United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Judge
MATTER is before the Court on Petitioner's Petition for
Writ of Habeas Corpus Under 28 U.S.C. § 2241. (Doc. No.
November 2, 2006, a jury found Petitioner Allen Marshell
McCall Jr. (“Petitioner”) guilty of conspiring to
possess with intent to distribute powder and crack cocaine in
violation of 21 U.S.C. §§ 841 and 846.
(3:05-cr-104, Doc. No. 381). The jury found that at least 5
kilograms of cocaine and at least 50 grams of crack cocaine
were reasonably foreseeable to Petitioner during the course
of his participation in the conspiracy. (3:05-cr-104, Doc.
No. 381 at 3). 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 conviction for a “felony drug
offense”-his possession with intent to sell or deliver
cocaine in May of 2003. (3:05-cr-104, Doc. No. 179).
to sentencing, the probation officer prepared a presentence
report (“PSR”), calculating Petitioner's
total offense level as 32 and his criminal history category
of III, resulting in an advisory Guidelines range of between
151 months and 188 months imprisonment. (3:05-cr-104, Doc.
No. 617, p. 23). The probation officer also noted that
Petitioner was subject to a statutory mandatory-minimum
sentence of 240 months in prison because he had previously
been convicted of a felony drug offense. Id. At
sentencing, the Court adopted the PSR and sentenced
Petitioner to the statutory minimum term of 240 months
imprisonment and the minimum ten-year term of supervised
release. (3:05-cr-104, Doc. No. 507). Petitioner timely
appealed and the Fourth Circuit affirmed this Court's
judgment. States v. McCall, 332 Fed.Appx. 49, 50
(4th Cir. 2009).
to Petitioner's direct appeal, the Fourth Circuit decided
United States v. Simmons, 649 F.3d 237 (4th Cir.
2011). In Simmons, the Fourth Circuit overturned
previous circuit decisions and held that in deciding whether
an offense qualifies as a “felony drug offense”
for purposes of § 841(b)(1), a district court must look
not to the maximum sentence that North Carolina courts could
have imposed for a hypothetical defendant who was guilty of
an aggravated offense or had a prior criminal record, but
instead to the maximum sentence that could have been imposed
on a person with the defendant's actual level of
aggravation and criminal history. Id. at 241. The
basis for this change in circuit precedent was the United
States Supreme Court's decision in Carachuri-Rosendo
v. Holder, 560 U.S. 563 (2010). Approximately one year
after the Simmons decision, the Fourth Circuit, in
United States v. Powell, held that the rule
announced in Carachuri, and applied in
Simmons, was procedural, not substantive, and
therefore did not apply retroactively. United States
v. Powell, 691 F.3d 554, 559-60 (4th Cir. 2012).
August 12, 2012, Petitioner filed a § 2255 motion
contending that he was entitled to relief under
Simmons, 649 F.3d 237 (4th Cir. 2011). (3:12-cv-501,
Doc. No. 1). Petitioner argued that the Fourth Circuit's
holding in Simmons demonstrates that his prior state
felony drug conviction did not qualify him for a section 851
sentencing enhancement. (3:12-cv-501, Doc. No. 1 at 2-3).
This Court denied Petitioner's motion, holding, in
accordance with the Fourth Circuit's decision in
Powell, that Petitioner was not eligible for relief
under § 2255. (3:12-cv-501, Doc. No. 2, pp. 4-5).
August 2013, the Fourth Circuit decided Miller v. United
States, 735 F.3d 141 (4th Cir. 2013), and held that
Simmons was a new rule of substantive criminal law
that applied retroactively to cases on collateral review. The
Fourth Circuit reaffirmed the retroactivity of
Simmons in its recent decision in United States
v. Wheeler, 886 F.3d 415 (stating that, in accordance
with Miller, “Simmons applies
retroactively on collateral review”).
filed the instant petition before the Court under 28 U.S.C.
§ 2241, challenging his sentence under the Fourth
Circuit's decisions in Simmons and
Wheeler. (3:19-cv-231, Doc. No. 1, p. 1). Petitioner
argues that under these decisions, his prior state conviction
does not qualify as a “felony drug offense.”
(3:19-cv-231, Doc. No. 1 at 3). Petitioner requests that this
Court vacate his sentence and impose a reduced sentence of
time served and a supervised release term of five years or,
in the alternative, vacate his sentence and schedule a
challenges the legality, not the execution of his sentence.
“[I]t is well established that defendants convicted in
federal court are obliged to seek habeas relief from their
convictions and sentences through [28 U.S.C.] §
2255.” Rice v. Rivera, 617 F.3d 802, 807 (4th
Cir. 2010). When a federal prisoner is barred from seeking
habeas relief through § 2255, he may still seek a writ
of habeas corpus pursuant to 28 U.S.C. § 2241 through
§ 2255's savings clause, § 2255(e), which is
available when a § 2255 motion “proves inadequate
or ineffective to test the legality of . . .
detention.” In re Jones, 226 F.3d 328, 333
(4th Cir. 2000). Section 2255 is inadequate and ineffective
to test the legality of a sentence when:
(1) at the time of sentencing, settled law of [the Fourth
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.
United States v. Wheeler, 886 F.3d 415, 429 (4th
Cir. 2018) (citation ...