United States District Court, N.D. West Virginia
IVAN A. COPELAND, Petitioner,
S. KASSELL, Warden, Respondent.
REPORT AND RECOMMENDATION
MICHAEL J. ALOI UNITED STATES MAGISTRATE JUDGE
15, 2017, Ivan A. Copeland (“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 imposed in the United States District Court
for the Eastern District of Virginia. ECF No. 1. Along with
his petition, Copeland filed a motion to exceed the page
limits and a Motion under Section 2241 Through 2255(e)
Savings Clause. ECF Nos. 2 & 3. Pursuant to a Notice of
Deficient Pleading, on May 19, 2017, Petitioner paid the
$5.00 filing fee. ECF No. 6. By Order entered on May 22,
2017, the undersigned construed Petitioner's Motion under
Section 2241 Through 2255(e) Savings Clause as a memorandum
in support of his § 2241 petition and granted the motion
to exceed the page limits. ECF No. 8.
same day, 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. 9. On June 2, 2017, the Respondent filed
a Motion to Dismiss and Response to Order to Show Cause with
a memorandum in support. ECF Nos. 11 & 12. Because
Petitioner was proceeding pro se, on June 12, 2017,
a Roseboro Notice was issued. ECF No. 13. On June
16, 2017, Petitioner filed his response in opposition. ECF
matter is now pending before the undersigned for a Report and
Recommendation pursuant to LR PL P 2.
11, 2013, in the United States District Court for the Eastern
District of Virginia, a Criminal Complaint was filed against
Petitioner in Case No. 2:13cr91. ECF No. 1. Petitioner was
arrested on June 20, 2013. ECF No. 5. On July 10, 2013, the
grand jury returned an Indictment against Petitioner,
charging him with three counts of Distribution and Possession
with Intent to Distribute Cocaine Base, in violation of 21
U.S.C. § 841(a)(1). ECF No. 12.
August 21, 2013, pursuant to a written plea agreement
containing a waiver of the right to appeal, Petitioner pled
guilty to Count Three, Possession with Intent to Distribute
127.1 Grams of Cocaine Base. See ECF Nos. 19 &
December 2, 2013, over the Government's objection, the
court granted Petitioner's motion for a downward
departure from the advisory guidelines imprisonment range of
262 - 327 months, and sentenced Petitioner to 239 months'
imprisonment as a career offender under § 4B1.1(a) of
the United States Sentencing Guidelines (“USSG”)
and to 8 years of supervised release on Count Three, and
dismissed the remaining charges. ECF Nos. 33 & 35.
did not file a direct appeal.
October 20, 2014, Petitioner filed his first Motion to Vacate
under 28 U.S.C. § 2255, contending that counsel was
ineffective for failing to object to his USSG § 4B1.1
career offender enhanced sentence. ECF No. 39. By Order
entered January 6, 2015, the § 2255 motion was denied as
meritless. ECF No. 40.
February 5, 2015, Petitioner moved for reconsideration [ECF
No. 42], advancing the same argument he made in his first
§ 2255 motion: that counsel was ineffective for failing
to object to his USSG § 4B1.1 career offender enhanced
sentence. Four days later, on February 9, 2015, he filed a
notice of appeal of the Order denying his § 2255 motion.
ECF No. 44.
Order entered in the sentencing court on March 30, 2015, the
motion for reconsideration was construed as a second or
successive Motion to Vacate under § 2255 and denied. ECF
August 24, 2015, by unpublished per curiam opinion,
the Fourth Circuit Court of Appeals denied Petitioner's
motion for a certificate of appealability on the appeal of
the denial of the first § 2255 motion and dismissed the
appeal. ECF No. 54.
October 29, 2015, Petitioner filed a notice of appeal of the
sentencing court's Order denying his motion to reconsider
its decision on his § 2255 motion (construed by the
sentencing court as a second or successive § 2255
motion). ECF No. 57. On March 17, 2016, by unpublished
per curiam opinion, the Fourth Circuit Court of
Appeals dismissed the appeal as untimely filed. ECF No. 60.
Copeland's petition for rehearing and rehearing en
banc was denied on June 14, 2016. ECF No. 63.
27, 2016, Petitioner filed a motion pursuant to 28 U.S.C.
§ 2244 in the Fourth Circuit Court of Appeals, seeking
leave to file a second or successive § 2255 motion
pursuant to the Supreme Court's decision in Johnson
v. United States,  challenging whether his attempted
murder conviction was a crime of violence. On June 30, 2016,
pro se, Petitioner filed what was in effect his
third Motion to Vacate under 28 U.S.C. § 2255 in the
sentencing court, along with a motion to stay it until the
Fourth Circuit decided his pending § 2244 motion,
arguing that he was entitled to be resentenced, because his
career offender classification was unconstitutional in light
of the Supreme Court's ruling in Johnson.
6, 2016, the Fourth Circuit granted the § 2244 motion.
ECF No. 67.
on August 12, 2016, Copeland filed an amended pro se
version of his (third) § 2255 motion. ECF No. 69. On
September 12, 2016, through counsel, Petitioner filed a
memorandum in support. ECF No. 71. By Order entered March 7,
2017, the Eastern District of Virginia denied the Motion to
Vacate, finding that that in Beckles v. United
States,  the Supreme Court held that the Federal
Sentencing Guidelines, including § 4B1.2(a)'s
residual clause, are not subject to vagueness challenges, and
thus Petitioner's § 2255 motion was without merit.
ECF No. 72. Petitioner did not appeal.