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 failure to state a claim pursuant to Federal Rule
of Civil Procedure 12(b)(6) (DE 15). The issues raised have
been fully briefed and are ripe for adjudication. For the
following reasons, the court dismisses the petition without
prejudice for lack of subject matter jurisdiction.
April 28, 1999, petitioner pleaded guilty in the United
States District Court for the Western District of North
Carolina to the following charges: possession with intent to
distribute cocaine base, in violation of 21 U.S.C. §
841(a)(1) (count one) and possession of a firearm during and
in relation to a drug trafficking crime, in violation of 18
U.S.C. § 924(c) (count three). United States v.
Jenkins, No. 3:99-CR-21-MOC (W.D. N.C. Apr. 28, 1999).
On November 3, 1999, the sentencing court sentenced
petitioner as a career offender to 202 months imprisonment on
count one, and a consecutive term of 60 months imprisonment
on count three. Id. (Nov. 3, 1999). Petitioner
initially filed an appeal to the United States Court of
Appeals for the Fourth Circuit, but he later voluntarily
dismissed the appeal. See United States v. Jenkins,
No. 3:99-CR-21, 2006 WL 983899, at *1 (W.D. N.C. Apr. 11,
September 22, 2000, petitioner filed his first pro se motion
to vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255, raising the following claims: (1) his
guilty plea was not knowing and voluntary; (2) his conviction
and sentence violated double jeopardy principles; (3) one of
his prior drug convictions used at sentencing was
unconstitutional; (4) that the sentencing court improperly
used one of his prior convictions in the calculation of his
criminal history; (5) entrapment; and (6) ineffective
assistance of counsel. Jenkins v. United States, No.
3:00-CV-476 (W.D. N.C. Sept. 22, 2000, Dkt. Nos. 1 & 2).
On January 21, 2003, the sentencing court dismissed all
claims in petitioner's motion with prejudice, finding
that the first five claims were procedurally defaulted
because he failed to pursue them on direct appeal, and that
his ineffective assistance of counsel claim lacked merit.
Id. (Jan. 21, 2003). Petitioner appealed the
dismissal order, but the United States Court of Appeals for
the Fourth Circuit declined to issue a certificate of
appealability and dismissed the appeal. United States v.
Jenkins, 66 F. App'x 515 (4th Cir. 2003). Petitioner
also filed a Petition for Writ of Certiorari to the United
States Supreme Court seeking review of the Fourth
Circuit's decision, but that petition was dismissed on
March 22, 2004. Jenkins v. United States, 541 U.S.
petitioner filed numerous pro se motions with the sentencing
court, including a motion to correct his sentence pursuant to
United States v. Booker, 543 U.S. 220 (2005) and a
motion to correct his sentence pursuant to Apprendi v.
New Jersey, 530 U.S. 466 (2000). Jenkins, No.
3:99-CR-21-MOC (Feb. 3, 2006 & July 6, 2005). The court
construed petitioner's Booker and
Apprendi motions as an attempt to bring successive
§ 2255 motions and denied them because petitioner failed
to obtain pre-filing authorization from the Fourth Circuit.
Id. (Feb. 7, 2006) at 5-6. On February 24, 2006,
Petitioner filed a motion for authorization to file a
successive § 2255 application with the Fourth Circuit,
which was summarily denied. Id. (Mar. 10, 2006).
February 2, 2012, petitioner filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241 in the United
States District Court for the Western District of Virginia,
challenging his sentence under United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011). Jenkins v.
United States, No. 7:12-CV-52, 2012 WL 474386 (W.D. Va.
Feb. 14, 2012). The district court concluded that sentencing
challenges are not cognizable under § 2241 and dismissed
the petition. See id. at *1-2.
April 20, 2012, petitioner filed another § 2255 motion,
again challenging his sentence based on United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011). Jenkins v.
United States, No. 3:12-CV-244 (W.D. N.C. Apr. 20,
2012). The sentencing court then appointed counsel to proceed
with the claim. On December 11, 2012, appointed counsel filed
a “Notice of FDWNC Determination of Ineligibility for
Simmons Relief” noting her determination that
petitioner was not eligible for relief under Simmons
. Id. (Dec. 11, 2012). On December 12, 2012, the
sentencing court dismissed all claims in the § 2255
motion and denied a certificate of appealability.
Id. (Dec. 12, 2012). Petitioner appealed that
ruling, and the Fourth Circuit declined to issue a
certificate of appealability on June 26, 2013. United
States v. Jenkins, 531 F. App'x 280 (2013).
17, 2015, petitioner filed the instant petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 in this
court, asserting that his sentence was improperly enhanced
because he is not a career offender under the Fourth
Circuit's decision in United States v. Brandon,
247 F.3d 186 (4th Cir. 2001). Jenkins v. Andrews,
No. 5:16-HC-2215-FL (E.D. N.C. Aug. 29, 2016). Respondent
subsequently filed a motion to dismiss pursuant to Rule
12(b)(6), arguing that the complaint fails to state a claim
upon which relief can be granted. The motion was fully
Standard of Review
respondent does not contest jurisdiction, this court has an
independent obligation to determine whether it has subject
matter jurisdiction to consider the petition. Gonzalez v.
Thaler, 565 U.S. 134, 141 (2012) (“When a
requirement goes to subject-matter jurisdiction, courts are
obligated to consider sua sponte issues that the
parties have disclaimed or have not presented.”). At
the pleading stage, the inquiry is whether the petition
“fails to allege facts upon which subject matter
jurisdiction can be based.” Adams v. Bain, 697
F.2d 1213, 1219 (4th Cir. 1982). In this posture, “the
[petitioner], in effect, is afforded the same procedural
protection as he would receive under a Rule 12(b)(6)
consideration.” Id. “[All] facts alleged
in the [petition] are taken as true, and the motion must be
denied if the [petition] alleges sufficient facts to invoke
subject matter jurisdiction.” Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009).
contends that he was improperly designated a career offender
at sentencing pursuant to the principles set forth in
United States v. Brandon. See Brandon, 247
F.3d at 196-97 (holding that North Carolina drug trafficking
offense may not qualify as a serious drug offense for purpose
of the Armed Career ...