned is authorized to
review such petitions for relief and submit findings and
recommendations to the District Court. This Court is charged
with screening 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 § 2254
Cases in the U.S. District Courts (2014); see also
Rule 1(b) Rules Governing § 2254 Cases in the U.S.
District Courts (2014) (a district court may apply these
rules to a habeas corpus petition not filed pursuant to
§ 2254). As a pro se litigant, Petitioner's
pleadings are accorded liberal construction and held to less
stringent standard than formal pleadings drafted by
attorneys. See Erickson v. Pardus, 551 U.S. 89,
93-94 (2007) (per curiam). However, even under this less
stringent standard, the petition in this case is subject to
summary dismissal. The requirement of liberal construction
does not mean that the Court can ignore a clear failure to
allege facts which set forth a claim cognizable in a federal
district court. See Weller v. Dep't of Social
Servs., 901 F.2d 387 (4th Cir. 1990). As discussed more
fully below, Petitioner clearly is not entitled to relief
under 28 U.S.C. § 2241 and, therefore, no response is
required of Respondent.
seeking to challenge the validity of their convictions or
their sentences are required to proceed under § 2255 in
the district court of conviction. A petition for writ of
habeas corpus, pursuant to § 2241, on the other hand, 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. Examples of an
appropriate use of § 2241 include “actions
challenging the computation of parole, computation of good
time or jail credits, prison disciplinary actions, or