United States District Court, E.D. Virginia, Norfolk Division
REPORT AND RECOMMENDATION
DOUGLAS E. MILLER, UNITED STATES MAGISTRATE JUDGE.
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.
STATEMENT OF THE CASE
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 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.
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.
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.
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
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.
savings clause in § 2255 of the Habeas Corpus Statute is
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)).
§ 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)). 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). 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
(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 ...