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Jenkins v. Andrews

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

March 1, 2018

LUTHER JENKINS, Petitioner,
v.
JUSTIN ANDREWS, Respondent.

          ORDER

          LOUISE W. FLANAGAN, UNITED STATES DISTRICT JUDGE.

         The 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.

         BACKGROUND

         On 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, 2006).

         On 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. 952 (2004).

         Thereafter, 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).

         On 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.

         On 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).

         On July 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 briefed.

         DISCUSSION

         A. Standard of Review

         Although 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).

         B. Analysis

         Petitioner 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 ...


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