United States District Court, N.D. West Virginia
SEAN L. HAGINS, Petitioner,
S. KALLIS, Warden, Respondent.
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE, OVERRULING
PETITIONER'S OBJECTIONS AND DISMISSING CIVIL ACTION
FREDERICK P. STAMP, JR., UNITED STATES DISTRICT JUDGE
pro se petitioner filed a petition for habeas
corpus under 28 U.S.C. § 2241. ECF Nos. 1, 16. In the
petition, the petitioner contends that his enhanced sentence
as a career offender is invalid because: (1) his two prior
convictions for possession with intent to distribute within
1000 feet of a school no longer qualify as predicate offenses
(ECF Nos. 16 at 5, 16-1 at 6-9); (2) acquitted conduct cannot
support a sentencing enhancement (ECF Nos. 16 at 5, 16-1 at
6, 9-11); and (3) the Court's enhancement based on
petitioner's alleged purchase of weapons in exchange for
money and drugs was improper because the petitioner must have
possessed the weapon in connection to or with another felony,
and because “there is no evidence that the amount of
drugs was enough to count as a felony” (ECF No. 16-1 at
11). The petitioner relies on the following cases: Mathis
v. United States, 136 S.Ct. 2243 (2016), Cruz v.
Att'y Gen., 452 F.3d 240 (3d Cir. 2006), United
States v. Wheeler, 886 F.3d 415 (4th Cir. 2018),
Nelson v. Colorado, 137 S.Ct. 1249 (2017),
United States v. Watts, 519 U.S. 148 (1997),
United States v. Andrade-Calderon, 638 Fed.Appx. 622
(9th Cir. 2016), Render v. Holder, 764 F.3d 1077
(9th Cir. 2014), James v. United States, 550 U.S.
192 (2007), Johnson v. United States, 135 S.Ct. 2551
(2015), Johnson v. Mississippi, 486 U.S. 578 (1988),
United States v. Amerson, No. 17-1713 (6th Cir.
2018), I.N.S. v. St. Cyr., 533 U.S. 289 (2001), and
Boumediene v. Bush, 533 U.S. 723 (2008).
Specifically, the petitioner argues that § 2255 is
inadequate or ineffective to test the legality of his
detention because the laws pertaining to his unlawful
sentence and conviction were adverse to him at the time he
filed his first § 2255 motion. ECF No. 16 at 9. The
petitioner also suggests that laws have been clarified and
have authorized habeas corpus for petitioners who had no
earlier opportunity to challenge their conviction or sentence
that a change in law may negate. Id. at 9, ECF No.
16-1 at 5-6. The petitioner requests that this Court grant
the writ and issue an immediate hearing, resentencing him
without the enhancements based on two prior convictions that
can no longer qualify as predicates for a sentencing
enhancement, and release him from custody “immediately
to time served.” ECF Nos. 16 at 8, 16-1 at 12.
States Magistrate Judge James E. Seibert entered a report and
recommendation, in which he recommends that the § 2241
petition be denied and dismissed without prejudice. ECF No.
22 at 12.
petitioner then filed objections. ECF No. 24. In his
objections, the petitioner first argues that the magistrate
judge erred by failing to apply the savings clause to the
petitioner's sentence. ECF No. 24 at 1-2. Second, the
petitioner argues that the magistrate judge misapplied the
law to the facts of his case. Id. at 2. Third, the
petitioner argues that the magistrate judge erred by
concluding that acquitted conduct may still be used in
sentencing calculations as long as calculations are proven by
preponderance of the evidence rather than beyond a reasonable
doubt. Id. at 2, 8.
reasons set forth below, the report and recommendation of the
magistrate judge (ECF No. 22) is affirmed and adopted, and
the petitioner's objections (ECF No. 24) are overruled.
28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of any portion of the magistrate
judge's recommendation to which an objection is timely
made. Because the petitioner filed objections to the report
and recommendation, the magistrate judge's recommendation
will be reviewed de novo as to those findings to
which the petitioner objected. As to those findings to which
objections were not filed, all findings and recommendations
will be upheld unless they are “clearly erroneous or
contrary to law.” 28 U.S.C. § 636(b)(1)(A). As the
Supreme Court of the United States stated in United
States v. United States Gypsum Co., “a finding is
‘clearly erroneous' when although there is evidence
to support it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed.” 333 U.S. 364, 395 (1948). Because the
petitioner filed objections to the report and recommendation,
the magistrate judge's recommendation will be reviewed
the magistrate judge correctly found that since the
petitioner's claims relate to the execution of a sentence
or calculation of a sentence, they are properly contested
either on direct appeal or in a 28 U.S.C. § 2255
proceeding; thus, the magistrate judge treated
petitioner's petition as a § 2255 petition.
Id. at 9. Further, the magistrate judge
appropriately found that the petitioner is not entitled to
application of the savings clause. Id. at 9.
Specifically, since the petitioner is not challenging his
conviction, the Jones test does not apply and
Wheeler's four-prong test applies. As to the first
prong, at the time of sentencing, settled law established the
legality of the sentence imposed. However, petitioner cannot
meet the second prong of the Wheeler test, because
any change to settled law which established the legality of
his sentence has not been deemed to apply retroactively to
cases on collateral review. Thus, the magistrate judge
correctly concluded that the third and fourth parts to the
test do not need to be considered, and that the petitioner is
not entitled to application of the savings clause.
the magistrate judge properly found that the petitioner's
reliance on Johnson, Mathis,
Descamps, and Nelson is misplaced.
Id. at 10-11. As the magistrate judge explains, in
Johnson v. United States, 135 S.Ct. 2251,
2555-57(2015), the Supreme Court held that the residual
clause of 18 U.S.C. § 924 of the Armed Career Criminal
Act (“ACCA”) as unconstitutionally vague. ECF No.
22 at 10. The only portion of the ACCA that was invalidated
was the section defining “violent felony” as any
crime punishable by more than one year in prison “or
otherwise involves conduct that presents a serious potential
risk of physical injury to another . . .” Id.
(citing 18 U.S.C. § 924(e)(2)(B)(ii)). Since the
petitioner was not sentenced under the ACCA, he could not
raise an argument regarding the invalidity of the residual
clause, and is not entitled to relief under Johnson.
Moreover, Mathis and Descamps are not
applied retroactively in this Circuit. See Stewart v.
United States, No. Elh-17-1408. 2017 WL 2361809, at *5
(D. Md. May 31, 2017); Brandon v. Wilson, No.
3:16cv142, 2017 WL 707497, at *4 (N.D. W.Va. Jan. 30, 2017).
Lastly, the magistrate judge correctly indicated there is no
indication that Watts has been overruled by other
cases, including Nelson. ECF No. 22 at 11.
this Court agrees with the magistrate judge's conclusion.
Specifically, the magistrate judge correctly found that the
petitioner is unable to satisfy the second prong of §
2255's savings clause to seek relief under § 2241.
Id. When a federal prisoner brings a § 2241
petition that does not fall within the scope of the savings
clause, the district court must dismiss the unauthorized
habeas petition for lack of jurisdiction. Therefore, this
Court adopts and affirms the report and recommendation in its
entirety, and the petitioner's § 2241 petition is
denied and dismissed without prejudice.
reasons discussed above, the report and recommendation of the
magistrate judge (ECF No. 22) is AFFIRMED and ADOPTED and the
petitioner's objections (ECF No. 24) are OVERRULED. It is
further ORDERED that this civil action be ...