United States District Court, N.D. West Virginia
ROBERT L. SUMLIN Petitioner,
WARDEN FREDERICK ENTZEL, JR., Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO.
10], OVERRULING PETITIONER'S OBJECTIONS [ECF NO. 12], AND
DENYING AND DISMISSING § 2241 PETITION [ECF NO.
S. KLEEH UNITED STATES DISTRICT JUDGE.
before the Court is Magistrate Judge Michael J. Aloi's
Report and Recommendation (“R&R”) concerning
the Petition for Habeas Corpus Pursuant to § 2241 filed
by pro se petitioner Robert L. Sumlin
(“Petitioner”). For the reasons set forth below,
the Court ADOPTS the R&R. ECF No. 10.
is currently incarcerated at FCI Hazelton. On April 14,
2014, he pled guilty to Counts One and Nine of a superceding
indictment in the United States District Court for the
Southern District of Ohio. ECF No. 95 (S.D.
Ohio). On October 16, 2014, he was sentenced to
288 months in prison and 5 years of supervised release for
Count One, along with 120 months in prison and 3 years of
supervised release for Count Nine, to run concurrently for a
total of 288 months in prison and 5 years of supervised
release. ECF No. 128 (S.D. Ohio), at 3-4.
filed a notice of appeal, and the sole ground he raised was
the reasonableness of his sentence. See ECF No. 153
(S.D. Ohio), at 3. He did not argue ineffective assistance of
counsel or prosecutorial misconduct. Id. The United
States Court of Appeals for the Sixth Circuit dismissed the
appeal based on the waiver of appellate rights in his plea.
Id. Petitioner did not file for a writ of
also filed a motion to vacate pursuant to 28 U.S.C. §
2255 in the Southern District of Ohio. ECF No. 154 (S.D.
Ohio). He alleged (1) that the offense level he reached under
the sentencing guidelines was improperly enhanced by finding
the wrong amount of cocaine was involved in the conspiracy
and that he was a member of the conspiracy; and (2) that he
made a proffer he believed should have resulted in a 3-point
reduction in his offense level under the guidelines.
Id. at 13-14. On August 29, 2016, the Southern
District of Ohio dismissed the motion with prejudice. ECF No.
156 (S.D. Ohio).
November 22, 2017, Petitioner filed his 28 U.S.C. § 2241
petition in this Court. ECF No. 1. On September 4, 2018, he
filed a mandamus action in the United States Court of Appeals
for the Fourth Circuit for undue delay. ECF No. 8. On
December 1, 2018, the case was transferred from United States
District Judge Irene M. Keeley to United States District
Judge Thomas S. Kleeh. ECF No. 9.
§ 2241 petition, Petitioner asserts (A) ineffective
assistance of counsel during his plea agreement bargaining;
(B) ineffective assistance of counsel during sentencing
preparation; (C) prosecutorial misconduct due to his
unawareness of the facts to be used against him; and (D)
prosecutorial misconduct due to not receiving the benefit
from his proffer that he believed he would receive. ECF No.
1, at 5-6. In his petition, he claims that he already
asserted these grounds in his appeal to the Sixth Circuit and
in his § 2255 petition. Id. at 3. Petitioner
requests that the Court vacate his guilty plea and allow him
to plea anew or, in the alternative, reduce his sentence.
Id. at 8.
petition for a writ of habeas corpus filed pursuant to 28
U.S.C. § 2241 is intended to address the execution of a
sentence, not its validity. In re Vial, 115 F.3d
1192, 1194 n.5 (4th Cir. 1997). Prisoners who wish to
challenge the validity of their convictions or sentences are
required to do so pursuant to 28 U.S.C. § 2255.
See 28 U.S.C. § 2255. Nonetheless, § 2255
provides a “savings clause” that allows a
prisoner to challenge the validity of his conviction or
sentence under § 2241 if he can show that § 2255 is
“inadequate or ineffective to test the legality of his
detention.” Id. § 2255(e).
Fourth Circuit has established the following requirements to
show that a § 2255 petition is inadequate or ineffective
to test the legality of a conviction:
(1) at the time of conviction, settled law of this circuit or
of the Supreme Court established the legality of the
(2) subsequent to the prisoner's direct appeal and first
§ 2255 motion, the substantive law changed such that the
conduct of which the prison was convicted is deemed not to be
(3) the prisoner cannot satisfy the gatekeeping provisions of
§ 2255 because the new rule is not one of ...