Argued: January 25, 2018
from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:06-cr-00363-RJC-3; 3:11-cv-00603-RJC)
Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant.
J. Feigin, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.
Richardson, Federal Public Defender, Interim, FEDERAL PUBLIC
DEFENDER WESTERN DISTRICT OF NORTH CAROLINA, Charlotte, North
Carolina, for Appellant.
J. Francisco, Solicitor General, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; Jill Westmoreland Rose, United
States Attorney, Charlotte, North Carolina, Amy E. Ray,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee.
KING, FLOYD, and THACKER, Circuit Judges.
THACKER, Circuit Judge
district court, Gerald Wheeler ("Appellant") sought
to have his habeas corpus petition heard on the merits by
means of the "savings clause" per 28 U.S.C. §
2255(e). The savings clause provides that an individual may
seek relief from an illegal detention by way of a traditional
28 U.S.C. § 2241 habeas corpus petition, if he or she
can demonstrate that a § 2255 motion is "inadequate
or ineffective to test the legality of his detention."
28 U.S.C. § 2255(e). The district court denied
Appellant's savings clause request and dismissed his
§ 2241 petition.
Appellant satisfies the requirements of the savings clause as
dictated by our decision in In re Jones, 226 F.3d
328 (4th Cir. 2000), because a retroactive change in the law,
occurring after the time for direct appeal and the filing of
his first § 2255 motion, rendered his applicable
mandatory minimum unduly increased, resulting in a
fundamental defect in his sentence. We thus vacate the
district court's judgment and remand with instructions
that Appellant's § 2241 petition be considered on
Sentence, and Direct Appeal
September 2006, a grand jury in the Western District of North
Carolina returned a multi-defendant superseding indictment
charging Appellant with conspiracy to possess with intent to
distribute at least 50 grams of crack cocaine and 500 grams
of powder cocaine, in violation of 21 U.S.C. §
841(b)(1)(B) ("Count One"); possession with intent
to distribute at least 5 grams of crack cocaine ("Count
Five"); using and carrying a firearm during and in
relation to a drug trafficking crime ("Count Six");
and being a felon in possession of a firearm ("Count
Seven"). The Government also filed an information
pursuant to 21 U.S.C. § 851, seeking an enhanced penalty
based on Appellant's 1996 North Carolina conviction for
possession of cocaine (the "1996
Conviction"). On April 17, 2007, Appellant pled guilty
to Counts One, Six, and Seven of the indictment. His plea
agreement provided that as to Count One, "Due to . . .
the [§ 851 information], Defendant is facing not less
than ten years imprisonment up to a maximum of life
imprisonment." Plea Agreement, United States v.
Wheeler, No. 3:06-cr-363 (W.D. N.C. filed April 3,
2007), ECF No. 66 at 1.
March 2008, the district court sentenced Appellant to 120
months of imprisonment, the statutory mandatory minimum, on
Count One. In so doing, it determined that the 1996
Conviction was a "felony drug offense, " and as a
result, Appellant's enhanced statutory range was 10 years
to life in prison. See 21 U.S.C. § 841(b)(1)(B)
("If any person commits . . . a [§ 841(b)(1)(B)]
violation after a prior conviction for a felony drug
offense has become final, such person shall be sentenced
to a term of imprisonment which may not be less than 10 years
and not more than life imprisonment . . . ." (emphasis
supplied)); id. § 802(44) (defining
"[f]elony drug offense" as "an offense that is
punishable by imprisonment for more than one year under any
[state] law . . . that prohibits or restricts conduct
relating to narcotic drugs"). Without the 1996
Conviction, Appellant's United States Sentencing
Guidelines ("Guidelines") range would have been
70-87 months, and his statutory sentencing range would have
been 5 to 40 years. The district court noted, "[T]he
sentence that is required to be imposed upon you is a harsh
sentence. It's a mandatory minimum sentence. I don't
have any discretion in that area." J.A.
