United States District Court, N.D. West Virginia
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO.
17], GRANTING RESPONDENT'S MOTION TO DISMISS [DKT. NO.
9], AND DENYING AND DISMISSING PETITION WITHOUT PREJUDICE
[DKT. NO. 1]
M. KEELEY UNITED STATES DISTRICT JUDGE
August 16, 2006, the pro se petitioner, Samuel
Lewaco Clay (“Clay”), pleaded guilty to
possession with intent to distribute crack cocaine in the
Eastern District of Kentucky. At his sentencing hearing on
December 11, 2006, the district court classified Clay as a
career offender under United States Sentencing Guideline
(“U.S.S.G.”) § 4B1.1 and sentenced him to
262 months of incarceration. Since that time, Clay has
unsuccessfully attacked his conviction and sentence by direct
appeal, a motion pursuant to 28 U.S.C. § 2255, two
motions pursuant to 18 U.S.C. § 3582, and a motion to
file a second or successive § 2255 petition based on
Johnson v. United States, 135 S.Ct. 2551 (2015).
Clay is presently incarcerated at Federal Correctional
20, 2017, Clay filed the pending Petition for Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (“Petition”)
(Dkt. No. 1). His argument is two-fold. First, Clay argues
that his due process rights were violated when his sentencing
court improperly applied the career offender enhancement.
Id. at 6. Second, he argues that, after the Supreme
Court's decision in Mathis v. United States, 136
S.Ct. 2243 (2016), his prior convictions in Kentucky no
longer qualify as predicate controlled substance offenses,
thus rendering him “actually innocent” of the
career offender enhancement (Dkt. No. 1 at 1, 8). Pursuant to
28 U.S.C. § 636 and the local rules, the Court referred
the Petition to the Honorable Michael J. Aloi, United States
Magistrate Judge, for initial review.
respondent, Warden Jennifer Saad (“Warden Saad”),
moved to dismiss the Petition on August 3, 2017 (Dkt. Nos. 9;
10). In a Report and Recommendation (“R&R”)
entered on December 18, 2017, Magistrate Judge Aloi
recommended that the Court grant Warden Saad's motion and
deny and dismiss the Petition without prejudice (Dkt. No.
17). He reasoned that Clay cannot utilize § 2241, rather
than § 2255, to attack his sentence because the conduct
for which he was convicted remains a criminal offense.
Id. at 11-12.
January 8, 2018, Clay filed timely objections to the R&R
(Dkt. No. 20). In his objections, Clay summarizes the Supreme
Court's decision in Mathis; argues that the
Court should apply a Sixth Circuit case regarding the scope
of § 2241, Hill v. Masters, 836 F.3d 591 (6th
Cir. 2016); and asks the Court to “provide him guides
as to the proper vehicle in the matter and or grant him a
(90) day stay” for the purpose of obtaining counsel
(Dkt. No. 20).
reviewing a magistrate judge's R&R, the Court must
review de novo only the portions to which an
objection has been timely made. 28 U.S.C. §
636(b)(1)(C). On the other hand, “the Court may adopt,
without explanation, any of the magistrate judge's
recommendations to which the prisoner does not object.”
Dellacirprete v. Gutierrez, 479 F.Supp.2d 600,
603-04 (N.D. W.Va. 2007) (citing Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983)). Courts will uphold those
portions of a recommendation to which no objection has been
made unless they are “clearly erroneous.” See
Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005). Accordingly, the Court will
review de novo those portions of the R&R to
which Clay has objected, and review for clear error the
remainder of the R&R. For the following reasons, the
Court concludes that Clay's objections are without merit.
outlined in the R&R, it is well established that
challenges to sentence validity, such as Clay's Petition,
are properly brought pursuant to 28 U.S.C. § 2255.
Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010);
In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997).
Only in limited circumstances, when § 2255 is an
“inadequate or ineffective remedy, ” §
2255's savings clause permits petitioners to bring a
collateral attack pursuant to § 2241. In re
Vial, 115 F.3d at 1194 n.5; In re Jones, 226
F.3d 328, 333 (4th Cir. 2000). In the Fourth Circuit, a
petitioner may establish “that § 2255 is
inadequate or ineffective to test the legality of a
conviction” if he can prove:
(1) at the time of conviction, settled law of this circuit or
the Supreme Court established the legality of the conviction;
(2) subsequent to the prisoner's direct appeal and first
§ 2255 motion, the substantive law changed such that the
conduct of which the prisoner was convicted is deemed not to
be criminal; and (3) the prisoner cannot satisfy the
gatekeeping provisions of § 2255 because the new rule is
not one of constitutional law.
In re Jones, 226 F.3d at 333-34. Essentially, a
prisoner must have “had no opportunity to utilize a
§ 2255 motion to take advantage of a change in the
applicable law.” Rice, 617 F.3d at 807.
as Magistrate Judge Aloi reasoned, Clay simply has not
established that § 2255 is inadequate or ineffective
because he has not met the requirements articulated in In
re Jones. In particular, Clay has not even attempted to
demonstrate that the conduct for which he was convicted -
possession with intent to distribute crack cocaine - is no
longer criminal (Dkt. No. 17 at 11-12). Clay merely
challenges the sentencing court's application of U.S.S.G.
§ 4B1.1, the career offender enhancement.
“[W]hether or not the Petitioner's sentencing
enhancement is valid, ” however, “he has not
demonstrated that a motion under § 2255 is inadequate or
ineffective to assert his claims, ” and thus cannot
utilize § 2241. Brandon v. Wilson, No.
3:16cv142, 2017 WL 707490, at *1 (N. D.W.Va. Feb. 22, 2017),
affirmed as modified, 699 F. App'x 283 (4th Cir.
several courts of appeals, including the circuit in which
Clay was convicted, have allowed certain sentences to be
challenged pursuant to § 2241, see Hill 836
F.3d 591, the R&R properly concluded that the Petition is
governed by the law of the Fourth Circuit. Moreover, even if
the Court were to apply the “narrow” exception
articulated by the Sixth Circuit in Hill, Clay still
would not be entitled to attack his sentencing enhancement
under § 2241 because he was sentenced after the Supreme
Court's decision in United States v. Booker
rendered the guidelines advisory. See Pittman v.
Quintana, No. 16-6857, 2017 WL 6759113, at *2 (6th Cir.
Sept. 18, 2017) (quoting Hill, 836 F.3d at 599-600).
because Clay clearly cannot utilize § 2241 to challenge
his sentence, staying this case for the purpose of permitting
Clay to retain counsel would be futile. Therefore, upon
review of the entire record, the Court:
ADOPTS the R&R (Dkt. No. 17);
OVERRULES Clay's ...