United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
MICHAEL J. ALOI, UNITED STATES MAGISTRATE JUDGE
March 30, 2017, Mischa Walker (“Petitioner”), an
inmate at FCI Hazelton in Bruceton Mills, West Virginia,
filed a pro se petition for habeas corpus pursuant
to 28 U.S.C. § 2241 challenging the validity of his
enhanced sentence in the United States District Court for the
District of Maryland. Pursuant to a Notice of Deficient
Pleading, on April 27, 2017, Petitioner paid the $5.00 filing
fee. On June 5, 2017, Magistrate Judge James E. Seibert made
a preliminary review of the petition, determined that summary
dismissal was not warranted, and issued an Order to Show
Cause to the Respondent. ECF No. 7. On June 28, 2017, the
Respondent moved for an extension of time. ECF No. 9. By
Order entered July 5, 2017, Respondent's motion was
granted. ECF No. 10. On July 11, 2017, the Respondent filed a
Motion to Dismiss, or in the Alternative, Motion for Summary
Judgment with a memorandum in support. ECF Nos. 12 & 13.
On July 12, 2017, a Roseboro Notice was issued, and
on July 24, 2107, Petitioner filed his response in
opposition. ECF No. 16. By Order entered on September 15,
2017, this case was reassigned from Magistrate Judge James E.
Seibert to Magistrate Judge Michael J. Aloi.
matter is now pending before the undersigned for a Report and
Recommendation pursuant to LR PL P 2.
April 9, 2012, in the District of Maryland, the Petitioner
was charged in a two count indictment with being a felon in
possession of a firearm, in violation of 18 U.S.C.
§922(g)(1) (Count One) and with illegal possession of an
unregistered firearm, in violation of 26 U.S.C. §
5861(d) (Count Two). ECF No. 8. Through defense counsel, the
Petitioner filed two pretrial motions, seeking to suppress
(1) any tangible evidence seized from the apartment and (2) a
statement he allegedly made while in custody that he had been
smoking PCP an hour before the incident. ECF Nos. 14 &
15. A hearing was set on these motions, but before the
scheduled hearing, Petitioner agreed to plead guilty to Count
Petitioner entered his plea on July 2, 2012, and on October
16, 2012, the district court sentenced the Petitioner to a
within-Guideline sentence of 120 months. ECF Nos. 20 &
Petitioner filed an appeal, arguing that the 120-month
sentence was substantively and procedurally unreasonable.
Rejecting his arguments, the Fourth Circuit affirmed his
conviction and sentence in a per curiam opinion.
United States v. Walker, 523 Fed.Appx. 974 (4th Cir.
Petitioner filed a Motion to Vacate pursuant to 28 U.S.C.
§ 2255, arguing that his trial attorney provided
ineffective assistance of counsel by failing “to
litigate a meritorious Fourth Amendment claim, ” which
failure led him to plead guilty. ECF No. 46-1 at 2. More
specifically, the Petitioner argued that law enforcement
officers violated his rights when they entered his apartment
after arresting him on the front walkway because they
“had no authority to conduct a warantless search
through his home on the basis that it was incident to his
arrest, or on the basis of an unjustified protective
search.” ECF No. 46-1, at 5-6. On July 31, 2015, the
Court entered a Memorandum Opinion denying the
Petitioner's § 2255 motion. ECF No. 54. The
Petitioner did not appeal from this decision.
21, 2016, the Fourth Circuit granted Petitioner leave to file
a second or successive § 2255. ECF No. 58. On June 22,
2016, Petitioner filed a Motion to Vacate seeking relief
under Johnson v. United States, 135 S.Ct. 2551
(2015). ECF No. 59. On December 12, 2016, Petitioner
supplemented his § 2255 Petition, arguing that he was
improperly sentenced as a career offender under the Supreme
Court's decision in Mathis v. United States, 136
S.Ct. 2243 (2016). ECF No. 60. As of the date of this Report
and Recommendation, that § 2255 motion is still pending.
August 22, 2016, Petitioner filed a writ of habeas corpus in
this Court pursuant to 28 U.S.C. § 2241, alleging that
he was actually innocent of his crime, relying on the
decision in Henderson v. United States, 135 S.Ct.
1780 (2015). See No. 5:16cv136-FPS-MJA, ECF No. 1.
This Court denied and dismissed the Petition for failure to
show actual innocence, and thus the failure to meet the
savings clause of § 2255. ECF. Nos. 16 & 19.
Petitioner appealed. On October 19, 2017, in an unpublished
per curiam opinion, the Fourth Circuit affirmed.
Walker v. Saad, 2017 U.S. App. LEXIS 20483 (4th Cir.
2017). Petitioner did not seek further review.
pending 2241 petition, the Petitioner challenges the legality
of the two-level enhancement to his base offense level under
United States Sentencing Guidelines (“USSG”)
§ 2K2.1(a)(3) to his sentence for being a felon in
possession, for “an alleged crime of violence that has
since been deemed not violent.” ECF No. 1 at 5. In
asserting this, Petitioner relies on the decision in
Mathis v. United States, 136 S.Ct. 2243 (2016),
which he contends is “an old rule that is available
under a timely § 2255 . . . therefore . . . [it] is
cognizable under the savings clause in § 2255(e).”
Id. at 3.
relief, the Petitioner seeks to have his sentence vacated and
to be resentenced “to corrected base ...