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Mubin v. United States

United States District Court, E.D. Virginia, Norfolk Division

August 16, 2016

NASIR MUBIN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal Action No. 2:04cr16

          MEMORANDUM OPINION AND ORDER

          Raymond A. Jackson United States Dlstrict Judge

         Before the Court are two petitions filed by Nasir Mubin ("Petitioner"): (1) a Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241 (2:15cv365, ECF No. 1) and (2) a Supplement to Motion to Vacate Sentence Under 28 U.S.C. § 2241; Alternative Petition for Relief under 28 U.S.C. § 2255(e); Alternative Petition for Writ of Coram Nobis; and Alternative Petition for Writ of Audita Querela (2:04crl6, ECF No. 382). Petitioner seeks to challenge his sentence in both petitions on the same grounds in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). For reasons discussed below, Petitioner's motions are DENIED.

         I. FACTUAL AND PROCEDURAL HISTORY

         On June 1, 2004, Petitioner pled guilty to Count One of the Indictment charging him with Conspiracy to Distribute and Possess with Intent to Distribute 100 Grams or More of Heroin, in violation of 21 U.S.C. § 846, § 841(a)(1), and § 841(b)(1)(B). As part of his Plea Agreement, Petitioner received an enhanced advisory guideline range because of his extensive criminal history and designation as a "career offender" under the United States Sentencing Guidelines ("Guidelines").

         Petitioner has prior convictions for: Possession of a Sawed-Off Shotgun (1992); Driving on a Suspended License (1992); Robbery (two counts) (1993); Robbery and Attempted Grand Larceny From a Person (1993); (Failure to Appear 1993); Receiving Stolen Property (1993); Destruction of Property (1993); and Conspiracy to Distribute Imitation Controlled Substances (MDMA) (2003). As a result, Petitioner accumulated 16 criminal history points in his sentencing guideline computation, resulting in a total offence level of 31 and criminal history category of VI. On October 20, 2004, the Court sentenced Petitioner to 166 months imprisonment, below the advisory guideline range of 188 to 235 months, to be served concurrently with another sentence imposed by the Circuit Court of Virginia Beach. Petitioner did not object at that time to his career offender designation.

         Petitioner filed two separate petitions. On July 27, 2015, Petitioner submitted a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Three days prior on July 24, 2015, Petitioner filed a Supplement to Motion to Vacate Sentence Under 28 U.S.C. § 2241; Alternative Petition for Relief under 28 U.S.C. § 2255(e); Alternative Petition for Writ of Coram Nobis; and Alternative Petition for Writ of Audita Querela. Petitioner argues his sentence should be vacated because he was improperly classified as a career offender under § 4B1.1 of the Guidelines. Petitioner relies on the United States Supreme Court's recent ruling in Johnson v. United States, 135 S.Ct. 2551 (2015), which held the Armed Career Criminal Act of 1984's ("ACCA") residual clause defining a violent felony unconstitutionally vague and thereby finding sentences enhanced by the ACCA unconstitutional. Johnson announced a new substantive constitutional rule and therefore applies retroactively for collateral review in ACCA cases. Although Petitioner received an enhanced sentence for his predicate offenses under the Sentencing Guidelines, not the ACCA, Petitioner reasons that the "crime of violence" language stated in U.S.S.G. § 4B1.2 resembles the language found in the unconstitutional vague residual clause of the ACCA. Mot. to Vacate 4-5, 2:04crl6, ECF No 382. Petitioner requests that the Court vacate his sentence under Johnson and hold a resentencing hearing. Id. at 7.

         On December 3, 2015, the Government filed a Response in Opposition to Petitioner's § 2241 Motion. On February 22, 2016, the Government also filed a Response in Opposition to Petitioner's § 2255 Motion. In both briefs, the Government argues that Petitioner cannot obtain relief under Johnson because he was sentenced under the Guidelines, not the ACCA. The Government also contends that Petitioner's request is time-barred, procedurally defaulted, and cannot succeed on the merits. On December 21, 2015 Petitioner filed a Reply conceding that he cannot obtain post-conviction relief other than through § 2255 but reiterating that his sentence should be vacated under Johnson.

         II. LEGAL STANDARDS

         A. 28 U.S.C. § 2241

         A federal prisoner seeking to challenge the execution and duration of his confinement without challenging the underlying conviction may file a habeas corpus petition pursuant to 28 U.S.C. § 2241. Section 2241 petitions generally must be brought in the district in which the prisoner is confined. See In re Jones, 226 F.3d 328 (4th Cir. 2000). District courts are limited to granting habeas relief to prisoners "within their respective jurisdictions." See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 497 (1973).

         As discussed below, a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner may collaterally challenge the legality of his detention. Jones, 226 F.3d at 332. However, Congress created a "savings clause" in § 2255 to allow a federal prisoner to file a § 2241 petition if the remedy under § 2255 is "inadequate or ineffective to test the legality of his detention."" 28 U.S.C. § 2255(e); see also Prousalis v. Moore, 751 F.3d 272, 275 (4th Cir. 2014). "If a federal prisoner brings a § 2241 petition that does not fall within the scope of this 'savings clause, ' then the district court must dismiss the 'unauthorized habeas motion ... for lack of jurisdiction.'" United States v. Surratt, 797 F.3d 240, 247 (4th Cir. 2015) (quoting Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010).

         Simply because the petitioner cannot obtain relief under § 2255 does not render the motion "inadequate or ineffective." Rather the petitioner must show (1) at 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 § 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 gatekeeping provisions of § 2255 because the new rule is not one of constitutional law. Jones, 226 F.3d at 333-34. B. 28 U.S.C. § 2255 Petitioner also seeks relief under Section 2255 of Title 28 of the United States Code. It provides in pertinent part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255. In a proceeding to vacate a judgment of conviction, the petitioner bears the burden of proving his or her claim by a preponderance of the evidence. Miller v. United States,261 F.2d 546, 547 (4th Cir. 1958). Additionally, pro se filers, such as Petitioner, are entitled to more liberal construction of their pleadings, particularly when alleging civil rights claims. SeeGordon v. Leeke,574 F.2d 1147, 1151 (4th Cir. 1978), cert, denied,439 U.S. 970 (1978) (providing that a pro se petitioner is entitled to ...


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