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Collins v. Entzel

United States District Court, N.D. West Virginia, Elkins

August 15, 2019

FREDERICK ENTZEL, Warden, Respondent.



         On this day, the above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge James P. Mazzone [Doc. 17]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Mazzone for submission of a proposed report and recommendation ("R&R"). Magistrate Judge Mazzone filed his R&R on July 8, 2019, wherein he recommends that petitioner's Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Doc. 1] be denied and dismissed without prejudice.

         Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge's findings to which objection is made. However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Am, 474 U.S. 140, 150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Petitioner timely filed his Objections [Doc. 22]. Accordingly, this Court will review the portions of the R&R to which the petitioner objects under a de novo standard of review. The remainder of the R&R will be reviewed for clear error.


         On August 24, 2010, the petitioner pleaded guilty to armed bank robbery in violation of 18 U.S.C. § 2113(a), (d). The presentence report ("PSR") found that the petitioner had three qualifying prior convictions that triggered the career offender enhancement under U.S.S.G. § 4B1.2: (1) a 1981 West Virginia state conviction for aggravated robbery; (2) a 2000 federal conviction for conspiracy to possess with intent to distribute heroin; and (3) a 2008 North Carolina state conviction for common law robbery.

         Based on the career offender enhancement, petitioner faced a guideline range of 188 to 235 months. At his sentencing hearing, petitioner argued that a variance below the Career Offender Guideline range was appropriate because the Career Offender Guideline was developed in a flawed manner, unlike other Guidelines, and was unlikely to produce a sentence that achieved the objectives of 18 U.S.C. § 3553(a).

         The district court declined to vary downward, and on September 1, 2011, a sentence of 210 months was imposed. His guideline range was 188 to 235 months. Absent the career offender enhancement, petitioner's guideline range would have been 70 to 87 months. According to the Bureau of Prisons Inmate Locator, petitioner's current projected release date is June 17, 2025.

         Petitioner filed a direct appeal arguing that the career offender guidelines are flawed and the Fourth Circuit affirmed the district court's decision. On June 20, 2016, petitioner, by counsel, filed a Motion to Vacate Under 28 U.S.C. § 2255 [Doc. 36]. Petitioner, by counsel, voluntarily dismissed the petition [Doc. 37].

         The petitioner filed the instant § 2241 decision and argued that none of his prior convictions qualify as valid offenses to count towards being categorized as a career offender. He argued that the West Virginia conviction for aggravated robbery and the North Carolina conviction for common law robbery do not count as violent offenses towards a career offender enhancement. He argued that his conspiracy to possess with intent to distribution of heroin offense does not qualify as a predicate offense because the Guidelines definition of "Controlled Substance Offense" does not include inchoate offenses, only completed crimes.

         Magistrate Judge Mazzone rejected petitioner's arguments and held that petitioner could not satisfy the § 2255(e) savings clause because he was sentenced after the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005).

         Petitioner's § 2241 petition before this Court is based on one theory-that his prior convictions no longer serve as predicate offenses under the career offender provision of United States Sentencing Guidelines § 4B1.1. As such, petitioner requests that his sentence be vacated and remanded to the sentencing court for resentencing without the career offender designation.


         Generally, 28 U.S.C. § 2255 provides the exclusive means for a prisoner in federal custody to test the legality of his detention. However, § 2255(e) contains a savings clause, which allows a district court to consider a habeas petition brought by a federal prisoner under § 2241 where § 2255 is "inadequate or ineffective to test the legality" of the detention. 28 U.S.C. § 2255; see also United States v. Poole, 531 F.3d 263, 270 (4th Cir. 2008). The fact that relief under § 2255 is procedurally barred does not render the remedy inadequate or ineffective to test the legality of a prisoner's detention. In re Jones, 226 F.3d 328, 332 (4th Cir. 2000). In the Fourth Circuit, a § 2255 petition is only inadequate or ineffective to test the legality of detention when:

(1) [A]t the time of conviction, settled law in this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner's direct appeal and first ยง 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the ...

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