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Smalls v. Warden FMC Butner

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

February 20, 2019

WILLIAM ISAAC SMALLS, Petitioner,
v.
WARDEN FMC BUTNER, Respondent.

          ORDER

          LOUISE W. FLANAGAN, UNITED STATES DISTRICT JUDGE

         Petitioner, a federal prisoner proceeding pro se, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter is before the court on respondent's motion to dismiss (DE 9), filed pursuant to Federal Rule of Civil Procedure 12(b)(1). The motion has been fully briefed and thus the issues raised are ripe for decision. For the reasons explained below, respondent's motion to dismiss is granted, and the petition is dismissed without prejudice.

         BACKGROUND

         On April 14, 2010, petitioner pleaded guilty, pursuant to a written plea agreement, to bank robbery, in violation of 18 U.S.C. § 2113(a) (count one), and possession of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (count two). United States v. Smalls, No. 1:10-CR-8-MR-1 (W.D. N.C. Apr. 14, 2010 & Oct. 18, 2010). T h e s e n t e n c i n g court sentenced petitioner to 178 months' imprisonment on count one and 84 months' imprisonment on count two, and ordered the terms to run consecutively. Id. (Oct. 18, 2010). Petitioner appealed his conviction and sentence, but the Fourth Circuit affirmed. Id. (June 9, 2011). Petitioner filed his first motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on August 20, 2012, which the sentencing court denied. Id. (May 21, 2014). Petitioner filed second motion to vacate on June 27, 2016, arguing that his conviction and sentence on count two in light of Johnson v. United States, 135 S.Ct. 2551 (2015). Id. (June 27, 2016). The sentencing court denied the second motion without prejudice to petitioner seeking authorization from the Fourth Circuit to file a second or successive petition. Id. (July 26, 2016).

         On June 12, 2017, petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner alleges his sentence should be vacated because he no longer qualifies for the career offender enhancement under Mathis v. United States, 136 S.Ct. 2243 (2016). Petitioner also alleges his bank robbery sentence is unreasonable in light of Dean v. United States, 137 S.Ct. 1170 (2017). On May 14, 2018, respondent filed motion to dismiss the petition pursuant to Fed.R.Civ.P. 12(b)(1), arguing the court lacks subject matter jurisdiction.

         DISCUSSION

         A. Standard of Review

         A Rule 12(b)(1) motion challenges the court's subject matter jurisdiction, and the petitioner bears the burden of showing that federal jurisdiction is appropriate when challenged by the respondent. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). The motion may either 1) assert the complaint fails to state facts upon which subject matter jurisdiction may be based, or 2) attack the factual basis for subject matter jurisdiction, apart from the complaint. Bain, 697 F.2d at 1219. Under the former assertion, the moving party contends that the complaint “simply fails to allege facts upon which subject matter jurisdiction can be based.” Id. In that case, “the [petitioner], in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration.” Id. “[T]he facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). When the respondent challenges the factual predicate of subject matter jurisdiction, a court “is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The nonmoving party “must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists.” Id.

         B. Analysis

         As noted, petitioner argues that his sentence should be vacated because he no longer qualifies for the career offender enhancement under Mathis. See U.S. Sentencing Guidelines Manual §§ 4B1.1, 4B1.2 (Nov. 2009) (permitting enhanced sentence where defendant is convicted of a felony that is either a crime of violence or a controlled substance offense and the defendant has at least two prior felony convictions for either a crime of violence or a controlled substance offense). In Mathis, the Supreme Court held that a state burglary conviction could not serve as a predicate conviction for purposes of the Armed Career Criminal Act sentencing enhancement, 18 U.S.C. § 924(e), because it covered a “greater swath of conduct” than generic burglary. 136 S.Ct. at 2250-51. Petitioner argues that the predicate convictions used to designate him a career offender are invalid under the principles set forth Mathis.

         Petitioner also challenges his sentence pursuant to Dean v. United States, 137 S.Ct. 1170 (2017). In Dean, the Supreme Court held that a sentencing court can consider that a defendant is subject to mandatory consecutive sentences under 18 U.S.C. § 924(c) when calculating the appropriate sentence on the predicate offense.[1] 137 S.Ct. at 1178. Petitioner argues the sentencing court did not comply with Dean because it did not consider his consecutive § 924(c) sentence when it imposed the sentence for his predicate bank robbery conviction.

         Finally, in his response to the instant motion to dismiss, petitioner argues his § 924(c) conviction is invalid in light of Johnson v. United States, 135 S.Ct. 2551 (2015). In Johnson, the Supreme Court struck down the residual clause of the Armed Career Criminal Act as unconstitutionally vague.[2] 135 S.Ct. at 2555. The Supreme Court subsequently held that Johnson applies retroactively to cases on collateral review. See Welch v. United States, 136 S.Ct. 1257, 1268 (2016). Petitioner argues that Johnson's holding should be extended to invalidate a similar residual clause found in § 924(c) and that as a result his § 924(c) conviction should be vacated.[3]

         Pursuant to § 2241, a federal court may issue a writ of habeas corpus to a federal or state prisoner if the prisoner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(a), (c)(3). The legality of a federal prisoner's sentence, however, must be challenged under 28 U.S.C. § 2255 unless “the remedy by motion [under § 2255] is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e); see In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (en banc). Although petitioner filed his claim under 28 U.S.C. § 2241, he is in fact attacking the legality, rather than the execution, of his sentence.

         The Fourth Circuit recently addressed the standard for determining when § 2255 is an inadequate or ineffective remedy in the context of sentencing errors. See United States v. ...


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