United States District Court, W.D. North Carolina, Charlotte Division
MATTER is before the Court on Petitioner's
Petition for Writ of Habeas Corpus filed pursuant to 28
U.S.C. § 2241. (Doc. No. 1).
was indicted in the underlying criminal case with conspiracy
to possess with intent to distribute 50 grams or more of a
mixture and substance containing a detectable amount of
cocaine and five kilograms or more a mixture and substance
containing a detectable amount of cocaine base in violation
of 21 U.S.C. §§ 841(a)(1), 846. The Government
filed a Notice of Intention to Seek Enhanced Penalties
pursuant to 21 U.S.C. §§ 841 and 851 based on
Petitioner's prior convictions for: North Carolina
possession with intent to sell and deliver marijuana on May
14, 1997; North Carolina manufacturing marijuana on May 14,
1997; North Carolina maintaining a dwelling for the keeping
of drugs on May 14, 1997; North Carolina possession of heroin
on May 14, 1997; and New Jersey possession of CDS,
distribution of marijuana/hashish, and
manufacture/distribution of CDS on March 24, 1995.
(3:01-cr-36 Doc. No. 18).
found Petitioner guilty and made specific findings that
Petitioner was responsible for 50 grams or more of a mixture
or substance containing a detectable amount of cocaine base
and five kilograms or more of a mixture or substance
containing a detectable amount of cocaine. (3:01-cr-36 Doc.
Presentence Investigation Report (“PSR”) scored
the base offense level as 38 pursuant to U.S. Sentencing
Guidelines Section 2D1.1. (3:01-cr-36, Doc. No. 290 at ¶
31). Two levels were added because a dangerous weapon was
possessed during the offense. (3:01-cr-36, Doc. No. 290 at
¶ 32). Therefore, the adjusted offense level is 40.
(3:01-cr-36, Doc. No. 290 at ¶ 36). Petitioner also
qualifies as a career offender pursuant to Guidelines Section
4B1.1, however, the unenhanced offense level of 40 is higher
than the career offender offense level of 37 so the total
offense level is 40. (3:01-cr-36, Doc. No. 290 at ¶ 39).
The PSR's criminal history section scored two criminal
history points and a criminal history category of IV.
However, a career offender's criminal history category is
VI. (3:01-cr-36, Doc. No. 290 at ¶ 47, 48). The
resulting guideline range was 360 months to life imprisonment
but, because the statutory term of imprisonment is life, the
guideline term becomes life, and the statutory term of
supervised release was 10 years. (3:01-cr-36, Doc. No. 290 at
¶¶ 67-68, 70-71).
Court adjudicated Petitioner guilty and sentenced him to life
imprisonment and 10 years of supervised release. (3:01-cr-36,
Doc. No. 229). The Fourth Circuit Court of Appeals affirmed,
United States v. Persaud, 87 Fed.Appx. 869
(4th Cir. 2004), and the United States Supreme
Court denied certiorari, Persaud v. United States,
542 U.S. 914 (2004).
filed a § 2255 Motion to Vacate in 2005, case number
3:05-cv-217, which was denied and dismissed. Persaud v.
United States, 2006 WL 2229003 (W.D. N.C. Aug. 3, 2006).
The Fourth Circuit dismissed Petitioner's appeal,
United States v. Persaud, 215 Fed.Appx. 243
(4thCir. 2007), and the Supreme Court denied
certiorari, Persaud v. United States, 551 U.S. 1122
2012, Petitioner filed an application for authorization to
file a second or successive § 2255 petition that the
Fourth Circuit denied, case number 12-281. Petitioner
nevertheless filed the instant Petition through counsel on
August 15, 2012, arguing that the mandatory life sentence
based on the finding that he had two prior convictions for
“felony drug offenses” is contrary to United
States v. Simmons, 649 F.3d 237 (4th Cir.
2011) (en banc). (Doc. No. 1). The Court dismissed
the Petition as an unauthorized second or successive §
2255 Motion to Vacate. Persaud v. United States,
2012 WL 5902557 (W.D. N.C. Nov. 26, 2012). The Fourth Circuit
dismissed in part and affirmed in part in an unpublished
opinion. United States v. Persaud, 517 Fed.Appx. 137
(4th Cir. 2013). However, on certiorari review,
the Government file a brief in support of Petitioner's
argument that the savings clause permits Petitioner to
challenge his sentence under § 2241. The Supreme Court
vacated the Fourth Circuit's judgment and remanded for
further consideration in light of the Government's
position on certiorari. Persaud v. United States,
571 U.S. 1172 (2014). The parties then filed a joint motion
to remand for further consideration in the district court,
which was granted. See (Doc. No. 13).
remand, this Court stayed the case pursuant to United
States v. Wheeler, which is now final, 734 Fed.Appx. 892
(4th Cir. 2018), cert. denied 139 S.Ct.
1318, and this case is ripe for disposition. See
(Doc. No. 21). The Government now concedes that Petitioner is
entitled to resentencing pursuant to Wheeler and
Government concedes that Petitioner's challenge to his
sentence is cognizable under § 2241 pursuant to
Wheeler, that Petitioner does not have the requisite
prior felony convictions to support his enhanced § 851
sentence pursuant to Simmons, and that resentencing
2255 is inadequate and ineffective to test the legality of a
sentence for purposes of the “savings clause”
when: (1) at the time of sentencing, settled law of this
circuit or the Supreme Court established the legality of the
sentence; (2) subsequent to the prisoner's direct appeal
and first § 2255 motion, the aforementioned settled
substantive law changed and was deemed to apply retroactively
on collateral review; (3) the prisoner is unable to meet the
gatekeeping provisions of § 2255(h)(2) for second or
successive motions; and (4) due to this retroactive change,
the sentence now presents an error sufficiently grave to be
deemed a fundamental defect. 28 U.S.C. § 2255(e);
Wheeler, 886 F.3d at 429.
previously filed a § 2255 Motion to Vacate that was
denied on the merits, and the Fourth Circuit denied
authorization to file a second or successive petition
pursuant to § 2255(h). Petitioner is alleging that he is
entitled to relief under a retroactive change in the law and
that Section 2255 is inadequate or ineffective to address the
alleged fundamental sentencing error that resulted in a
minimum mandatory sentence that exceeds the statutory
requirement. Section 2255(e)'s savings clause therefore
applies and the Court will consider Petitioner's
sentencing claim pursuant to § 2241. See
Wheeler, 886 F.3d 415.
time of Petitioner's criminal case, the relevant statute
required a mandatory life sentence for certain offenders who
had two or more prior convictions for a “felony drug
offense.” 21 U.S.C. § 841(b)(1)(A) (2000). A
“felony drug offense” is an offense that is
“punishable by imprisonment for more than one
year…” 21 U.S.C. § 802(44). The Fourth
circuit held in Simmons that an offense is
punishable by imprisonment by more than one year in prison
only if the particular defendant could have received
a sentence of more than one year. 649 F.3d at 247. This
overruled precedent that held that an offense is punishable
by more than a year in prison if any ...