United States District Court, S.D. West Virginia, Bluefield
PROPOSED FINDINGS AND RECOMMENDATION
L. Tinsley, United States Magistrate Judge
before the court is the petitioner, Isaiah Fisher's
(hereinafter “Fisher”) Letter-Form Petition for
Writ of Habeas Corpus under 28 U.S.C. § 2241 (ECF No.
1). Fisher is presently incarcerated at FCI McDowell in
Welch, West Virginia. His projected release date is December
matter is assigned to the Honorable David A. Faber, United
States District Judge, and it is referred to the undersigned
United States Magistrate Judge for submission of proposed
findings and a recommendation for disposition, pursuant to 28
U.S.C. § 636(b)(1)(B). For the reasons stated herein, it
is respectfully RECOMMENDED that the
presiding District Judge DISMISS
Fisher's section 2241 petition (ECF No. 1) and this civil
action for lack of jurisdiction.
AND PETITIONER'S CLAIM
The petitioner's conviction and direct appeal
7, 2015, Fisher pled guilty, pursuant to a written plea
agreement, to one count of bank robbery in violation of 18
U.S.C. § 2113(a) in the United States District Court for
the Northern District of Indiana. United States v.
Fisher, No. 3:15-cr-00039-RLM-CAN, ECF No. 26 (N.D. Ind.
July 7, 2015) (hereinafter “the second bank
robbery”). At the time of the second bank robbery in
2015, Fisher was serving a three-year term of supervised
release, having previously been convicted of bank robbery in
2008 by a jury in the United States District Court for the
Northern District of Indiana. J. in Criminal Case, United
States v. Fisher, No. 3:07-cr-46-RLM-CAN, ECF No. 60
(N.D. Ind. July 10, 2008) (hereinafter “the first bank
robbery”). According to the Indiana district
court's Sentencing Memorandum in the second bank robbery
proceeding, Fisher committed the first bank robbery while on
supervision for a prior burglary conviction. Sentencing Mem.,
United States v. Fisher, No. 3:15-cr-00039-RLM-CAN,
ECF No. 39.
plea agreement in the second bank robbery proceeding included
a waiver provision stating, in pertinent part, “I
expressly waive my right to appeal or to contest my
conviction and all components of my sentence or the manner in
which my conviction and sentence was determined or imposed,
to any Court on any ground other than a claim of ineffective
assistance of counsel . . . .” Id., Plea
Agreement, ECF No. 23 at 5, ¶ 9(h).
October 13, 2015, Fisher was sentenced to serve 188 months of
imprisonment, followed by a three-year term of supervised
release. Id., J. in a Criminal Case, ECF No. 41.
Under the United States Sentencing Guidelines, Fisher's
guideline calculation would have resulted in a total adjusted
guideline level of 23, with a criminal history category of
IV. Id., Sentencing Mem., ECF No. 39 at 1. However,
the district court found that Fisher qualified for a
guideline enhancement under USSG § 4B1.1 for being a
career offender. Therefore, his sentencing guideline level
was increased to a level 32, but then reduced to a 29 for
acceptance of responsibility, with a criminal history
category of VI, resulting in a sentencing guideline range of
151-188 months. He was sentenced to 188 months of
imprisonment, followed by a three-year term of supervised
release. Id., J. in a Criminal Case, ECF No. 41 at
2-3. Fisher did not appeal his Judgment to the United States
Court of Appeals for the Seventh Circuit.
Petitioner's prior post-conviction filings.
March 31, 2016, Fisher filed a Motion to Vacate, Set Aside or
Correct Sentence under 28 U.S.C. § 2255 in the United
States District Court for the Northern District of Indiana.
Id., Motion to Vacate Sentence, ECF No. 46 (also
docketed as Fisher v. United States, No.
3:16-cv-00197-RLM-CAN (hereinafter “the Indiana civil
case”)). In the section 2255 motion, Fisher contended
that his prior convictions for burglary and robbery
didn't qualify as crimes of violence for use as predicate
offenses under the career offender guideline in light of the
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015), and that his attorney
provided ineffective assistance of counsel when he failed to
object to the enhancement of his sentence under the career
4, 2016, the United States District Court for the Northern
District of Indiana dismissed the section 2255 motion,
finding that Fisher's Johnson claim was barred
by the waiver provision of his plea agreement and that he
could not prevail on his claim of ineffective assistance of
counsel. Id., Opinion and Order, ECF No. 47 (also
docketed as ECF No. 1 in the Indiana civil case). Fisher has
moved for reconsideration of this ruling in the Indiana
district court. Id., ECF Nos. 54 and 57 (also
docketed as ECF No. 5 in the Indiana civil case). Fisher has
also twice been denied authorization to file a second or
successive section 2255 motion by the United States Court of
Appeals for the Seventh Circuit. See Order,
Fisher v. United States, No. 16-2620 (7th
Cir. July 21, 2016); Order, Fisher v. United States,
No. 17-2313 (7th Cir. July 6, 2017).
Fisher's prior section 2241 petition.
September 19, 2016, while incarcerated at USP Big Sandy in
Inez, Kentucky, Fisher filed a Petition for a Writ of Habeas
Corpus under 28 U.S.C. § 2241 in the United States
District Court for the Eastern District of Kentucky, in which
he re-asserted a claim under Johnson, supra, and
further asserted that his Indiana burglary offense does not
qualify as a predicate offense for the career offender
enhancement in light of the Supreme Court's decisions in
United States v. Descamps, 133 S.Ct. 2276 (2013) and
Mathis v. United States, 136 S.Ct. 2243
(2016). Petition, Fisher v. Kizziah, No.
7:16-cv-00203-KKC, ECF No. 1 (E.D. Ky. Sept. 19, 2016). On
July 17, 2017, the Kentucky district court denied
Fisher's section 2241 petition, finding that Fisher could
not use the savings clause of 28 U.S.C. § 2255(e) to
raise his claims in a section 2241 proceeding. Id.,
Mem. Opinion and Order, ECF No. 18.