United States District Court, N.D. West Virginia, Martinsburg
REPORT AND RECOMMENDATION
W. TRUMBLE UNITED STATES MAGISTRATE JUDGE
March 1, 2019, the pro se Petitioner, a federal
inmate housed at Federal Correctional Institution
(“FCI”) Hazelton, filed a Petition for Habeas
Corpus Pursuant to 28 U.S.C. § 2241, challenging the
validity of his sentence imposed in the District Court of
North Dakota, Eastern Division. ECF No. 1. Attached to the
petition was a four-page memorandum of law in support
thereof. ECF No. 1-1.
matter is pending before the undersigned for an initial
review and Report and Recommendation pursuant to Local Rule
of Prisoner Litigation Procedure (“LR PL P”) 2
and 28 U.S.C. § 1915A.
FACTUAL AND PROCEDURAL HISTORY
Conviction and Sentence
April 21, 2016, in the District of North Dakota, Eastern
Division, a three- count superseding indictment was returned
against Petitioner in 3:15-CR-80. ECF No. 29. On April 4,
2016, the Government filed an Information to Establish Prior
Convictions for Enhanced Sentence Pursuant to 21 U.S.C.
§ 851(a)(1), which provided background on two prior
convictions “to enhance the minimum mandatory sentence
applicable” under 21 U.S.C. § 841(b)(1), “if
the defendant [was] convicted or plead[ ] guilty.” ECF
No. 26 at 1. On December 5, 2016, pursuant to a written plea
agreement, Petitioner entered a plea of guilty to Possession
of a Firearm in Furtherance of a Drug Trafficking Crime, in
violation of 18 U.S.C. §§ 2 and 924(c)(1)(A), and
to Conspiracy to Possess with Intent to Distribute and
Distribute a Controlled Substance, in violation of 21 U.S.C.
§§ 841(a)(1), 846 and 18 U.S.C. § 2, as
charged in Counts 2 and 3 of the Superseding Indictment,
respectively. ECF Nos. 29, 44-46.
February 23, 2017, Petitioner was sentenced to 228 months
imprisonment. ECF No. 60 at 3. Given the certification of the
Petitioner's prior felony drug convictions in the
Information [ECF No. 26] previously filed by the Government,
the District Court noted a departure from a mandatory minimum
sentence of life imprisonment. ECF No. 69 at 9. In consideration
of 18 U.S.C. § 3553(e) and “upon a motion of the
government, ” the District Court reasoned that:
If we look at the drug trafficking conduct and the
defendant's cooperation and all of the other
circumstances in the case . . . that I'm allowed to
consider I would think that on Count Three that the
appropriate sentence is that the defendant be committed to
the care, custody and control of the United States Department
of Justice through its Bureau of Prisons for a period of 192
months, which is 16 years. On Count Two the Court would give
50 percent off for the defendant's cooperation on the
firearm count . . . in addition to the five years that's
consecutive you lose the ability to get credit for RDAP,
which adds another year to the sentence as well. And I think
under all those circumstances that given the defendant's
cooperation an appropriate sentence of 36 months is
appropriate for a total of 228 months, which by my math is 19
ECF No. 69 at 31-32.
October 3, 2017, the United States Court of Appeals for the
Eighth Circuit granted Petitioner's Stipulated Motion to
Voluntarily Dismiss Appeal. ECF Nos. 70, 72-1. Instead,
Petitioner pursued a claim of ineffective assistance of
counsel with the United States District Court for the
District of North Dakota pursuant to 18 U.S.C. § 2255.
ECF No. 75.
Motions to Vacate, Appeals Thereof, and Other Motions for
February 16, 2018, Petitioner filed a § 2255 Motion
alleging ineffective assistance of two attorneys in violation
of the Fifth and Sixth Amendments and seeking several forms
of relief. ECF No. 75. Petitioner filed a 16-page Memorandum
of Law with the Motion to Vacate Under § 2255 on
February 16, 2018, and a supplemental brief in support
thereof on May 3, 2018. ECF Nos. 75-1, 79. The Government
filed a Response in Opposition on July 3, 2018, and
Petitioner filed a reply on August 1, 2018. ECF Nos. 83, 84.
District Court denied Petitioner's § 2255 Motion on
September 10, 2018, and therein declined to issue Petitioner
a certificate of appealability. ECF No. 85.
United States Court of Appeals for the Eighth Circuit denied
Petitioner's Application for a Certificate of
Appealability on January 29, 2019. ECF No. 90.
additionally filed in the sentencing court, a “Pro Se
Motion to Reduce Sentence Under the FIRST STEP Act
2018” on February 22, 2019. ECF No. 91. The
Government's Response in Opposition was filed on February
28, 2019. ECF No. 92. The Court denied this Motion given that
the First Step Act of 2018 went into effect after Petitioner
was sentenced and provided retroactive sentencing reform only
to those offenses involving cocaine and crack cocaine
pursuant to the Fair Sentencing Act of 2010, Pub. L. No.
111-220, 124 Stat. 2372. See First Step Act of 2018,
Pub. L. No. 115-391, 132 Stat. 5194; ECF No. 93.
Petitioner's offenses involved methamphetamine, not
cocaine. ECF No. 93 at 2.
support of his § 2241 petition before this Court,
Petitioner asserts as his sole ground for relief that his
sentence is defective under Wheeler. ECF No. 1 at 5.
Petitioner asserts that he was “sentenced as a career
offender based on an instant offense of conspiracy under
§ 846, which no longer qualifies as a controlled
substance offense.” Id. For relief, Petitioner
asks this Court “to ...