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Clay v. Saad

United States District Court, N.D. West Virginia

December 18, 2017

SAMUEL LEWACO CLAY, Petitioner,
v.
JENNIFER SAAD, Warden, Respondent.

          Judge, Keeley

          REPORT AND RECOMMENDATION

          MICHAEL J. ALOI, UNITED STATES MAGISTRATE JUDGE

         I. Background

         On June 20, 2017, Samuel Lewaco Clay (“Petitioner”), an inmate at FCI Gilmer in Glenville, 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 Eastern District of Kentucky. ECF No. 1. Along with his petition, Clay filed a Motion to Correct Sentence Pursuant to Actual Innocence of Being a Career Criminal. ECF No. 2. Pursuant to a Notice of Deficient Pleading, on July 7, 2017, Petitioner paid the $5.00 filing fee. ECF No. 6. On July 10, 2017, the undersigned 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 August 3, 2017, the Respondent filed a Motion to Dismiss and Response to Order to Show Cause with a memorandum in support. ECF Nos. 9 & 10. Because Petitioner was proceeding pro se, on August 9, 2017, a Roseboro Notice was issued; on August 21, 2016, Petitioner filed his response in opposition. ECF Nos. 12 & 14. By Order entered on December 13, 207, Petitioner's June 20, 2017 Motion to Correct Sentence Pursuant to Actual Innocence of Being a Career Criminal was construed as a memorandum in support and the Clerk was directed to modify its docket entry to reflect the same. ECF No. 16.

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

         II. Facts[1]

         On June 1, 2006, in the Eastern District of Kentucky, Petitioner was charged in three counts of a three-count indictment in Count One with possession with intent to distribute a mixture or substance containing a detectable amount of cocaine base (crack cocaine), in violation of 21 U.S.C. § 841(a)(1); in Count Two with possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and in Count Three with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); the indictment also contained two counts of forfeitures, for currency, the firearm, and ammunition. ECF No. 1. On July 6, 2006, a superseding indictment was entered, charging Petitioner in Count One-S with possessing with intent to distribute five grams or more of a mixture or substance containing a detectable amount of cocaine base (crack cocaine), in violation of 21 U.S.C. § 841(a)(1); in Count Two-S with possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); and in Count Three-S with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). ECF No. 13. This superseding indictment also contained two counts of forfeitures, for currency, the firearm, and ammunition. Id. On August 16, 2006, after his motion to suppress evidence was denied, conditioned upon his right to appeal the denial of his motion to suppress, Petitioner pled guilty to Count One-S, possession with intent to distribute crack cocaine and to the forfeiture in Count Four. See ECF Nos. 27, 30, & 69 at 1; see also ECF No. 55 at 1. On December 11, 2006, Petitioner was sentenced to 262 months imprisonment as a career offender under § 4B1.1 of the United States Sentencing Guidelines (“USSG”) and to 8 years of supervised release on Count One-S and the remaining charges were dismissed. ECF No. 42. Petitioner appealed the denial of his motion to suppress but on February 4, 2008, by unpublished opinion, the Sixth Circuit Court of Appeals affirmed the district court's judgment. ECF No. 55. Clay's petition to the United States Supreme Court for a writ of certiorari was denied on June 2, 2008. ECF No. 58.

         On June 10, 2009, Petitioner filed his first Motion to Vacate under 28 U.S.C. § 2255, raising claims of counsel's ineffectiveness for advising him to plead guilty instead challenging the indictment and his career offender status; for not adequately challenging the drug amount listed in the presentence investigation report (“PSR”); and for failing to attack the indictment as defective because it did not state the drug amount. ECF No. 63 at 4. On May 13, 2010, a report and recommendation by the magistrate judge recommended that the § 2255 motion be denied as untimely, as barred by Petitioner's plea agreement waiver, and on the merits. ECF No. 69 at 8. By Order entered on January 11, 2011, the R&R was adopted and the § 2255 motion was denied with no certificate of appealability. ECF No. 71.

         On July 2, 2013, Petitioner filed a 18 U.S.C. § 3582 Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offenses. ECF No. 73. It was denied by Order entered July 15, 2013. ECF No. 74. Petitioner's appeal of the same was dismissed on April 15, 2014, by the Sixth Circuit Court of Appeals' Order affirming the district court's judgment. ECF No. 80.

         On December 30, 2014, Petitioner filed another 18 U.S.C. § 3582 Motion to Reduce Sentence, arguing that based upon the Sentencing Commission's recent Amendment 782 to the USSG, he was entitled to be resentenced. ECF No. 82. By Order entered on March 24, 2015, the motion was denied. ECF No. 83.

         On or about June 7, 2013 [see ECF No. 84-1 at 22] Petitioner filed a 28 U.S.C. § 2244 motion with the Sixth Circuit, seeking leave to file a second or successive § 2255 motion pursuant to the Supreme Court's decision in Johnson v. United States, [2] arguing that he no longer qualified as a career offender under § 4B1.1 of the USSG, because post-Johnson, his Kentucky predicate conviction for assault under extreme emotional disturbance did not meet the definition of a “crime of violence.” ECF No. 84-1 at 18. On December 5, 2016, the Sixth Circuit rejected Petitioner's argument, holding that the assault conviction qualified under the section's elements clause, not the residual clause potentially invalidated by Johnson, and denied Petitioner permission to file a second or successive § 2255 motion. ECF No. 86.

         Nonetheless, on January 23, 2017, despite being denied permission to file a second or successive § 2255 motion, Petitioner filed a second § 2255 motion in the sentencing court, again arguing that he no longer qualified as a career offender under § 4B1.1 of the USSG after Johnson v. United States, supra, and Beckles v. United States.[3] On March 3, 2017, the District Court adopted the magistrate judge's earlier R&R and denied and dismissed Plaintiff's motion as second or successive. ECF No. 91.

         III. Contentions of the Parties

         A. The Petition

         In his pending 2241 petition, the Petitioner argues that under the savings clause of 28 U.S.C. § 2255(e), pursuant to the Supreme Court's decision in Mathis v. United States, [4] 136 S.Ct. 2243 (2016), he is entitled to collaterally attack his sentence because he was improperly sentenced as a career offender under USSG 4B1.1, an invalid enhancement and a due process violation, and that he is actually innocent of the same. ECF No. 2 at 8; see also ECF No. 1 at 5 - 6 & 9. Petitioner also makes an unclear argument under Descamps v. United States, [5] arguing that his predicate offense of delivering a controlled substance is broader than the USSG's definition of a controlled substance offense. ECF No. 2 at 9.

         For relief, the Petitioner seeks to be resentenced without the career criminal enhancement. ECF No. 1 at 8.

         B. Respondent's ...


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