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Walker v. Kassell

United States District Court, N.D. West Virginia

December 5, 2017

MISCHA WALKER, Petitioner,
v.
S. KASSELL, Warden, Respondent.

          Judge, Bailey

          REPORT AND RECOMMENDATION

          MICHAEL J. ALOI, UNITED STATES MAGISTRATE JUDGE

         I. Background

         On 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.

         This matter is now pending before the undersigned for a Report and Recommendation pursuant to LR PL P 2.

         II. Facts[1]

         On 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 One.[2] 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 & 27.

         The 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. 2013) (unpublished).

         Thereafter, 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.

         On June 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.

         On 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.

         III. Claims Presented

         A. The Petition

         In his 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.

         For relief, the Petitioner seeks to have his sentence vacated and to be resentenced “to corrected base ...


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