United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge
matter is before the court on respondent's motion to
dismiss for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1) (DE 20). The issues
raised have been fully briefed and are ripe for adjudication.
For the following reasons, the court grants respondent's
April 28, 2005, petitioner was found guilty here, in the
United States District Court for the Eastern District of
North Carolina, of the following charges: conspiracy to
commit armed bank robbery in violation of 18 U.S.C. §
371 (count one); armed bank robbery and aiding and abetting
in violation of 18 U.S.C. §§ 2 and 2113(a) and (d)
(count two); and the use of a firearm during and in relation
to a crime of violence and aiding and abetting in violation
of 18 U.S.C. §§ 2 and 924(c) (count three).
United States v. Petway, No. 4:04-CR-56-H (E.D. N.C.
Apr. 28, 2005). On September 7, 2005, the sentencing court
sentenced petitioner as a career offender to an aggregate
term of 300 months imprisonment. See United States v.
Whitaker, 208 F. App'x 244, 245 (4th Cir. 2006). The
United States Fourth Circuit Court of Appeals subsequently
affirmed petitioner's conviction and sentence.
November 27, 2007, petitioner filed his first pro se
motion to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255. Petway, No. 4:04-CR-56-H
(Nov. 27, 2007). On April 21, 2008, the sentencing court
dismissed petitioner's challenge to his classification as
a career offender, and ordered the United States Attorney to
respond to petitioner's remaining claims. Id.
(Apr. 21, 2008). The sentencing court then dismissed the
remaining claims in petitioner's § 2255 motion on
November 18, 2010. Id. (Nov. 18, 2010).
December 2, 2011, petitioner filed a motion for a reduction
of sentence, which the court construed as a § 2255
motion, challenging his sentence based on the United States
Supreme Court's decisions in Carachuri-Rosendo v.
Holder, 560 U.S. 563 (2010), as applied in United
States v. Simmons, 649 F.3d 237, 240 (4th Cir. 2011).
Id. (Dec. 2, 2011). The district court then
appointed petitioner counsel to proceed with his claim.
Id. (Dec. 19, 2011). Petitioner, through counsel,
filed a supplemental or amended § 2255 motion on May 1,
2012. Id. (May 1, 2012). On August 6, 2012, the
court determined that petitioner's second § 2255 was
successive, and dismissed the motion without prejudice to
petitioner's right to apply to the Fourth Circuit Court
of Appeals for leave to file a successive § 2255 motion.
Id. (Aug. 6, 2012). Petitioner subsequently filed a
motion for reconsideration of the court's August 6, 2012,
order, which the court denied. Id. (Jan. 9, 2013,
May 7, 2013).
October 15, 2015, petitioner filed a letter in his sentencing
court seeking permission to file a “first § 2255
motion challenging . . . [his] career offender
enhancement.” Id. (Oct. 15, 2015). The
sentencing court, in turn, instructed petitioner to contact
the clerk's office to obtain any needed forms, and stated
that it could not provide petitioner any legal advice.
Id. (Jan. 26, 2016). Then, on March 21, 2016, the
Federal Public Defender entered a notice of appearance for
the limited purpose of representing petitioner in accordance
with Standing Order 15-SO-02 to determine whether petitioner
may be entitled to relief under Johnson v. United
States, 135 S.Ct. 2551 (2015). Id. (Mar. 21,
2016). On June 14, 2016, the sentencing court granted the
public defender permission to withdraw as counsel of record
for petitioner. Id. (June 14, 2016). Petitioner
subsequently sought permission in the Fourth Circuit Court of
Appeals to file a second or successive § 2255 motion
based upon the Supreme Court's decision in
Johnson. Id. (June 30, 2016). The Fourth
Circuit denied petitioner's application for
17, 2015, petitioner filed the instant petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 in the United
States District Court for the District of Maryland asserting
that his sentence was improperly enhanced under the
Controlled Substances Act in violation on the Fourth
Circuit's decision in Simmons. Petway v.
Warden, No. GJH-15-2112 (D. Md. July 17, 2015);
Petway v. Warden, No. 5:15-HC-2197-FL (E.D. N.C.
July 17, 2015). On August 28, 2015, the Maryland district
court transferred the petition to this court.
Petway, No. 5:15-HC-2197-FL (Aug. 28, 2015).
Respondent subsequently filed a motion to dismiss pursuant to
Rule 12(b)(1), arguing that the court lacks subject matter
jurisdiction. The motion was fully briefed.
Standard of Review
12(b)(1) motion challenges the court's subject matter
jurisdiction, and the petitioner bears the burden of showing
that federal jurisdiction is appropriate when challenged by
the respondent. McNutt v. Gen. Motors Acceptance
Corp., 298 U.S. 178, 189 (1936); Adams v. Bain,
697 F.2d 1213, 1219 (4th Cir. 1982). Such a motion may either
1) assert the complaint fails to state facts upon which
subject matter jurisdiction may be based, or 2) attack the
existence of subject matter jurisdiction in fact, apart from
the complaint. Adams, 697 F.2d at 1219. Under the
former assertion, the moving party contends that the
complaint “simply fails to allege facts upon which
subject matter jurisdiction can be based.” Id.
In that case, “the [petitioner], in effect, is afforded
the same procedural motion as he would receive under a Rule
12(b)(6) consideration.” Id. “[A]ll
facts alleged in the complaint are assumed true, and the
motion must be denied if the complaint alleges sufficient
facts to invoke subject matter jurisdiction.” Kerns
v. United States, 585 F.3d 187, 192 (4th Cir. 2009).
When the defendant challenges the factual predicate of
subject matter jurisdiction, a court “may then go
beyond the allegations of the complaint and in an evidentiary
hearing determine if there are facts to support the
jurisdictional allegations” without converting the
matter to summary judgment. Adams, 697 F.2d at 1219;
Kerns, 585 F.3d at 192.
contends that two of his prior North Carolina state criminal
convictions do not fall within the definition of a predicate
offense under the Controlled Substance Act in light of the
Fourth Circuit's decision in Simmons. Although
petitioner filed his claim under 28 U.S.C. § 2241, he is
in fact attacking the legality, rather than the execution of,
his conviction and sentence. The legality of one's
conviction and sentence must be challenged under 28 U.S.C.
§ 2255 unless “the remedy by motion [under §
2255] is inadequate or ineffective to test the legality of
his detention.” 28 U.S.C. § 2255; see In re
Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (en
banc). A procedural impediment to § 2255 relief,
such as the statute of limitations or the rule against
successive petitions, does not render § 2255 review
“inadequate” or “ineffective.”
Id. at 1194, n. 5.
Fourth Circuit has examined the prerequisites for finding
that § 2255 is an inadequate or ineffective remedy.
See In re Jones, 226 F.3d 328, 333-34 ...