United States District Court, E.D. Virginia, Alexandria Division
LIAL D. MCKOY, Petitioner,
ERIC D. WILSON, Respondent.
MEMORANDUM OPINION AND ORDER
GERALD BRUCE LEE, UNITED STATES DISTRICT JUDGE
THIS MATTER is before the Court on Eric D. Wilson ("Respondent")'s Motion to Dismiss for Lack of Subject-Matter Jurisdiction and for Failure to State a Claim, or in the alternative, Motion for Summary Judgment. (Docs. 8, 9). Lial D. McKoy ("Petitioner"), a federal inmate proceeding pro se, challenges his sentence of 294 months by way of a habeas corpus action brought pursuant to 28 U.S.C. § 2241. (Doc. 1).
There are four issues before the Court. The first issue is whether Petitioner's § 2255 Motion was inadequate or ineffective to test the legality of his conviction, thus triggering availability of relief under § 2241. The second issue is whether Petitioner's Plea Agreement forecloses relief under § 2241. The third issue is whether this Court should hold this matter in abeyance pending the Fourth Circuit's decision in United State v. Surratt. The fourth issue is whether Johnson v. United States provides Petitioner an avenue for relief under § 2241.
The Court holds that Petitioner's § 2255 Motion was not inadequate or ineffective to test the legality of his conviction because he is not "actually innocent" of the conduct of which he is convicted. Second, the Court holds that Petitioner's Plea Agreement forecloses relief under § 2241 because he knowingly and voluntarily waived his right to appeal. Third, the Court holds that Surratt is fundamentally distinguishable from Petitioner's § 2241 claim, and thus this Court need not hold Petitioner's claims in abeyance, pending the Fourth Circuit's decision in Surratt. Fourth, the Court holds that Johnson v. United States, as a rule of constitutional law, does not provide an avenue for relief under § 2241.
Petitioner plead guilty to conspiracy to possess with the intent to distribute cocaine and cocaine base (i.e. crack cocaine) in violation of 21 U.S.C. § 841. Id. According to the statute, Petitioner's conviction exposed him to a possible term of incarceration of ten years to life imprisonment. Id. At his sentencing in the U.S. District Court for the Eastern District of North Carolina, Petitioner was found to be a career offender under the U.S. Sentencing Guidelines, which increased his guideline range of incarceration from a range of 324 months to 405 months, to a range of 360 months to life. Id. However, the sentencing court also credited Petitioner with providing substantial assistance to law enforcement authorities and downwardly departed from the advisory Guidelines. Id. Petitioner did not file a direct appeal; instead, Petitioner filed with the sentencing court a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Id. The sentencing court denied his motion, and the Fourth Circuit affirmed the denial. (Docs. 1, 10).
On September 11, 2009, Petitioner Lial D. McKoy and two other individuals were indicted in the Eastern District of North Carolina for, among other charges, conspiracy to distribute and possess with the intent to distribute five (5) kilograms or more of cocaine and fifty (50) grams or more of cocaine base (i.e. crack cocaine) in violation of 21 U.S.C. § 841 (Count I). (Doc. 10). On January 6, 2010, pursuant to a written plea agreement (the "Plea Agreement"), Petitioner pled guilty to Count I of the Indictment, conspiracy to possess with the intent to distribute cocaine and cocaine base. (Doc. 10, Ex. 1). The Plea Agreement reads, in relevant part:
The defendant agrees . . . [t]o waive knowingly and expressly the right to appeal whatever sentence is imposed, including any issues that relate to the establishment of the advisory Guideline range, reserving only the right to appeal from a sentence in excess of the advisory Guideline range that is established at sentencing, and further to waive all rights to contest the conviction or sentence in any postconviction proceeding, including one pursuant to 28 U.S.C. § 2255, excepting an appeal or motion based upon grounds of ineffective assistance of counsel or prosecutorial misconduct not known to defendant at the time of defendant's guilty plea.
The defendant understands . . . Maximum term of imprisonment: Life . . . Minimum term of imprisonment: Ten (10) years . . . [and that] the Court is not bound by any sentence recommendation or agreement as to the advisory Guideline application.
