United States District Court, W.D. North Carolina, Statesville Division
MEMORANDUM OF DECISION AND ORDER
D. Whitney Chief United States District Judge.
MATTER is before the Court on Petitioner's
Petition for Relief under 28 U.S.C. § 2241. [Doc. 1].
Also before the Court is Petitioner's Memorandum of
Additional Authority [Doc. 3]; Petitioner's Supplemental
Memorandum in Support of Relief under 28 U.S.C. §§
2255(e) and 2241 [Doc. 17]; and the Government's Response
in Support of Habeas Petition [Doc. 28]. Petitioner is
represented by Ann Hester of the Federal Defenders of Western
2004, a jury found Petitioner Phillip Tyrone Morrison
(“Petitioner”) guilty of conspiring to possess
with intent to distribute powder and crack cocaine, 21 U.S.C.
§§ 841, 846; possession with intent to distribute
cocaine, 21 U.S.C. § 841; and possession of a firearm in
furtherance of a drug-trafficking offense, 18 U.S.C. §
924(c). [Criminal No. 5:03-cr-4-FDW-20, Docs. 340, 365].
Morrison participated in an extensive drug-trafficking
conspiracy, traveling to New York to buy cocaine, regularly
cooking powder cocaine into crack cocaine for distribution;
and using a firearm during the course of his
drug-distribution activities. [CR Doc. 745 ¶¶ 14,
27, 31-32, 47]. The United States notified the Petitioner and
the Court in accordance with 21 U.S.C. § 851 that it
intended to seek an enhanced penalty based on
Petitioner's prior convictions for “felony drug
offenses” -- possession with the intent to sell and
deliver cocaine and delivery of cocaine. [CR Doc. 346].
to sentencing, the probation officer completed a Presentence
Report, in which the probation officer calculated a
preliminary Sentencing Guideline range of imprisonment of
between 360 months and life in prison for Morrison's
drug-trafficking offenses. This range was based on a total
offense level of 38 and a criminal-history category of VI.
[CR Doc. 745, ¶ 114]. The probation officer also noted
that Petitioner was subject to a statutory mandatory-minimum
sentence of life in prison for the conspiracy offense because
he had previously been convicted of two felony drug offenses.
[Id. at ¶ 113]. In accordance with 21 U.S.C.
§ 841(b)(1)(A), based on Petitioner's prior
convictions of felony drug offenses, the Court sentenced
Petitioner to life in prison for the drug-trafficking
offenses, and a consecutive term of 60 months in prison for
the § 924(c) offense. [CR Doc. 477 at 2]. Petitioner
appealed and the Fourth Circuit affirmed this Court's
judgment. United States v. Martinez, 190 Fed.Appx.
321 (4th Cir. 2006). In August 2007, Petitioner filed a
motion to vacate, set aside, or correct sentence under 28
U.S.C. § 2255, which the Court denied. [Civil No.
5:07-cv-90, Docs. 1, 29]. In November 2014, Petitioner filed
a second § 2255 motion to vacate, seeking relief under
United States v. Simmons, 649 F.3d 237 (4th Cir.
2011) (en banc), which the Court denied as an unauthorized
second or successive petition. [Civil No. 5:12-cv-102, Docs.
in June 2013, Petitioner filed the petition currently before
the Court under 28 U.S.C. § 2241, seeking relief from
his life sentence. This case was held in abeyance awaiting
the decision of the United States Supreme Court in United
States v. Surratt, No. 14-6851, and then in United
States v. Wheeler, No. 16-6073. [Doc. 23]. On June 3,
2019, after Wheeler was decided and the stay lifted,
and an extension of time to respond granted, the Government
responded to the petition, agreeing with Petitioner that his
sentence should be vacated and that Petitioner should be
resentenced. [Doc. 28].
