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Byers v. Warden, FCI Butner Medium II

United States District Court, E.D. North Carolina, Western Division

August 28, 2017

CHARLES BYERS, Petitioner,
v.
WARDEN, FCI BUTNER MEDIUM II, Respondent.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE.

         The 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 7). The issues raised have been fully briefed and are ripe for adjudication. For the following reasons, the court grants respondent's motion.

         BACKGROUND

         On February 26, 2003, petitioner pleaded guilty in the United States District Court for the District of Maryland to conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base (crack), five or more kilograms of cocaine, and one kilogram or more of heroin, in violation of 21 U.S.C. § 846. United States v. Byers, Case No. 1:01-cr-304-JFM-2 (D. Md. February 26, 2003). On April 18, 2003, petitioner was sentenced to 420 months imprisonment. Id. (April 18, 2003). Petitioner's appeal to the Fourth Circuit was dismissed on September 29, 2003. Id. (September 29, 203). On November 24, 2004, petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, which was denied on May 23, 2005. Id. (May 23, 2005). Petitioner filed a motion to reduce sentence pursuant to 18 U.S.C. § 3582 on May 5, 2008, which was denied on September 26, 2008. Id. (September 26, 2008).

         On July 15, 2016, petitioner filed the instant counseled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, in which he asserts he was deprived of effective assistance of counsel during the plea bargain/plea process. (Pet'r. Ex (DE 1-1) at 5-9). Specifically, he contends that he “did not entirely understand how the plea agreement had held him responsible for quantities of drugs and acts of violence with which he did not agree.” Id. at 7. Therefore, petitioner argues, improper drug quantities and relevant conduct were considered in determining petitioner's sentence. Id. Petitioner's claims survived initial review on July 26, 2016 (DE 2). On September 14, 2016, respondent filed a motion to dismiss pursuant to Rule 12(b)(1), arguing that the court lacks subject matter jurisdiction. The motion was fully briefed.

         DISCUSSION

         A. Standard of Review

         A Rule 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.

         B. Analysis

         Although petitioner filed his claim under 28 U.S.C. § 2241, he is in fact attacking the legality of, rather than the execution of, his conviction and sentence. The legality of one's 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.

         The 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 (4th Cir. 2000). In Jones, the court held that:

§ 2255 is inadequate and ineffective to test the legality of a conviction when: (1) at the time of the conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner's direct appeal and first § 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 gatekeeping provisions of § 2255 because the new rule is not one of constitutional law.

Id.

         Petitioner does not demonstrate that § 2255 is an “inadequate or ineffective remedy.” He does not allege that, subsequent to petitioner's direct appeal and first § 2255 petition, the substantive law changed such that the conduct of which he was convicted is deemed not to be criminal. The savings clause does not apply to a prisoner who argues only his innocence of a sentencing factor. See 28 U.S.C. § 2255(h)(1); Farrow v. Revell, 541 Fed.Appx. 327, 328 (4th Cir. 2013) (per curiam) (§ 2255's savings clause “only preserves claims in which petitioner claims actual innocence of convictions and not just innocence ...


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