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Davis v. Rickard

United States District Court, S.D. West Virginia, Bluefield

September 30, 2019



          David A. Faber Senior United States District Judge

         By Standing Order, this action was referred to United States Magistrate Judge Cheryl A. Eifert for submission of findings and recommendations regarding disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Eifert submitted to the court her Findings and Recommendation on June 24, 2019, in which she recommended that the district court deny plaintiff’s petition for a writ of habeas corpus, grant respondent’s request for dismissal, dismiss plaintiff’s petition under 28 U.S.C. § 2241 with prejudice, and remove this matter from the court’s docket.

         In accordance with the provisions of 28 U.S.C. § 636(b), the parties were allotted fourteen days, plus three mailing days, in which to file any objections to Magistrate Judge Eifert’s Findings and Recommendation. The failure of any party to file such objections constitutes a waiver of such party's right to a de novo review by this court. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989). Moreover, this court need not conduct a de novo review when a plaintiff “makes general and conclusory objections that do not direct the court to a specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).

         Davis timely filed objections to the PF&R, as well as a letter to the court in support of those objections. See ECF Nos. 17 and 18. With respect to Davis’s objections, the court has conducted a de novo review.

         On May 9, 2012, in the United States Court for the Southern District of Iowa, Davis pled guilty to conspiracy to distribute cocaine base and marijuana, in violation of 21 U.S.C. § 846, and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). On November 16, 2012, Davis was sentenced to a term of imprisonment of 262 months, consisting of 202 months on the drug conspiracy charge and sixty months on the firearm charge, sentences to run consecutively. His sentence was largely driven by his criminal history as he was found to be a career offender under the advisory sentencing guidelines.

         Magistrate Judge Eifert’s PF&R is thorough and comprehensive and provides an excellent account of the various arguments Davis raises that, according to him, entitle him to habeas relief. Plaintiff’s objections are difficult to decipher. Furthermore, to a large degree, they do not direct the court to specific errors in the PF&R but, rather, merely restate the same arguments previously made without confronting the deficiencies identified in the PF&R.

         A. Mathis

         Davis objects to the PF&R’s ultimate conclusion that his claim is not cognizable in § 2241. To that end, he asserts “Mathis vs United States was decided [in] 2016 well after petitioners direct appeal & 2255.” ECF No. 17 at p.1; see also pp.6-8. Davis does not really grapple with the analysis in the PF&R detailing why he is unable to proceed under the savings clause on this claim - Mathis is not a new rule of substantive law that is retroactively applicable on collateral review.

         As Magistrate Judge Eifert correctly noted, Davis challenges the validity of his conviction and sentence and, therefore, in view of the nature of his claims, his application must be considered to be a Motion to Vacate, Set Aside or Correct his sentence under § 2255. Motions under 28 U.S.C. § 2255 are the exclusive remedy for testing the validity of federal judgments and sentences unless there is a showing that the remedy is inadequate or ineffective. See Hahn v. Moseley, 931 F.3d 295, 300 (4th Cir. 2019) (“Generally, defendants who are convicted in federal court must pursue habeas relief from their convictions and sentences through the procedures set out in 28 U.S.C. § 2255.”).[1] The remedy under § 2241 is not an additional, alternative or supplemental remedy to that prescribed under § 2255.

         “Nonetheless, § 2255 includes a ‘savings clause’ that preserves the availability of § 2241 relief when § 2255 proves `inadequate or ineffective to test the legality of a [prisoner’s] detention.’” Hahn, 931 F.3d at 300 (quoting 28 U.S.C. § 2255(e)); see also In re Jones, 226 F.3d 328, 333 (4th Cir. 2000) (“[W]hen § 2255 proves `inadequate or ineffective to test the legality of . . . detention, ’ a federal prisoner may seek a writ of habeas corpus pursuant to § 2241.”). “In determining whether to grant habeas relief under the savings clause, [a court should] consider (1) whether the conviction was proper under the settled law of this circuit or Supreme Court at the time; (2) if the law of conviction changed after the prisoner’s direct appeal and first § 2255 motion; and (3) if the prisoner cannot meet the traditional § 2255 standard because the change is not one of constitutional law.” Hahn, 931 F.3d at 300-01 (citing In re Jones, 226 F.3d at 333-34).

         The United States Court of Appeals for the Fourth Circuit has also held that a person in federal custody may, under certain circumstances, use the savings clause under § 2255 to challenge his sentence. See United States v. Wheeler, 886 F.3d 415, 428 (2018). In Wheeler, the Fourth Circuit held that § 2255 is inadequate or ineffective to test the legality of a sentence when:

(1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to meet the gatekeeping provisions of § 2255(h)(2) for second or successive motions; and (4) due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect.

Id. at 429 (citing In re Jones, 226 F.3d 328, 333–34 (4th Cir. 2000)).

         The plaintiff bears the burden of showing the inadequacy or ineffectiveness of a § 2255 motion. See McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979). The fact that relief under § 2255 is barred procedurally or by the gatekeeping requirements of § 2255 does not render the remedy of § 2255 inadequate or ineffective. See In re Jones, 226 F.3d at 332-33; Young v. Conley, 128 F.Supp.2d 354, 357 (S.D.W.Va. 2001); see alsoCradle v. United States, 290 F.3d 536, 538-39 (3d Cir. 2002) (“It is the inefficacy of the remedy, not the personal inability to use it, that is determinative. Section 2255 is not inadequate or ineffective merely because the sentencing court does not grant relief, the one-year statute of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255.”) ...

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