85-86. We affirmed Appellant's conviction and
sentence. See United States v. Wheeler, 329
Fed.Appx. 481 (4th Cir. 2009) (per curiam).
§ 2255 Motion
29, 2010, Appellant filed a motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255. He
alleged that his counsel was ineffective for, inter alia,
failing to argue that the 1996 Conviction did not qualify to
enhance his sentence. See J.A. 116-17
("[C]ounsel in this matter allowed an error to proceed
uncorrected . . . . The term of [the 1996 Conviction]
didn't exceed one year[;] the maximum punishment that he
could receive was eight months . . . .").
district court dismissed the § 2255 motion on March 17,
2011, and denied a certificate of appealability
("COA"), explaining that Appellant's argument
was foreclosed by this court's decision in United
States v. Harp, 406 F.3d 242 (4th Cir. 2005), and this
court's panel decision in United States v.
Simmons, 635 F.3d 140 (4th Cir. 2011). See J.A.
204. Those decisions held, "[T]o determine whether a
conviction is for a crime punishable by a prison term
exceeding one year [under North Carolina law], . . . we
consider the maximum aggravated sentence that
could be imposed for that crime upon a defendant
with the worst possible criminal history."
Harp, 406 F.3d at 246 (second emphasis supplied);
see also Simmons, 635 F.3d at 146. Thus, the
district court reasoned that although Appellant received a
sentence of six to eight months for the 1996 Conviction,
"his offense was punishable by imprisonment for more
than a year" because it was a Class I felony, which
carries a maximum sentence of 15 months. J.A. 204. Thus,
"[a]ny challenge [to the 1996 Conviction] made by
Petitioner's counsel would have failed."
filed a pro se motion to reconsider, again contending that
the 1996 Conviction did not qualify as a felony drug offense.
And again, the district court denied the motion. Appellant
filed a notice of appeal on April 14, 2011, and a motion for
COA with this court on August 3, 2011.
the motion for COA was pending, this court, sitting en banc,
overturned the panel decision in Simmons. See
United States v. Simmons, 649 F.3d 237 (4th Cir. 2011)
(en banc) (hereinafter "Simmons"). We
determined that "in deciding whether a sentencing
enhancement was appropriate under the Controlled Substances
Act, a district court could no longer look to a hypothetical
defendant with the worst possible criminal history. Instead,
. . . a sentencing court may only consider the maximum
possible sentence that the particular defendant
could have received." United States v. Kerr,
737 F.3d 33, 37 (4th Cir. 2013) (emphasis in original)
(discussing Simmons, 649 F.3d at 246-47 & n.9).
Thus, what matters is the potential maximum sentence to which
a defendant is exposed, not the highest possible sentence.
See Simmons, 649 F.3d at 243 (relying on
Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010)).
As a result, we vacated Simmons's sentence because the
state court "never made the recidivist finding necessary
to expose Simmons to a higher sentence, " id.,
and the Government was "precluded from establishing that
a conviction was for a qualifying offense" under the
Controlled Substances Act, id. (quoting United
States v. Rodriquez, 553 U.S. 377, 389 (2008)).
we denied Appellant's motion for COA and dismissed his
appeal of his first § 2255 petition because, at that
time, Simmons did not apply retroactively on
collateral review. See United States v. Wheeler, 487
Fed.Appx. 103 (4th Cir. 2012) (per curiam) (citing United
States v. Powell, 691 F.3d 554 (4th Cir. 2012)).
§ 2255 Motion/ § 2241 Petition
2011, Appellant filed a second § 2255 motion pro se,
alleging that he was "actually innocent" of the
§ 851 enhancement based on Simmons, the 1996
Conviction is not a felony drug offense, and Simmons
should apply retroactively. J.A. 248-49. Indeed, under
Simmons, the maximum punishment to which Appellant
was exposed for the 1996 Conviction was eight months, which
would render that conviction nonqualifying as a felony drug
offense under § 841(b)(1)(B).
