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Phelps v. Andrews

United States District Court, E.D. North Carolina, Western Division

November 19, 2019

TERRANCE R. PHELPS, Petitioner,
v.
JUSTIN ANDREWS, Respondent.

          ORDER

          TERRENCE W. BOYLE' CHIEF UNITED STATES DISTRICT JUDGE

         On May 18, 2018, Terrance R. Phelps ("petitioner"), an inmate at F.C.I. Butner, filed pro se a petition for writ of habeas corpus under 28 U.S.C. § 2241. [D.E. 1]. After conducting initial review under 28 U.S.C. §2243, the court allowed the action to proceed. [D.E. 5]. On June 28, 2019, respondent filed a motion to dismiss [D.E. 13] and a memorandum in support [D.E. 14]. Pursuant to Roseboro v. Garrison. 528 F.2d 309, 310 (4th Cir. 1975) (per curiam), the court issued a "Rule 12 Letter" notifying petitioner about the motion to dismiss, the consequences of failing to respond, and the response deadline. [D.E. 15]. Petitioner filed duplicate responses in opposition. See [D.E. 16, 17]. For the reasons discussed below, the court will grant respondent's motion to dismiss.

         Background:

         On March 5, 2008, pursuant to a written plea agreement, petitioner pleaded guilty in the United States District Court for the Middle District of North Carolina to one count of possession with intent to distribute cocaine base (crack), in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) (Count 1), and possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 2). See United States v. Phelps. No. 1:07-CR-00408-JAB-l, Plea Agreement [D.E. 18] (M.D. N.C. Mar. 5, 2008). The government filed notice of its intent to seek an enhanced sentence pursuant to 21 U.S.C. § 851 in reliance on petitioner's 2005 North Carolina conviction for felony possession with intent to sell and deliver cocaine. See id, Notice [D.E. 24] (M.D. N.C. Feb. 5, 2009). Petitioner was found to be a career offender under section 4B1.1 of the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") and sentenced to a term of 240 months' imprisonment on Count 1 and a consecutive term of 60 months' imprisonment on Count 2. See id, J. [D.E. 26] (M.D. N.C. Mar. 5, 2009); Pet. [D.E. 1] at 6. Petitioner did not appeal.

         On March 12, 2014, petitioner filed through counsel a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255, arguing he was improperly sentenced as a career offender. See id, Mot. [D.E. 29] (M.D. N.C. Mar. 12, 2014). On November 16, 2016, the sentencing court dismissed the motion. Id., Order [D.E. 42] (M.D. N.C. Nov. 16, 2016). Petitioner did not appeal.

         In his prior section 2241 petition, petitioner argued he was "innocent o[fj the 851, and 4b 1.1 career offender enhancement." See Phelps v. Andrews. No. 5:17-hc-02063-D, [D.E. 1-1] at 3, 7-12 (E.D. N.C. Mar. 17, 2017). After finding that petitioner failed to demonstrate that section 2255 was inadequate or ineffective to test the legality of his detention under the relevant "savings clause" test for 28 U.S.C. § 2255(e), the court dismissed the petition without prejudice, and denied a certificate of appealability. See id, Order [D.E. 3] (E.D. N.C. Sept. 20, 2017). Petitioner did not appeal.

         In the instant section 2241 petition, petitioner contends that, pursuant to United States v. Wheeler. 886 F.3d 415 (4th Cir. 2018) ("Wheeler'"), a section 2241 petition is the proper method to challenge his sentencing as a career offender under U.S.S.G. § 4B1.1. See Pet. [D.E. 1-1] at 5, 6. In support of his argument, petitioner relies upon, among other cases, Mathis v. United States. 136 S.Ct. 2243 (2016) ("Mathis'"): United States v. Newbold. 791 F.3d 455 (4th Cir. 2015) ("Newboid"); United States v. Davis.720 F.3d 215 (4th Cir. 2013) ("Davis'"): United States v. Simmons. 649 F.3d 237 (4th Cir. 2011) ("Simmons"! See Pet. Attach. [D.E. 1-1] at 6-7.

         Respondent argues that the cases upon which petitioner seeks to rely cannot satisfy the test under Wheeler to show that a section 2255 motion is inadequate or ineffective. See Resp't Mem. [D.E. 14] at 6-8. Respondent also argues that a career offender enhancement of a sentence under the advisory Guidelines, even if later invalidated, is not a "fundamental defect" for the purposes of a section 2241 habeas petition. Id. at 8 (citing United States v. Foote. 784 F.3d 931, 936 (4th Cir. 2015) ("Foote"'): Lester v. Flournov. 909 F.3d 708, 715 (4th Cir. 2018) ("Lester")).

         In his response, petitioner again asserts that he was wrongly sentenced as a career offender. See [D.E. 16, 17] (citing Rosales-Mireles v. United States. 138 S.Ct. 1897 (2018) ("Rosales-Mireles, v): Molina-Martinez v. United States. 136 S.Ct. 1338 (2016) ("Molina-Martinez, v): Carachuri-Rosendo v. Holder. 560 U.S. 563 (2010) ("Carachuri-Rosendo'"): Lester. 909 F.3d 708; Wheeler. 886 F.3d 415: United States v. Jefferson. 747 Fed.Appx. 165 (4th Cir. 2019) ("Jefferson")).[1]

         Discussion:

         Section 2241 empowers the court to grant habeas relief to a prisoner who "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(a), (c). However, prisoners that are "convicted in federal court are required to bring collateral attacks challenging the validity of their judgment and sentence by filing a motion to vacate sentence pursuant to 28 U.S.C.A. § 2255." In re Vial. 115 F.3d 1192, 1194 (4th Cir. 1997) (en banc).

         Although petitioner filed the instant petition under section 2241, he challenges the validity, not the execution, of his sentence. Thus, petitioner generally must seek relief under section 2255. See United States v. Poole. 531 F.3d 263, 270 (4th Cir. 2008); In re Jones. 226 F.3d 328, 332-33 (4th Cir. 2000) (per curiarn) ("Jones"): In re Vial. 115 F.3d at 1194. Petitioner "may file a habeas petition under § 2241 only if the collateral relief typically available under § 2255 'is inadequate or ineffective to test the legality of his detention.'" Prousalis v. Moore. 751 F.3d 272, 275 (4th Cir. 2014) (quoting the "savings clause" of 28 U.S.C. § 2255(e)).

         Under the section 2255(e) "savings clause" test announced in Wheeler, section 2255 relief is "inadequate or ineffective" to test the legality of a sentence 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 ...

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