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Turner v. Wilson

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

November 13, 2017

HARVEY TURNER, #17391-424, Petitioner,
v.
ERIC WILSON, Warden, Federal Correctional Institution Petersburg, Respondent.

          REPORT AND RECOMMENDATION

          DOUGLAS E. MILLER, UNITED STATES MAGISTRATE JUDGE.

         Petitioner Harvey Turner, a federal inmate incarcerated in Petersburg, Virginia, was convicted in 2005, in the Northern District of Illinois of various gun and drug-related crimes. At sentencing, he was found to be a career offender, and the guideline calculation for his sentence was adjusted upwards accordingly. He is currently serving a total of 292 months in prison. He filed this petition for a writ of habeas corpus under 28 U.S.C. § 2241, seeking a recalculation of his sentence, a resentencing hearing, or his release from prison. (ECF Nos. 1, 3). His petition argues that, following the Supreme Court's decision in Mathis v. United States, 136 S.Ct 2243, 2243-71 (2016), he is no longer eligible for career offender status and that his sentence was therefore wrongly enhanced. Respondent has moved to dismiss the petition. (ECF No. 8). Because Turner's petition fails to state a retroactive change in the law that would make innocent the conduct underlying his conviction, the court should DISMISS Turner's petition under § 2241 for lack of jurisdiction.

         I. STATEMENT OF THE CASE

         Turner pled guilty in 2005 in the United States District Court for the Northern District of Illinois to charges of unlawful possession of a firearm by a felon, possession of a controlled substance-specifically, crack cocaine-with intent to deliver, and possession of a firearm in relation to a drug trafficking crime. See Turner v. Wilson, No. 2-.14CV597, 2015 WL 6693079, at *2 (E.D. Va. Oct. 28, 2015) (dismissing Turner's most recent federal habeas filing in this court). The district court found during sentencing that Turner qualified as a career criminal under § 4Bl.l(a) of the Sentencing Guidelines[1] and that his guideline range for imprisonment should therefore be adjusted up to 292 to 365 months. Id. Turner, through his attorney, agreed that the enhancement should apply to him. Id. The court sentenced Turner to 292 months' imprisonment. Id.

         Turner unsuccessfully appealed his sentence to the United States Court of Appeals for the Seventh Circuit. Id. He then moved in the sentencing court under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Id. He alleged his counsel had been ineffective and that the sentencing court's determination that he qualified for sentence enhancement as a career criminal was due to incorrect information. Id. The district court dismissed the motion on the grounds that Turner had not challenged his career offender status during his appeal to the Seventh Circuit. Id. The Seventh Circuit upheld the dismissal of Turner's motion. Id.

         This court has previously catalogued the series of postconviction petitions, appeals, and motions for relief Turner sought after the dismissal of his first § 2255 motion. Id. at *2-*3. In his last § 2241 petition to this court, Turner again challenged his sentence because of the sentencing court's determination of his career offender status, this time claiming support from Johnson v. United States, 135 S.Ct. 2551, 2551-84 (2015). Turner, 2015 WL 6693079, at *3. This court dismissed his petition for lack of jurisdiction. Id. at *1, *7.

         Turner later twice moved in the Seventh Circuit for leave to file a second motion for relief under § 2255. That court dismissed both motions because the Johnson case would not have affected the sentencing court's finding that Turner was a career criminal. Order, Turner v. United States, No. 15-3006 (7th Cir. October 13, 2015); Order, Turner v. United States, No. 16-2144 (7th Cir. June 14, 2016).

         Turner remains incarcerated at Federal Correctional Institution Petersburg in the Eastern District of Virginia. See 28 U.S.C. § 127; Am. Pet. at 1 (ECF No. 3). He brings the present petition under 28 U.S.C. § 2241. Pet. at 1-2 (ECF No. 1) . He argues his sentence has been made improper by the Supreme Court's holding in Mathis, 136 S.Ct at 2243-71. See Pet. at 5 (ECF No. 1). He argues Mathis announced a new rule of constitutional law that made the sentencing court's enhancement of his sentence unlawful and that he therefore qualifies for relief under § 2241. Id. at 10-12.

         II. ANALYSIS

         a. The savings clause in § 2255 of the Habeas Corpus Statute is narrowly construed.

         Federal prisoners must ordinarily challenge their sentence by motion under 28 U.S.C. § 2255, "which channels collateral attacks by federal prisoners to the sentencing court (rather than to the court in the district of confinement) so that they can be addressed more efficiently." In re Jones, 226 F.3d 328, 332 (4th Cir. 2000) (quoting Triestman v. United States, 124 F.3d 361, 373 (2d Cir. 1997)). Section 2255(h) prohibits successive motions for relief except in certain circumstances. See 28 U.S.C. § 2255(h). This gatekeeping provision, enacted with the Antiterrorism Effective Death Penalty Act ("AEDPA"), limits successive motions to those that are timely and based upon either (1) newly discovered evidence or (2) a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court. United States v. Poole, 531 F.3d 263, 266 n. 4 (4th Cir. 2008) (citing 28 U.S.C. § 2255(h)).

         "[W]hen § 2255 proves 'inadequate or ineffective to test the legality of . . . detention, ' a federal prisoner may seek a writ of habeas corpus pursuant to § 2241." In re Jones, 226 F.3d at 333 (quoting 28 U.S.C. § 2255(e)).[2] The Fourth Circuit has interpreted this so-called "savings clause" of § 2255 narrowly. Claims challenging the validity of a federal prisoner's conviction or sentence may be brought under § 2241 only when § 2255 is "inadequate or ineffective to test the legality of [the prisoner's] detention." § 2255(e).[3] And, § 2255 is inadequate or ineffective only when:

(1) at the time of conviction, settled law of [the Fourth 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 ...

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