April of 2013, Appellant, now represented by counsel, filed a
request for authorization to file the second § 2255
motion, along with an Alternative Petition, which included a
request for relief pursuant to 28 U.S.C. §
2241. See J.A. 295-309 (the
"§ 2241 Petition"). He sought review of the
§ 2241 Petition by way of the § 2255(e) savings
clause, contending, "[Section] 2255 has never provided
an avenue for [Appellant] to challenge his unlawful sentence.
[Section] 2255 relief is -- and always has been --foreclosed
for him on the [Simmons] issue presented in this
Petition . . . ." Id. at 302.
this court denied Appellant's request for authorization
to file the second § 2255 motion, see Order,
In re Wheeler, No. 13-220 (4th Cir. filed April 15,
2013), ECF No. 5, we did not address the § 2241
Petition, which remained pending in district court. Four
months later, we held that Simmons applies
retroactively on collateral review. See Miller v. United
States, 735 F.3d 141 (4th Cir. 2013).
district court then stayed Appellant's § 2241
Petition pending resolution of our panel decision in
United States v. Surratt, No. 14-6851. On July 31,
2015, a divided panel of this court held that a petitioner
who received a sentence of life without parole based on a
prior conviction rendered nonqualifying after
Simmons and Miller could not pass through
the savings clause and have his § 2241 petition heard on
the merits. See United States v. Surratt, 797 F.3d
240, 269 (4th Cir. 2015), reh'g en banc granted,
Dec. 2, 2015. The majority in Surratt distinguished
our decision in In re Jones, which granted savings
clause relief after setting forth a three part test based on
the legality of a prisoner's conviction, but not his
sentence. See 226 F.3d 328, 333-34 (4th Cir. 2000).
that decision, the district court lifted the stay of
Appellant's case, dismissed the § 2255 motion as
second or successive without authorization, and denied the
§ 2241 Petition because it did not meet the requirements
of the savings clause as set forth in Surratt. The
court reasoned, "[Appellant] does not challenge the
legality of his conviction. . . . Because [his] challenge is
confined to the legality of his sentence the §
2241 petition will be denied." J.A. 363 (emphasis
Appellant filed a notice of appeal, this court voted to
rehear Surratt en banc, thereby vacating the panel
decision, see 4th Cir. Local Rule 35(c)
("Granting of rehearing en banc vacates the previous
panel judgment and opinion . . . ."), and held
Appellant's appeal in abeyance pending that en banc
decision. However, ultimately the en banc court concluded
that Surratt's appeal was moot after President Obama
commuted his sentence. See United States v. Surratt,
855 F.3d 218, 219 (4th Cir. 2017). Appellant's case was
then removed from abeyance. We now address the district
court's decision that Appellant did not meet the savings
clause requirements de novo, unbound by this court's
panel decision in Surratt. See Fontanez v.
O'Brien, 807 F.3d 84, 86 (4th Cir. 2015); Local Rule
§ 2241 Petition, Appellant lodges a claim for relief
from an alleged illegal sentence and explains he was entitled
to have that claim heard by virtue of the savings clause.
Section 2255(e) provides a means for petitioners to apply for
a traditional writ of habeas corpus pursuant to § 2241.
An application for a writ of habeas corpus in behalf of a
prisoner who is authorized to apply for relief by motion
pursuant to this section, shall not be entertained if it
appears that the applicant has failed to apply for relief, by
motion, to the court which sentenced him, or that such court
has denied him relief, unless it also appears that the
remedy by motion is inadequate or ineffective to test the
legality of his detention.
28 U.S.C. § 2255(e) (emphasis supplied).
raises two main arguments as to why he is entitled to a
merits determination of the § 2241 Petition. First, he
contends the savings clause is not jurisdictional and
therefore, because the Government argued in the district
court that Appellant satisfied the savings clause, it has
waived any such challenge and precluded the courts from