United States District Court, E.D. North Carolina, Western Division
RAYMOND R. JENNINGS, Petitioner,
JUSTIN ANDREWS, Respondent.
TERRENCE W. BOYLE CHIEF UNITED STATES DISTRICT JUDGE
a former federal inmate, filed this petition for a writ of
habeas corpus pro se pursuant to 28 U.S.C. §
2241. The matter now is before the court on respondent's
motion to dismiss (DE 12) for lack of jurisdiction pursuant
to Federal Rule of Civil Procedure 12(b)(1). Petitioner did
not respond. In this posture, the issues raised are ripe for
On June 17, 2005, petitioner pled guilty pursuant to a
written plea agreement to bank robbery by violence and aiding
and abetting the same, in violation of 18 U.S.C. §
2113(a)(2). [Case No. 1:05-cr-15, Doc. 15: Plea Agreement;
Doc. 31: Judgment]. Petitioner was designated as a career
offender under U.S.S.G. § 4B1.1. See [Id., Doc.
42: Presentence Report]. On January 4, 2006, th[e] Court
sentenced Petitioner to 151 months' imprisonment. See
[Id., Doc. 31]. The Court entered judgment on
January 19, 2006. [Id.]. Petitioner appealed, and
the Fourth Circuit affirmed his conviction and sentence on
December 18, 2006. United States v. Jennings, 210
Fed.Appx. 314 (4th Cir.2006). The Fourth Circuit issued its
mandate on January 11, 2007, and Petitioner did not file a
petition for writ of certiorari with the Supreme Court.
Jennings v United States, No. 1:12-cv-289-MR. 2013
WL 2632601. at * 1 (W.D. N.C. June 12, 2013). On October 14,
2011, petitioner filed a motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255 in the
sentencing court seeking relief pursuant to the Fourth
Circuit's decision in United States v. Simmons,
649 F.3d 237 (4th Cir. 2011). Id. The sentencing
court denied petitioner's § 2255 motion as
time-barred. Id. at *3. The sentencing court,
however, additionally noted that even if petitioner's
action were not time-barred, he still would not have been
entitled to relief because "he received a sentence that
was less than the statutory maximum sentence allowed even
without the sentencing enhancement." Id.
(citation omitted). Petitioner appealed, and the Fourth
Circuit dismissed the appeal. United States v.
Jennings, 589 Fed.Appx. 182 (4th Cir. 2015).
subsequently was placed on supervised release. See United
States v. Jennings, No. 1:17-CR-00161 -CCE (M.D. N.C.
Oct. 31, 2018). On October 31, 2018, the sentencing court
revoked petitioner's supervised release, and petitioner
was committed to the custody of the Federal Bureau of Prisons
("BOP") for a period of 13 months, followed by a
six month period of supervised release. Id.
January 9, 2019, petitioner filed the instant petition for a
writ of habeas corpus pro se pursuant to 28 U.S.C.
§ 2241. Petitioner asserts that he no longer qualifies
as a career offender pursuant to the Fourth Circuit's
decision in Simmons, and that the BOP is using his
state court offenses "to enhance [his] current
revocation sentence which is causing [petitioner] to serve
more time and remain in an extreme custody
classification" in violation of Woodall v.
FBOP, 432 F.3d 235 (3rd Cir. 2005). See (Pet. p. 7).
Petitioner, additionally, raises claims pursuant to the First
Step Act and asserts that the BOP did not "consider the
five factors from 18 U.S.C. § 3621(B)... as evidenced by
[petitioner's] unsigned reentry plan." (Id.
p. 8). Because petitioner raised claims pursuant to the First
Step Act, the court appointed the Federal Public Defender
pursuant to the court's standing order 19-SO-3. On July
9, 2019, petitioner was released from federal custody.
See (DE 14, 16); www.bop.gov (last visited
on Nov. 19, 2019).
18, 2019, respondent moved to dismiss petitioner's
Simmons-related claims for lack of jurisdiction
pursuant to Rule 12(b)(1) and moved to dismiss
petitioner's remaining claims as moot. On July 30, 2019,
the court directed petitioner to show cause as to why this
action should not be dismissed as moot given his release from
federal custody. On August 5, 2019, the Federal Public
Defender responded on behalf of petitioner and stated that
petitioner's Simmons claim is not rendered moot
by petitioner's release because petitioner still is
subject to a term of supervised release. The Federal Public
Defender, however, conceded that petitioner's remaining
claims were rendered moot by his release. As a result, the
court DISMISSES all of petitioner's claims, with the
exception of his Simmons claim, as MOOT. Petitioner
did not otherwise respond to respondent's motion to
petitioner filed his action under 28 U.S.C. § 2241, he
is in fact attacking the legality, rather than the execution
of, his conviction and sentence. The court may not consider a
section 2241 motion challenging the legality of a
petitioner's conviction and sentence unless "the
remedy by [section 2255] motion is inadequate or ineffective
to test the legality of his detention." 28 U.S.C. §
2255(e); In re Vial, 115 F.3d 1192, 1194 (4th Cir.
1997). Section 2255 "is inadequate and 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 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): see In re Jones, 226 F.3d 328, 333-34
(4th Cir. 2000). Section 2255 is "not rendered
inadequate or ineffective merely because ... an individual is
procedurally barred from filing a [section] 2255
motion." Vial, 115 F.3d at 1194 n.5.
petitioner is unable to satisfy the fourth prong of the
Wheeler test, which requires that the sentence
present an error sufficiently grave to be deemed a
fundamental defect. Id. at 429. Alleged erroneous
career offender designations imposed under the
post-United States v. Booker, 543 U.S. 220, 245
(2005), advisory guidelines are not cognizable on federal
habeas review because such errors do not amount to a
fundamental defect resulting in a complete miscarriage of
justice. Lester v. Flournoy, 909 F.3d 708.715-16
f4th Cir. 2018): United States v. Foote, 784 F.3d
931.942-43 (4th Cir. 2015); United States v. Booker,
543 U.S. 220, 245 (2005) (holding the sentencing guidelines
are advisory): Bacon v. Entzel, No. 3:18-CV-148.
2019 WL 3418781. at *5-6 (N.D. W.Va. June 28. 2019). Because
petitioner was sentenced as a career offender under the
post-Booker advisory guidelines on January 4, 2006,
his alleged sentencing error does not rise to the level of a
"fundamental defect" and petitioner cannot satisfy
the fourth prong of the Wheeler test.
the fact that petitioner has not satisfied the criteria set
forth in Wheeler for demonstrating that § 2255
is an "inadequate or ineffective remedy," he must
proceed with his claim pursuant to § 2255. See
Wheeler, 886 F.3d at 429. The court, however, cannot
convert this § 2241 petition into a § 2255 petition
because petitioner previously filed such a petition. A second
or t successive § 2255 petition may not be
brought prior to the United States Court of Appeals for the
Fourth Circuit certifying that the new petition contains
either newly discovered evidence or relies upon "a new
rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable." 28 ...