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McCall v. United States

United States District Court, W.D. North Carolina, Charlotte Division

August 21, 2019



          Frank D. Whitney, Judge

         THIS MATTER is before the Court on Petitioner's Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241. (Doc. No. 1).

         I. BACKGROUND

         On 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).

         Prior 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).

         Subsequent 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.[1] United States v. Powell, 691 F.3d 554, 559-60 (4th Cir. 2012).

         On 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).

         In 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”).

         Petitioner 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 resentencing hearing.


         Petitioner 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 ...

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