United States District Court, N.D. West Virginia
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO.
8], OVERRULING PETITIONER'S OBJECTIONS [DKT. NOS. 14,
16], AND DENYING AND DISMISSING § 2241 PETITION [DKT.
M. KEELEY UNITED STATES DISTRICT JUDGE
2010, Juan Gutierrez (“Gutierrez”) pleaded guilty
to one count of conspiracy to possess with intent to
distribute a controlled substance, in violation of 21 U.S.C.
§§ 846, 841(a)(1) and 841(b)(1)(B). At that time,
Gutierrez had two prior felony drug convictions - one federal
conviction for possession with intent to distribute marijuana
and one state conviction for possession of cannabis with
intent to sell or deliver. At sentencing, the district court
determined that Gutierrez's prior felony drug convictions
qualified him as a career offender under the Sentencing
Guidelines. Based on a total offense level 31 and a criminal
history category VI, the district court sentenced Gutierrez
to 188 months of imprisonment.
March 8, 2017, Gutierrez filed a pro se Petition for
Habeas Corpus pursuant to 28 U.S.C. § 2241, attacking
the validity of his sentence (Dkt. No. 1). Relying on
Mathis v. United States, 136 S.Ct. 2243 (2016), he
argues that his “state conviction [for]
‘possession with intent to sell or deliver' does
not qualify as a controlled substance offense, ” and
therefore that the district court incorrectly categorized him
as a career offender under the Sentencing Guidelines (Dkt.
No. 1 at 5-6). Pursuant to 28 U.S.C. § 636 and the
local rules, the Court referred this matter to the Honorable
James E. Seibert, United States Magistrate Judge, for initial
screening and a Report and Recommendation
Judge Seibert's R&R recommended that the Court
dismiss the petition for lack of jurisdiction because
Gutierrez had not demonstrated that § 2255 is an
inadequate or ineffective remedy by which to attack the
validity of his selection (Dkt. No. 8). Specifically, the
R&R concluded that Gutierrez had not established his
entitlement to the application of § 2255's savings
clause pursuant to the test articulated in In re
Jones, 226 F.3d 328 (4th Cir. 2000). Id. at 5-6
(citing Rice v. Rivera, 617 F.3d 802, 807 (4th Cir.
objects to the R&R's determination that, because the
petition does not fall within the scope of the savings
clause, it must be dismissed for lack of jurisdiction (Dkt.
Nos. 14, 16). He specifically objects to the R&R's
conclusion that the Supreme Court's decision in
Mathis does not support the application of §
2255's savings clause in this case (Dkt. Nos. 14 at 3,
6-7; 16 at 3-5). In his amended objections, he asserts that
the Fourth Circuit's recent decision in United States
v. Wheeler, 886 F.3d 415 (4th Cir. 2018), entitles him
to proceed under § 2241 (Dkt. No. 16 at 2-2, 5-6).
de novo review, the Court concludes that
Gutierrez's objections lack merit. Where, as here, a
petitioner seeks to attack the imposition of his sentence
rather than its execution, he may only seek a writ of habeas
corpus pursuant to § 2241 by demonstrating that §
2255 is “inadequate or ineffective to test the legality
of . . . detention.” 28 U.S.C. § 2255(e) (the
“savings clause”); see also In re Jones,
226 F.3d at 332.
Wheeler, the Fourth Circuit held that § 2255 is
inadequate or ineffective to test the legality of a sentence
(1) at the time of sentencing, settled law of this circuit or
the Supreme Court established the legality of the sentence;
(2) subsequent to the prisoner's direct appeal and first
§ 2255 motion, the aforementioned settled substantive
law changed and was deemed to apply retroactively on
collateral review; (3) the prisoner is unable to meet the
gatekeeping provisions of § 2255(h)(2) for second or
successive motions; and (4) due to this retroactive change,
the sentence now presents an error sufficiently grave to be
deemed a fundamental defect.
886 F.3d at 429 (citing In re Jones, 226 F.3d at
Wheeler precludes any relief under § 2255's
savings clause. Even assuming Gutierrez could satisfy the
first and third prongs of Wheeler, he has not
established that, subsequent to his first § 2255 motion,
the “settled substantive law [that established the
legality of his sentence] changed and was deemed to apply
retroactively on collateral review, ” as required by
the second prong. Id.
construed, Gutierrez appears to assert that, pursuant to
Mathis, there has been an intervening change in
substantive law that retroactively affects his
case. Contrary to Gutierrez's argument,
district courts in this Circuit and elsewhere have held that
Mathis does not represent a substantive change in
the law. See, e.g., Stewart v. United
States, No. CR ELH-13-262, 2017 WL 2361089, at *5 (D.
Md. May 31, 2017) (recognizing that Mathis did not
announce a new substantive rule applicable to cases on
collateral review); Dimott v. United States, Nos.
2:06-cr-26-GZS, 2:16-cv-347-GZS, 2016 WL 6068114, at *3 (D.
Maine Oct. 14, 2016) (“The Supreme Court made clear
that it was not breaking new ground in Mathis . . .
.”); Blackwell v. United States, No.
4:10-cr-00012, 2016 WL 5849384, at *5 (W.D. Va.Oct. 6, 2016)
(“By the Court's own admission, Mathis
does not set a new rule.”).
than changing settled substantive law in Mathis, the
Supreme Court reaffirmed precedent in existence well before