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Acklin v. Warden, FCI Petersburg Low

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

November 19, 2018

WILLARD LEE ACKLIN, #22061-056, Petitioner,
v.
WARDEN, FCI PETERSBURG LOW, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          DOUGLAS E. MILLER UNITED STATES MAGISTRATE JUDGE

         Petitioner Willard Lee Acklin ("Acklin") is currently serving a 262-month term of imprisonment pursuant to judgment entered following a 2002 jury verdict rendered in the United States District Court for the Eastern District of North Carolina. After unsuccessfully seeking relief on direct appeal and collateral attack, Acklin filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241. He asks this court to vacate his sentence and resentence him without the enhancement under the Armed Career Criminal Act. Respondent filed a Motion to Dismiss (ECF No. 14) and included the notice to pro se plaintiffs required under Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975). Respondent argues that Acklin's claims are not cognizable under § 2241 and that this court therefore lacks jurisdiction to review them. As explained below, the undersigned recommends that the court dismiss the petition.

         I. Statement of the Case

         In 2002, a jury in the United States District Court for the Eastern District of North Carolina convicted Acklin on two counts: unlawful possession of a weapon by a felon, and unlawful possession of ammunition by a felon. Before sentencing, the court determined that Acklin had three prior state convictions for felonious breaking and entering, felonious first- degree burglary, and common law burglary. The court therefore enhanced his sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), imposing 262 months of imprisonment. See Pet. 3, 8 (ECF No. 1 at 3, 8).

         Acklin pursued a direct appeal in the United States Court of Appeals for the Fourth Circuit, which the court denied on August 1, 2003. United States v. Acklin, 72 Fed.Appx. 26 (4th Cir. 2003) (unpublished Per curiam opinion). Acklin then sought relief under 28 U.S.C. § 2255. The district court dismissed his motion and the Fourth Circuit denied a certificate of appealability and dismissed the appeal. United States v. Acklin, 164 Fed.Appx. 414 (4th Cir. 2006) (unpublished Per curiam opinion). The district court dismissed his second § 2255 petition in 2012. See Pet. 2 (ECF No. 1 at 2). On December 12, 2017, Acklin filed this Petition under § 2241.

         On February 28, 2018, the United States filed its first Motion to Dismiss the petition. (ECF No. 5). In support of its first motion, the government argued that Acklin could not invoke the "savings clause" in § 2255(e) because he could not satisfy the test set out in In re Jones, 226 F.3d 328 (4th Cir. 2000). Mem. Supp. Mot. Dismiss 2-3, Feb. 28, 2018 (ECF No. 6 at 2-3). One month after the government filed its Motion, the Fourth Circuit decided United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), which appeared to expand the availability of § 2241 as an avenue for federal prisoners to challenge the legality of their sentences. The court stayed the proceedings on Acklin's petition pending review of the panel decision in Wheeler by either the Fourth Circuit en banc or the Supreme Court on writ of certiorari. Order, May 30, 2018 (ECF No. 12).

         The Fourth Circuit ultimately denied the petition for rehearing en banc. United States v. Wheeler, 734 Fed.Appx. 892 (4th Cir. 2018). This court then lifted the stay and directed the Respondent to file a new response "articulating its position in light of... Wheeler." Order. Aug. 9, 2018 (ECF No. 13).[1] Respondent timely filed the instant Motion to Dismiss, renewing its Roseboro warning. (ECF No. 14). Acklin responded, (ECF No. 16), and the matter is ripe for decision.

         II. Legal Standard

         28 U.S.C. § 2255 provides the intended vehicle by which federal prisoners may seek to challenge their convictions or sentences by collateral attack. See Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (Per curiam). Only when § 2255 is "inadequate or ineffective to test the legality of... detention" may a federal prisoner pursue relief under § 2241. Id.; § 2255(e). But § 2255 is not rendered "inadequate or ineffective merely because an individual is unable to obtain relief under that provision." In re Jones, 226 F.3d at 333.

         In re Jones recognized a narrow set of circumstances in which § 2255 would be inadequate to test the legality of a prisoner's detention. It established a three-part test for prisoners seeking habeas relief under § 2241. That provision is available if:

(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.

Id. at 333-34.

         In March of 2018, the Fourth Circuit decided Wheeler, reaffirming In re Jones but fashioning a new four-part test for prisoners seeking to invoke the § 2255 savings clause to challenge their sentences under § 2241. See 886 F.3d at 429. Under this test, § 2255 is inadequate and ineffective to test the legality of a sentence when:

(1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the aforementioned settled substantive law-changed and was deemed to apply retroactively on collateral review: (3) the prisoner is unable to meet the gatekeeping provisions of § 2255(h)(2) for second or successive motions; and (4) due to this ...

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