[T]hat even if a sentence up to the statutory maximum is imposed, defendant may not withdraw the plea of guilty.
Id. In exchange for Petitioner's guilty plea to Count I, the Government agreed to dismiss all remaining counts. Id.
Petitioner was sentenced for Count 1 on January 21, 2011. (Docs. 1, 10). Pursuant to 21 U.S.C. § 841(b)(1)(A), Petitioner was subject to a mandatory minimum term of imprisonment of ten years and a mandatory maximum term of life in prison. (Doc. 10). The Eastern District of North Carolina designated Petitioner as a career offender under § 4B1.1 of the U.S. Sentencing Guidelines ("Guidelines") based on two prior state convictions: (1) for one count of assault with a deadly weapon inflicting serious injury, and (2) for possession with the intent to sell and deliver cocaine. (Docs. 1, 10). For both prior convictions, Petitioner was convicted in North Carolina state court on October 18, 1993 when he was sixteen years of age. Id. At the time, under North Carolina law, assault with a deadly weapon inflicting serious injury was punishable by a presumptive term of imprisonment of three years. See N.C. Gen. Stat. § 14-32(b) (1993). The maximum prison term for the offense was ten years. Id. § 14-l.l(a)(l)(8). Under North Carolina law, possession with the intent to sell and deliver cocaine was also punishable by a presumptive term of imprisonment of three years and a maximum term of ten years. See N.C. Gen. Stat. § 90-90; N.C. Gen. Stat. § 90-95. For the 1993 sentencing, the North Carolina court consolidated the assault and drug possession convictions and imposed a single sentence of six years. (Doc. 10).
The career offender designation resulted in an increase in Petitioner's criminal history category under the Guidelines. (Doc. 10). The designation increased the suggested range of imprisonment for his 2011 sentencing from 324 months to 405 months to 360 months to life. Id. However, because Petitioner gave substantial assistance to law enforcement authorities in other investigations, the sentencing court reduced the advisory Guidelines and imposed a sentence of 294 months. Id. Petitioner did not file a direct appeal. Instead, on August 20, 2012, Petitioner filed an initial § 2255 motion in the United States District Court for the Eastern District of North Carolina alleging, among other things, that he was no longer a career offender under the Sentencing Guidelines based upon Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), and United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). (Doc. 10). While Petitioner's § 2255 motion was still pending, the Fourth Circuit decided Miller v. United States, 735 F.3d 141 (4th Cir. 2013), which had held that Simmons should be retroactively applied. Id. On January, 21, 2014, the North Carolina District Court denied Petitioner's § 2255 motion, holding that the motion was barred by the one-year statute of limitations and by Petitioner's Plea Agreement. Id. The court ruled that Petitioner's waiver of his appellate rights was knowing and voluntary and that his claims fell within the scope of the waiver. Id. Additionally, the court noted that Petitioner did not contend that his waiver was invalid due to any defect in the Rule 11 colloquy; instead, his argument was based solely on the fact that "neither party had any reason to believe that the substantive law would change." Id. The North Carolina District Court held that Petitioner's claims under Simmons were barred by the waiver in his Plea Agreement. Id. Thus, Petitioner's § 2255 motion was dismissed.
Petitioner appealed the dismissal of the § 2255 motion, and the Fourth Circuit affirmed. United States v.McKoy, 597 F.App'x 175 (4th Cir. 2015). On May 13, 2015, Petitioner filed the instant habeas petition in this court, again citing Simmons. (Doc. 1). On August 17, 2015, Petitioner supplemented his § 2241 petition with a citation to Johnson v. United States, 135 S.Ct. 2551 (2015), a Supreme Court case regarding the residual clause of the Armed Career Criminal Act ("ACCA"). Respondent moved to dismiss the Petition on December 4, 2015. (Docs. 8, 9). Petitioner filed a Response on December 22, 2015, in which he requested that the Court grant him leave to amend his petition and to hold this matter in abeyance pending the Fourth ...