STANDARD OF REVIEW
to Rule 4(b) of the Rules Governing Section 2255 Proceedings,
sentencing courts are directed to promptly examine motions to
vacate, along with “any attached exhibits and the
record of prior proceedings” in order to determine
whether a petitioner is entitled to any relief. After having
considered the record in this matter, and because the
Government concedes that Petitioner is entitled to relief,
the Court finds that this matter can be resolved without an
evidentiary hearing. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
2255 is generally the proper means of collaterally attacking
the validity of a federal conviction or sentence. In re
Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (en banc). By
contrast, Section 2241 is a means of attacking the way a
sentence is executed. Tolliver v. Dobre, 211 F.3d
876, 877 (5th Cir. 2000). The Fourth Circuit recognized in
In re Jones, 226 F.3d 328 (4th Cir. 2000), however,
that where Section 2255 is inadequate or ineffective to test
the legal validity of a petitioner's conviction, the
“savings clause” of Section 2255 permits a
petitioner to seek relief under Section 2241. In re
Jones, 226 F.3d at 333. While the savings clause can be
invoked to permit Section 2241 relief where Section 2255 is
inadequate or ineffective, it only applies to permit such
relief, when (1) at the time of conviction, settled law of
the Fourth Circuit or the Supreme Court established the
legality of the conviction; (2) subsequent to the
prisoner's direct appeal and first Section 2255 motion,
the substantive law changed such that the conduct of which
the prisoner was convicted is deemed not to be criminal; and
(3) the prisoner cannot satisfy the gatekeeping provisions of
Section 2255 because the new rule is not one of
constitutional law. Rice v. Rivera, 617 F.3d 802,
807 (4th Cir. 2010). Here, the parties and the Court agree
that Petitioner properly seeks relief under Section 2241.
21, section 851 provides for enhanced sentences based on any
prior “felony drug offense.” Section 802(44)
defines that term as “an offense that is punishable by
imprisonment for more than one year under [any state or
federal law relating to narcotics or marijuana].” In
Simmons, the Fourth Circuit held that an offense
qualifies as a “felony drug offense” for purposes
of § 841(b)(1), and is punishable by more than one year
in prison, only if the defendant could have received a
sentence of more than one year in prison, overturning its
earlier decisions in United States v. Jones, 195
F.3d 205 (4th Cir. 1999), and United States v. Harp,
406 F.3d 242 (4th Cir. 2005). In Jones and
Harp, the Fourth Circuit had held that offense is
punishable by more than one year in prison if any
defendant could receive a term of imprisonment of more
than one year upon conviction for that offense. See
Simmons, 649 F.3d at 247. In Simmons, the
Fourth Circuit held that, for a prior felony conviction to
serve as a predicate offense, the individual defendant must
have been convicted of an offense for which that
defendant could be sentenced to a term exceeding one
year. Simmons, 649 F.3d at 243.
the Court enhanced Petitioner's sentence based on a 1995
conviction for possession with intent to sell and deliver
cocaine and delivery of cocaine and a 1994 conviction of
aiding and abetting the delivery of cocaine. Petitioner's
1995 offenses were Class H felony offenses. Civil No.
5:13-cv-84, Doc. 1-1. Based on Petitioner's prior record
level of III, the highest sentence Petitioner could have
received under the North Carolina Structure Sentencing Act,
N.C. Gen. Stat. § 15A-1340.17(c) and (d), was 12 months
in prison. Petitioner could not have received a
sentence of more than one year. As such, although
Jones and Harp were good law at the time of
this Court sentenced Petitioner, Simmons decided
that Petitioner's prior conviction was not a
“felony drug offense” for purposes of 21 U.S.C.
§ 841(b)(1) because it was not punishable by more than
one year in prison.
Government also concedes that Petitioner is entitled to
relief from his sentence under § 2241 because of the
erroneous application of a mandatory minimum. In United
States v. Wheeler, the Fourth Circuit held that a
defendant (1) whose sentence was affected by application of a
mandatory-minimum term of imprisonment that Simmons
later held should not have applied and (2) whose motion to
vacate would be a second or successive motion to vacate may
obtain sentencing relief under § 2241. 886 F.3d 415,
429, 433-34 (4th Cir. 2018). Petitioner was subject to a
statutory mandatory minimum of life in prison based on prior
convictions of offenses that no longer constitute
“felony drug offenses” and cannot support an
enhancement under 21 U.S.C. § 841(b)(1)(A). Without the
prior “felony drug offense” conviction,
Petitioner would have been subject to a statutory
mandatory-minimum term of 20 years in prison for his
drug-trafficking offenses. As such, Petitioner is entitled to
sentencing relief under Wheeler.
Petitioner is entitled to relief under Section 2241, the
Court will grant the Section 2241 petition and vacate
Petitioner's conviction under 21 U.S.C. §§ 841,
846 and 18 U.S.C. § 924(c). The Court will also,
therefore, schedule a resentencing ...