United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE, United States District Judge
February 21, 2017, petitioner, a federal inmate proceeding
pro se. filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 [D.E. 1], together with a
supporting memorandum [D.E. 1-1]. Petitioner seeks
appointment of counsel. [D.E. 1-1 at 1]. This matter is
before the court for a preliminary review under 28 U.S.C.
5, 2012, in the Eastern District of North Carolina,
petitioner pleaded guilty pursuant to a plea agreement to one
count of possession with intent to distribute a quantity of
cocaine and a quantity of cocaine base (crack) in violation
of 21 U.S.C. § 841(a)(1) and one count of being a felon
in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924. See Day v. United
States, No.4:12-CR-36-BO, 2014WL12493188, at*l (E.D.
N.C. Feb. 10, 2014). On November 14, 2012, this court
sentenced petitioner to concurrent terms of 151 and 120
months imprisonment. See Day, 2014 WL
12493188, at 1. Petitioner did not appeal. Pet. at 2.
November 14, 2013, petitioner filed a motion to vacate his
sentence under 28 U.S.C. § 2255, which this court
dismissed on February 10, 2014. See Pet. at 4; Day., 2014 WL
12493188, at 2. Petitioner appealed. On May 29, 2014, the
Fourth Circuit Court of Appeals dismissed the appeal. See
United States v. Day, 573 Fed.Appx. 275 (4th Cir.
2014) (per curiam).
instant petition, petitioner's sole ground for relief is
that he is actually innocent of being a career offender under
section 4B1.1 of the United States Sentencing Guidelines
("the Guidelines"). More specifically, petitioner
contends that in light of the Supreme Court's decision in
Mathis v. United States, 136 S.Ct. 2243 (2016), his
prior state drug convictions under N.C. Gen. Stat. §
90-95 no longer qualify as "controlled substance
offenses" under section 4B 1.2(b) of the Guidelines.
Pet. at 2; Mem. Supp. Pet. at 6. Petitioner asks for
resentencing without the career offender enhancement and
maintains that his continued incarceration under his current
sentence violates his right to due process of law. Mem. Supp.
Pet. at 5.
petitioner filed the current action under 28 U.S.C. §
2241, he attacks the legality, rather than the execution, of
his sentence. A petitioner must challenge the legality of his
sentence under 28 U.S.C. § 2255 unless the remedy under
section 2255 "is inadequate or ineffective to test the
legality of his detention." 28 U.S.C. § 2255(e)
("savings clause"); see Rice v. Rivera,
617 F.3d 802, 807 (4th Cir. 2010); In re Jones, 226
F.3d 328, 332-33 (4th Cir. 2000). Section 2255 is inadequate
or ineffective to test the legality of a sentence when three
conditions are met:
(1) at the time of conviction, settled law of [the Fourth
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.
Jones, 226 F.3d at 333-34; see In re Vial,
115 F.3d 1192, 1194 (4th Cir. 1997) (explaining the remedy
afforded by section 2255 is not rendered inadequate or
ineffective merely because relief has become unavailable
under section 2255 because of a limitation bar, the
prohibition against successive petitions, or a procedural bar
due to failure to raise the issue on direct appeal) (internal
citation omitted). If such a showing is made, federal courts
retain jurisdiction to hear the section 2241 petition.
Id. at 333. Otherwise, a court must dismiss the
habeas petition for lack of jurisdiction. Rice, 617 F.3d at
establish actual innocence, "a petitioner must show that
it is more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable doubt."
Schlup v. Delo, 513 U.S. 298, 326 (1995). "To
be credible, such a claim requires petitioner to support his
allegations of constitutional error with new reliable
evidence-whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical
evidence-that was not presented at trial." Id.
at 324. "[A] petitioner does not meet the threshold
requirement unless he persuades the district court that, in
light of the new evidence, no juror, acting reasonably, would
have voted to find him guilty beyond a reasonable
doubt." Id. at 329.
claim does not fall within section 2255's savings clause.
First, his claim is not based upon a contention that the
conduct which led to his federal conviction is no longer
criminal as a result of some change in the law. Instead, he
challenges the basis for his career offender sentence
enhancement. However, 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) (section 2255 's savings clause "only
preserves claims in which petitioner claims actual innocence
of convictions and not just innocence of [a] sentencing
factor"). Moreover, Mathis did not establish a
new rule of constitutional law. See Arazola-Galea v.
United States, ___, F.3d. ___, 2017 WL
6327838, at *2 (9th Cir. 2017) (collecting cases). Thus,
petitioner cannot demonstrate that section 2255 is inadequate
or ineffective to test the legality of his detention.
Therefore, the court dismisses the petition for lack of
jurisdiction. Rice, 617 F.3d at 807.
petitioner's reliance on Mathis is misplaced. In
Mathis, the Supreme Court held that a prior state
conviction does not qualify as a predicate under the Armed
Career Criminal Act ("ACCA") if the elements of the
state crime of conviction are broader than "the elements
of the ... offense as commonly understood."
Mathis, 136 S.Ct. at 2247-48 (finding Iowa's
definition of burglary more encompassing than the
"generic" or common law definition of burglary).
Relying on this holding, petitioner argues a controlled
substance offense under N.C. Gen. Stat. § 90-95'-the
statute that provided the basis for his prior state
convictions-"covers a greater swath of conduct"
than its generic counterpart under section 4B1.2(b) of the
Guidelines and therefore his prior state drug
convictions are invalid predicate offenses for career
offender determination. Mem. Supp. Pet. at 2.
Fourth Circuit's recent decision in United States v.
Dozier is instructive, 848 F.3d 180 (4th Cir. 2017). In
that case, the Fourth Circuit determined that West
Virginia's "controlled substance offense" was a
categorical match with the generic "controlled substance
offense" as provided by the Guidelines. Id. at
187-88. Under the same reasoning, North Carolina's
"controlled substance offense" is a categorical
match because the related elements are no broader than the
generic offense. See Id. at 187; compare U.S.S.G.
§ 4B 1.2(b), ...