United States District Court, E.D. Virginia, Alexandria Division
LEONLE M. BRINKEMA UNITED STATES DISTRICT JUDGE
Before the Court is Michael Ray Johnson's ("Johnson" or "petitioner") Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 ("petition") [Dkt. No. 1], Oct. 2, 2015. In his petition Johnson argues that his designation as an armed career criminal, which resulted in the fifteen year mandatory minimum term of imprisonment being imposed, violates the Supreme Court's recent holding in Johnson v. United States, 135 S.Ct. 2551 (2015). In its opposition, the government argues that the Court lacks jurisdiction to consider this petition because its claims are not cognizable under § 2241. See Response to Petition for Writ of Habeas Corpus [Dkt. No. 7], Jan. 15, 2016 ("Gov. Resp."). Johnson has filed a reply in support of his petition. Opp'n to Response [Dkt. No. 9], Feb. 2, 2016 ("Reply"). For the reasons that follow, the petition will be dismissesd.
Johnson was indicted in the Eastern District of North Carolina on September 22, 2010 on one count of Distribution of a Quantity of Cocaine in violation of 21 U.S.C. § 841(a)(1) and one count of Possession of a Firearm by a Felon in violation of 18 U.S.C. § 922(g)(1). Petition at 3; see also Gov. Resp. at 2. He pleaded guilty to both counts on March 1, 2010. Gov. Resp. at 2. A federal public defender was appointed to represent him throughout his criminal case. Petition at 4.
On November 8, 2011, Johnson was sentenced. Id. During sentencing, the court relied upon three prior convictions to designate Johnson an armed career criminal pursuant to 18 U.S.C. § 924(e)(1) ("ACCA"); all of petitioner's prior convictions were for serious drug offenses: a state conviction from March 1990 for manufacturing cocaine and two state convictions for possessing cocaine with the intent to sell and for selling and delivering cocaine from February 1992 and March 1993. Gov. Resp. at 2 (citing United States v. Johnson, No. 2:10-cr-47, Dkt. No. 71 (E.D. N.C. Jan. 9, 2013)). Johnson was sentenced to the mandatory minimum under the ACCA of 180 months of incarceration for the possession of a firearm count and a concurrent term of 168 months of incarceration for the distribution count. Petition at 4; Gov. Resp. at 2.
On appeal, Johnson raised numerous challenges to his conviction and sentence, including an argument that the prior convictions relied upon by the trial court did not qualify as ACCA predicate convictions. In rejecting this argument, the Fourth Circuit explained, "Johnson's three prior North Carolina drug convictions qualify as 'serious drug offenses' under § 924 because, at the time of the convictions, each offense was punishable by a maximum often years1 imprisonment. Johnson's argument is thus without merit." United States v. Johnson, 490 F.App'x 566, 567 (4th Cir. 2012).
After losing his direct appeal, Johnson filed his first motion under 28 U.S.C. § 2255. United States v. Johnson. No. 2:10-cr-47, Dkt. No. 66 (E.D. N.C. Oct. 25, 2012)). In his § 2255 motion, Johnson made the same argument about his prior offenses under the ACCA that he raised on direct appeal, as well as an ineffective assistance of counsel argument. Id. at 5-6. The Eastern District of North Carolina summarily rejected both arguments, dismissed the motion, and denied granting a certificate of appealability. United States v. Johnson. No. 2:10-cr-47, Dkt. No. 75 (E.D. N.C. Apr. 23, 2013)). Johnson did not appeal that decision.
In his §2241 petition, Johnson raises two arguments. First, he contends that he should not have been designated an armed career criminal in light of Johnson. Second, he repeats the argument raised in his direct appeal, that his prior convictions were insufficient predicates under the ACCA. Petition at 8. In response, the government argues that because Johnson is unable to show that § 2255 would be "inadequate or ineffective" for his claims, the Court accordingly lacks jurisdiction to consider the petition under § 2241. Gov. Resp. at 4.
A. Standard of Review
A motion pursuant to 28 U.S.C. § 2255 provides the primary means of collateral attack on the imposition of a federal conviction and sentence. Rice v. Rivera. 617 F.3d 802, 807 (4th Cir. 2010) ("[I]t is well established that defendants convicted in federal court are obliged to seek habeas relief from their conviction and sentences through § 2255."). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") restricts the jurisdiction of the district courts to hear second or successive applications for § 2255 federal habeas corpus relief by establishing a "gatekeeping mechanism." Felker v. Turpin, 518 U.S. 651, 657 (1996). Under that gatekeeping mechanism, "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A).
A federal inmate may not proceed under 28 U.S.C. § 2241 unless he demonstrates that the remedy afforded by § 2255 "is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255 (e). For example, "attacks on the execution of a sentence are properly raised in a § 2241 petition." In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997). Nonetheless-and of particular importance here-the Fourth Circuit has emphasized that "the 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." Id. (internal citations omitted). As such, a federal inmate may proceed under § 2241 to challenge his conviction or sentence "in only very limited circumstances." United States v. Poole. 531 F.3d 263, 269 (4th Cir. 2008).
The Fourth Circuit has announced a three-part test to determine whether a petition challenging the lawfulness of a conviction or sentence can be brought under § 2241:
Section 2255 is inadequate and ineffective to test the legality of a conviction when: (1) at the time of the 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 § 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 ...