United States District Court, E.D. North Carolina, Eastern Division
Earl Britt Senior U.S. District Judge
matter is before the court for initial review of
petitioner's pro se “motion to reverse
armed career criminal enhancement and grant a writ of habeas
corpus pursuant to 28 USC '2241.” (DE # 67.)
See 28 U.S.C. § 2243; McFarland v.
Scott, 512 U.S. 849, 856 (1994) (“Federal courts
are authorized to dismiss summarily any habeas petition that
appears legally insufficient on its face . . . .”
of background, in October 2009, petitioner pled guilty to
possession of a firearm by a convicted felon in violation of
18 U.S.C. § 922(g)(1). In January 2010, the court
sentenced petitioner to 180 months imprisonment under the
Armed Career Criminal Act (AACCA@), 18 U.S.C. § 924(e),
based on his North Carolina convictions for breaking,
entering, and larceny (1965), selling cocaine (1989), and
possession with intent to sell or deliver cocaine (1992).
(Order, DE # 65, at 1 (citing PSR
¶¶ 6, 10, 12, 15, 42; 1/4/10 Tr.,
DE # 52, at 2-6.)) On petitioner's appeal from that
sentence, the Fourth Circuit Court of Appeals affirmed,
concluding that both of petitioner's prior drug
convictions qualified as serious drug offenses for purposes
of the ACCA and that his prior breaking and entering
conviction qualified as a violent felony for purposes of the
ACCA. (DE # 60.) Petitioner filed a petition for writ of
certiorari, which the Supreme Court denied in March 2012.
timely filed a 28 U.S.C. § 2255 motion in August 2012
claiming that his 1989 conviction was not a serious drug
offense for purposes of the ACCA and that counsel was
ineffective for failing to challenge it. (DE # 63, at 4-5.)
Two months later, this court dismissed the § 2255 motion
on initial review and denied a certificate of appealability.
(DE # 65.)
August 2015, petitioner filed the instant § 2241 motion.
On 14 December 2015, pursuant to Standing Order No. 15-SO-02,
the Office of the Federal Public Defender filed a notice of
appearance on behalf of petitioner for purposes of
determining whether petitioner may qualify for
post-conviction relief pursuant to Johnson v. United
States, 135 S.Ct. 2551 (2015). (DE # 68.) On 18 May
2016, petitioner, with the assistance of counsel, filed a
motion under 28 U.S.C. § 2244 for an order authorizing
this court to consider a second or successive motion under
§ 2255, seeking to challenge his sentence in light of
United States v. Newbold, 791 F.3d 455 (4th Cir.
2015). In re: McClain, No. 16-831, DE # 2 (4th
Cir.). On 1 June 2016, the Fourth Circuit Court of Appeals
denied that motion. Id., DE # 14.
§ 2241 motion, petitioner claims his
breaking and entering conviction no longer qualifies as a
predicate violent felony conviction for purposes of the ACCA
in light of Johnson. As such, he attacks the
legality, rather than the execution, of his sentence. A
petitioner must challenge the legality of his sentence under
§ 2255 unless the remedy under § 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). “However, the remedy afforded by
§ 2255 is not rendered inadequate or ineffective merely
because an individual has been unable to obtain relief under
that provision or because an individual is procedurally
barred from filing a § 2255 motion.” In re
Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997) (citations
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. If such a showing is
made, federal courts retain jurisdiction to hear the section
2241 petition. See id. at 333. Otherwise, a court
must dismiss the habeas petition for lack of jurisdiction.
Rice, 617 F.3d at 807.
claim does not fall within § 2255's savings clause.
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 being sentenced under the ACCA. 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) (concluding the
petitioner's challenge to his armed career criminal
status was not cognizable under § 2241). Therefore,
petitioner cannot show that § 2255 is inadequate or
ineffective to challenge his sentence, and the court cannot
consider his § 2241 motion.
motion is DISMISSED WITHOUT PREJUDICE. The court finds that
petitioner has not made a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. §
2253(c)(2); see also Miller-El v. Cockrell 537 U.S.
322, 336-38 (2003); Slack v. McDaniel 529 U.S. 473,
483-84 (2000). A certificate of appealability is DENIED. The
Clerk is DIRECTED to serve a copy of this order on petitioner
and close this case.
 Under the ACCA, a defendant is an
armed career criminal and subject to a fifteen-year mandatory
minimum sentence if he violates 18 U.S.C. § 922(g)(1),
and has three prior convictions for violent felonies or
serious drug offenses, committed on occasions different from
one another. 18 ...