United States District Court, W.D. Virginia, Roanoke Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE
Scott Mattingley, a prisoner proceeding pro se,
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2255. (Dkt. 101). The matters before the Court
are Mattingley's motion to voluntarily withdraw this
action, (dkt. 112), Mattingley's motion for recusal,
(dkt. 99), Respondent's motion for waiver of
attorney-client privilege, (dkt. 113), and Respondent's
motion for an extension of time to file a response to
Mattingley's petition, (dkt. 115).
December 1, 2016, Mattingley pled guilty to one count of
securities fraud pursuant to 15 U.S.C. § 77q(a). (Dkt.
56). As part of his plea agreement, Mattingley waived his
right to collaterally attack his conviction. (Dkt. 55 at 8).
On November 7, 2018, Mattingley filed a § 2255 petition.
(Dkt. 101). He raised four grounds for relief: (1) forcing
him to serve his sentence in prison violates the Eighth
Amendment; (2) ineffective assistance of counsel; (3)
judicial bias; and (4) prosecutorial misconduct. Mattingley
also filed a motion for recusal, (dkt. 99), and Respondent
filed a motion for waiver of attorney-client privilege, (dkt.
113), as well as a motion for an extension of time to file a
response to Mattingley's petition. (Dkt. 115).
Mattingley has filed three letters addressed to two different
federal judges in this district. (Dkts. 109, 110, 112). In
the letters, Mattingley informs the judges that his only
request is to be allowed to serve the remainder of his
sentence in home confinement. In his second letter of
December 26, 2018, addressed to U.S. Magistrate Judge Hoppe,
Mattingley states: “All I am asking for is to finish my
sentence on home confinement to get the medical care I had
prior to my incarceration.” (Dkt. 110 at 3). In his
latest letter of January 14, 2019, addressed to Chief Judge
Urbanski, Mattingley states that if his sentence cannot be
“changed or redone to home confinement, ” he
“request[s] [his] 2255 to be withdrawn.” (Dkt.
112 at 1).
construe Mattingley's most recent letter, (dkt. 112), as
a motion to voluntarily withdraw his petition pursuant to
Federal Rule of Civil Procedure 41(a)(1)(A)(i). Rule
41(a)(1)(A)(i) allows a litigant to voluntarily dismiss an
action without a court order by filing a notice of dismissal
before the opposing party serves an answer or motion for
summary judgment. Here, Respondent has not filed an answer or
motion for summary judgment. Therefore, I will grant the
motion to voluntarily withdraw the petition and will dismiss
the petition without prejudice.
Availability of § 2255 Remedy
respect to Mattingley's request for transfer to home
confinement, such relief is outside the confines of §
2255. Generally, a court may only grant relief under §
2255 if it finds a lack of jurisdiction, constitutional
error, or a fundamental error of law. See United States
v. Addonizio, 442 U.S. 178, 184-85 (1979). A fundamental
error of law “does not provide a basis for collateral
attack unless the claimed error constituted a fundamental
defect which inherently results in a complete miscarriage of
justice.” Id. at 185. As a threshold matter,
sentencing errors are not cognizable in § 2255
proceedings absent “extraordinary circumstances.”
United States v. Pregent, 190 F.3d 279, 284 (4th
asserts that he should be permitted to serve the remainder of
his term of imprisonment in home confinement because of his
medical needs. By his own acknowledgment, he does not seek to
challenge the constitutionality, legality, or duration of his
sentence or raise any other fundamental error in his
proceedings. Rather, Mattingley seeks only to alter the
location of his confinement. (See, e.g., dkt. 109 at
2 (“On my 2255 all I am asking for is home confinement
to finish my sentence . . . I am not asking for anything else
. . . .”)). Thus, Mattingley's claim does not fall
within any of the grounds for relief enumerated in §
Alternate Ground for Relief
I construe Mattingley's letters and § 2255 motion as
a motion to modify his sentence pursuant to 18 U.S.C. §
3582, I am still unable to grant relief.
request to modify a sentence to home confinement is governed
by 18 U.S.C. § 3582(c)(1)(B), which allows modification
of a sentence “to the extent otherwise expressly
permitted by statute.” United States v. Clark,
8 F.Supp.2d 560, 561 (W.D. Va. 1998). Federal law provides
that a “sentence cannot be modified once imposed”
except under very limited circumstances. United States v.
Cardosa, 606 F.3d 16, 19 (1st Cir. 2010) (citation
omitted); see Clark, 8 F.Supp.2d at 561. Those
“extremely narrow” circumstances are: “(1)
upon motion of the Director of the Bureau of Prisons; (2) as
permitted by statute or Federal Rule of Criminal Procedure 35
(‘Rule 35'); (3) where the relevant sentencing