United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
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.
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).
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.
Standard of Review
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
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.
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. 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.
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. 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
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.
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. ...