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Spivey v. Warden FMC Butner

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

November 20, 2019

TONY C. SPIVEY, Petitioner,



         On April 10, 2019, Tony C. Spivey ("petitioner"), an inmate at F.M.C. Burner, filed pro se a petition for writ of habeas corpus under 28 U.S.C. § 2241. [D.E. 1]. The court now conducts its initial review under 28 U.S.C. § 2243 and, for the reasons discussed below, dismisses the petition for lack of jurisdiction.


         On October 25, 2011, in the United States District Court for the Eastern District of Virginia, petitioner pleaded guilty to one count of Conspiracy to Distribute and Possess with Intent to Distribute Heroin, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A). See United States v. Spivey, No. 4:11-cr-00055-AWA-DEM-19, Plea Agreement [D.E. 468] (E.D. Va. Oct. 25, 2011). Petitioner was deemed a career offender under section 4B1.1 of the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") based on "one prior conviction for a 'crime of violence' (Virginia robbery) and one prior conviction for a controlled substance offense (possession with intent to distribute cocaine)." Id. Order [D.E. 1525]. Because the United States agreed under the terms of the plea agreement not to seek enhanced penalties based on petitioner's prior felony drug convictions, the advisory sentencing range was 262 to 327 months' imprisonment, rather than a statutory mandatory minimum of twenty years to life. See id., [D.E. 773]. On February 28, 2012, petitioner was sentenced to 262 months' imprisonment. Id., J. [D.E. 814]. Petitioner did not appeal.

         On June 13, 2016, in reliance upon Johnson v. United States, 135 S.Ct. 2551 (2015) ("Johnson"), [1] petitioner moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Id. Mot. [D.E. 1433]. On August 21, 2017, finding petitioner's Johnson arguments as to his sentence were foreclosed by Beckles v. United States, 137 S.Ct. 886, 895 (2017) ("Beckles"), [2] the sentencing court denied the section 2255 motion. Id., Order [D.E. 1525]. Petitioner appealed. Id., [D.E. 1527]. On December 28, 2017, the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") dismissed petitioner's appeal in an unpublished opinion. Id., [D.E. 1547].


         Petitioner argues: 1) his career offender status is unconstitutionally vague; and 2) his failure to directly appeal was due to counsel's refusal to file an appeal. See Pet. [D.E. 1] at 6-7. Petitioner contends that, pursuant to Sessions v. Dimaya, 138 S.Ct. 1204 (2018) ("Dimaya"), [3] his 1989 Virginia conviction for Armed Bank Robbery is "too broad" to be a predicate offense for a career offender finding. Id. at 12-13 (citing, in relevant part, Mathis v. United States, 136 S.Ct. 2243 (2016) ("Mathis''); Descamps v. United States, 133 S.Ct. 2276 (2013) ("Descamps"); Shepard v. United States, 544 U.S. 13 (2005) ("Shepard”); Leocal v. Ashcroft. 543 U.S. 1 (2004) ("Leocal"); United States v. Simms, 914 F.3d 229, 232 (4th Cir. 2019) ("Simms"); United States v. Winston, 850 F.3d 677 (4th Cir. 2017) ("Winston”) United States v. Torres-Miguel, 701 F.3d 165, 166 (4th Cir. 2012) ("Torres-Miguel”); Garcia v. Gonzales, 455 F.3d 465, 467 (4th Cir. 2006) ("Garcia”); United States v. Davis, 903 F.3d 483, 484 (5th Cir. 2018), cert granted. 139 S.Ct. 782, 202 L.Ed.2d 511 (2019), and affd in part, vacated in part, remanded. 139 S.Ct. 2319 (2019), and reh'g granted in part, No. 16-10330, 2019 WL 5954948 (5th Cir. Nov. 12, 2019) ("Davis").

         Petitioner asserts that, under United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018) ("Wheeler"), a section 2241 habeas petition is the proper method to challenge his career-offender sentence. Id. at 14-15. Petitioner contends that Davis. Simms. Winston, and Dimaya are substantive changes of law rendering his Guidelines career-offender sentence a "fundamental defect." Id. at 15.

         As to his second argument, petitioner contends that, under Garza v. Idaho. 139 S.Ct. 738 (2019) ("Garza"), his counsel was constitutionally ineffective by failing to file an appeal despite petitioner's explicit request on the day of sentencing. See Id. at 16.

         Legal Standard:

         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).

         Here, petitioner 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 curiam) ("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)); see In re Vial, 115 F.3d at 1194 n.5 ("[T]he remedy afforded by § 2255 is not rendered inadequate or ineffective merely because an individual has been unable to obtain relief under that provision [ ] or because an individual is procedurally barred from filing a § 2255 motion." (citations omitted)).

         Under the "Jones test," section 2255 relief is "inadequate or ineffective" if:

(1) [A]t the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner's direct appeal and first ยง 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 ...

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