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Lee v. Saad

United States District Court, N.D. West Virginia

August 2, 2019

NORMAN LEE, JR., Petitioner,
v.
JENNIFER SAAD, Warden, FCI Gilmer, Respondent.

          MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND OVERRULING PETITIONER'S OBJECTIONS

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE

         I. Procedural History

         The pro se[1] petitioner, Norman Lee, Jr. (“Lee”), an inmate incarcerated at FCI Gilmer in Glenville, West Virginia, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 (“§ 2241”) challenging the validity of his sentence from the United States District Court for the District of Maryland. ECF No. 1. Petitioner contends that he is actually innocent of being a career offender, and was improperly classified as such. Id. At 5-6. Additionally, Lee claims that “[t]hese errors are plain, and equate to ineffectiveness of counsel which affect Lee's substantial rights.” Id. at 6. For relief, the petitioner requests that this Court grant his petition, vacate his sentence as a career offender, resentence him without the career offender designation, and grant him immediate release. Id. at 8. Lee also requests he be granted relief pursuant to Amendment 782, [2] for which he was previously ineligible. Id.

         The action was referred to United States Magistrate Judge James P. Mazzone for initial review and report and recommendation pursuant to Local Rule of Prisoner Litigation Procedure 2. The magistrate judge filed a report and recommendation recommending that the petition be denied and dismissed without prejudice. ECF No. 8. The magistrate judge informed the petitioner that if he objected to any portion of the report and recommendation, he was required to file specific written objections within 14 days after being served with copies of the report. Id. at 9. The petitioner filed timely objections. Id. at 10.

         For the reasons that follow, this Court finds that the report and recommendation of the magistrate judge should be adopted in its entirety.

         II. Applicable Law

         Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de novo review of any portion of the magistrate judge's report and 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).

         III. Discussion

         On de novo review, this Court finds that the magistrate judge properly concluded that this Court is without jurisdiction to consider Lee's petition. This Court agrees with the magistrate judge's finding that because Lee does not satisfy the savings clause of § 2255(e) under Wheeler, [3] his claim may not be considered under § 2241. Further, when subject-matter jurisdiction does not exist, “the only function remaining to the court is that of announcing the fact and dismissing the cause.” Steel Co v. Citizens for a Better Env't, 523 U.S. 83, 1012-16 (1998); Reinbold v. Evers, 187 F.3d 348, 359 n.10 (4th Cir. 1999).

         In his report and recommendation, the magistrate judge correctly determined that the petitioner's § 2241 petition should be dismissed without prejudice after finding that the petitioner's claim is not properly brought under § 2241. ECF No. 8 at 9. The magistrate judge accurately found that because the petitioner is challenging the validity of his sentence, not his conviction, the Court must apply United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), to determine whether § 2255 is inadequate or ineffective. Id. at 9. In the report and recommendation, the magistrate judge found that even assuming the petitioner could satisfy the first, second, and third prongs of the Wheeler test, Lee cannot meet the fourth prong. Id. at 8. The petitioner fails to establish that, due to a retroactive change in the law, his sentence now presents an error sufficiently grave to be a fundamental defect, as the fourth prong requires. See Lester v. Flournoy, 909 F.3d 708, 715 (4th Cir. 2018). In Lester, the United States Court of Appeals for the Fourth Circuit determined that a misclassification as a career offender can be a fundamental defect if the sentencing occurred pre-Booker, [4] when the sentencing Guidelines were mandatory. Lester, 909 F.3d at 714. The magistrate judge next cites Foote, [5]which would bar Lee's petition, as he was sentenced under the advisory Guidelines. ECF No. 8 at 8. The magistrate judge concluded that subject-matter jurisdiction does not exist in this Court because the petitioner was sentenced under the post-Booker, advisory Guidelines, and “regardless of whether this was a misapplication of those guidelines, the law in this Circuit makes clear that he cannot satisfy the fourth Wheeler prong, and therefore, fails to satisfy the § 2255(e) savings clause.” Id. Additionally, the magistrate judge noted in his report and recommendation that petitioner cannot demonstrate that § 2255 is an inadequate or ineffective remedy just because his previous § 2255 petition was unsuccessful. Id. at 9. Upon de novo review of the petitioner's argument and the report and recommendation, this Court agrees.

         The petitioner filed objections in a response to the magistrate's report and recommendation. ECF No. 10. To start, the petitioner makes a valid objection when he notes the magistrate judge “incorrectly states that Lee does not raise the savings clause.” Id. at 1. This Court finds that the petitioner properly raised the “savings clause” argument in his original complaint. See ECF No. 1 at 9. However, upon further review, this Court finds that despite this erroneous statement, the magistrate judge did conduct an appropriate analysis of the petitioner's claims pursuant to Wheeler.

         In the remainder of the petitioner's objections, he uses multiple arguments to claim that he satisfies the fourth prong of Wheeler, because due to a retroactive change in the law, his sentence now presents an error sufficiently grave to be a fundamental defect. ECF No. 10. First, the petitioner claims that his determination as a career offender classification was a plain error. Id. at 2. Second, the petitioner objects to the magistrate judge's finding that his sentence was determined under the advisory Guidelines, instead arguing that his incorrect sentence is due to a statutory enhancement. Id. Third, the petitioner argues that he satisfies the fourth prong of Wheeler because without the career offender status, his sentence “becomes a grave miscarriage of justice, and a fundamental defect.” ECF No. 10 at 3. Ultimately, petitioner contends that this Court should “rule on the merits of his 2241 motion, void his career offender enhancement due to his illegal sentence and recognize his claim of actual innocence and ineffectiveness of counsel.” Id. at 4.

         Upon de novo review, this Court finds that although petitioner asserts that he is entitled to relief under the savings clause, it is clear that he is not. In petitioner's argument regarding the statutory basis of the career offender classification, he overlooks the importance of the advisory nature of the sentencing guidelines after the Supreme Court's ruling in United States v. Booker, 543 U.S. 220 (2005).

         Because petitioner is not challenging his conviction, the test under In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000), does not apply and, instead, this Court must review the petition under the four prong savings clause test under United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), for erroneous sentences. This Court ...


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