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Fisher v. Rickard

United States District Court, S.D. West Virginia, Bluefield

February 16, 2018

ISAIAH FISHER, Petitioner,
v.
BARBARA RICKARD, WARDEN, Respondent.

          PROPOSED FINDINGS AND RECOMMENDATION

          Dwane L. Tinsley, United States Magistrate Judge

         Pending 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 8, 2028.

         This 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.

         BACKGROUND AND PETITIONER'S CLAIM

         A. The petitioner's conviction and direct appeal proceedings.

         On July 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.[1] Sentencing Mem., United States v. Fisher, No. 3:15-cr-00039-RLM-CAN, ECF No. 39.

         Fisher's 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).

         On 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.[2] 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.[3] 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.

         B. Petitioner's prior post-conviction filings.

         On 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 offender guideline.

         On May 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).

         C. Fisher's prior section 2241 petition.

         On 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).[4] 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.

         D. Petitioner's ...


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