United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Senior U.S. District Judge.
Petitioner John Forrest Ham, Jr., a federal inmate proceeding
pro se, submitted this action as a petition for a writ of
habeas corpus, pursuant to 28 U.S.C. § 2241. Ham cites
United States v. Wheeler. 886 F.3d 415 (4th Cir.
2018) and other cases, contending that he must be resentenced
without the application of the Armed Career Criminal Act
("ACCA"), 18 U.S.C. § 924(e). In response to
the petition, the United States has summarily conceded that
Ham is entitled to sentencing relief under § 2241.
Specifically, the United States asserts that under United
States v. McLeod, 808 F.3d 972 (4th Cir. 2015),
United States v. Hemingway. 734 F.3d 323 (4th Cir.
2013), and Mathis v. United States. 136 U.S. 2243
(2016), Ham no longer meets the requirements of the ACCA, and
his current sentence exceeds the otherwise applicable
statutory maximum. After consideration of the parties'
submissions and court records, the court will require the
United States to show cause why this court has jurisdiction
to grant the requested sentencing relief under § 2241.
currently confined at the United States Penitentiary Lee
County, located in this district. Pursuant to a judgment
entered on September 10, 2010, in Criminal Action No.
6:10-cr-00046-TMC by the United States District Court for
District of South Carolina, Ham stands convicted of
possession of a firearm by a convicted felon, in violation of
18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)
(Count One); carjacking, in violation of 18 U.S.C. §
2119(1) (Count Two); and possession of a firearm during and
in relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1) (Count Three). The Court sentenced Ham to a
total term of 316 months of imprisonment. Based on prior
convictions, Ham's sentence was enhanced pursuant to the
ACCA and the career offender provision of the United States
sentencing guidelines. The judgment was affirmed on appeal.
United States v. Ham, 438 Fed.Appx. 183 (4th Cir.
July 12, 2011) (unpublished).
2012, Ham filed a motion to vacate, set aside or correct the
sentence under 28 U.S.C. § 2255. Among other things, Ham
argued unsuccessfully that his defense counsel was
ineffective for failing to argue that two of his prior
convictions-South Carolina third-degree burglary and assault
and battery of high and aggravated nature
("ABHAN")-did not qualify as prerequisites for
sentence enhancements under the ACCA or the career offender
guideline. See United States v. Ham, Cr. No.
6:10-46-TMC, 2013 WL 4048988 (D. S.C. Aug. 9, 2013). Ham did
not appeal the denial of this § 2255 action.
2017, Ham filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 in this court, claiming
that his federal criminal sentence was unlawfully enhanced,
based on his prior burglary and ABHAN convictions. This court
denied § 2241 relief under In re Jones, 226
F.3d 328, 332 (4th Cir. 2000), construed Ham's submission
as a § 2255 motion, and transferred it to the district
court in South Carolina. See Ham v. United States,
No. 7:17CV00295, 2017 WL 2799893 (W.D. Va. June 27, 2017). In
March 2018, the South Carolina court dismissed Ham's
§ 2255 motion as successive, pursuant to 28 U.S.C.
§ 2255(h). Cr. No. 6:10-cr-00046-TMC, ECF No. 114-15.
Ham did not appeal.
months later, in June 2018, Ham filed a motion to alter or
amend the Court's March 2018 order. Ham contended that
the South Carolina court should construe his submission as a
§ 2241 petition and transfer it back to the Western
District of Virginia for consideration of his unlawful
sentence claim under the recent court of appeals decision in
Wheeler, 886 F.3d 415. While this motion was
pending, in December 2018, Ham filed his current § 2241
petition in this court, raising claims under
January 7, 2019, in the South Carolina case, United States
District Judge Timothy M. Cain denied Ham's motion to
alter or amend, finding his arguments under Wheeler
to be without merit:
. . . Ham contends that he should be allowed to challenge his
sentence in a § 2241 petition pursuant to the savings
clause of § 2255(e) and the holding in Wheeler.
In Wheeler, the Fourth Circuit Court of Appeals
concluded that § 2255(e) provides "an avenue for
prisoners to test the legality of their sentences pursuant to
§ 2241" if a petitioner can demonstrate that §
2255 is inadequate or . ineffective to test the legality of a
sentence. Wheeler, 886 F.3d at 428. Section 2255 is
deemed inadequate or ineffective when a petitioner
establishes that: 1) his sentence was legal under settled law
at the time of sentencing; 2) after petitioner's direct
appeal and first motion under § 2255, the substantive
law changed, and the new law was made retroactive on
collateral review; 3) petitioner is unable to meet the
requirements of § 2255(h)(2) to file a successive motion
under § 2255; and 4) the sentence imposed presents a
fundamental defect due to the change in the law. Id.
The court finds that Ham cannot meet the second prong of
Wheeler. In seeking habeas relief, Ham relies, in part, on
the following cases: Mathis v. United States. 136
S.Ct. 2243, 2257 (2016), United States v. McLeod.
808 F.3d 972 (4th Cir. 2015), and United States v.
Hemingway, 734 F.3d 323, 331 (4th Cir. 2013). The
holdings in Mathis, McLeod, and Hemingway
were not retroactive. See, e.g.. Mathis,
136 S.Ct. at 2257 ("Our precedents make this a
straightforward case. For more than 25 years, we have
repeatedly made clear that application of ACCA involves, and
involves only, comparing elements."); Walker v.
Kassell, 726 Fed.Appx. 191, 192 (4th Cir. 2018) (per
curiam) ("[W]e affiirm because . . . Mathis ...
has not been held retroactively applicable on collateral
review, so [petitioner] may not proceed under §
2241."); Washington v. Moseley,
No.5:18-1292-HMH, 2018 WL 5095148, *3 (D.S.C. Oct. 19, 2018)
(petitioner is unable to satisfy the second prong of the
Wheeler test because McLeod has not been
found by any court to apply retroactively to collateral
challenges); Ladson v. United States, No.
4:09-cr-00226-TLW, 2015 WL 3604220, at *2 (D.S.C. June 5,
2015) (holding that Hemingway is not retroactive);
Mason v. Thomas, No. 0:14-cv-2552-RBH, 2014 WL
7180801, at *4 (D.S.C. Dec. 16, 2014) (same). Because
Ham's habeas petition does not rely on a retroactively
applicable change in substantive law subsequent to his direct
appeal and first § 2255 motion, he cannot use these
cases to satisfy the requirements of Wheeler.
2-3, Ham, Criminal Action No. 6:10-cr-00046-TMC, ECF
No. 131 (record cites omitted). Ham's appeal of Judge
Cain's ruling is currently pending in the Fourth Circuit,
federal prisoner bringing a claim for relief from an
allegedly illegal sentence must normally do so in a §
2255 motion in the sentencing court. Section 2255(e) provides
that a § 2241 habeas petition raising such a
claim "shall not be entertained if it appears that the
applicant has failed to apply for relief, by motion, to the
court which sentenced him, or that such court has denied him
relief, unless it also appears that the remedy by motion
is inadequate or ineffective to test the legality of his
detention." 28 U.S.C. § 2255(e) (emphasis
added). Many circuit courts of appeals, including the Fourth
Circuit, have held that the last phrase in § 2255(e),
known as the savings clause, is jurisdictional.
Wheeler, 886 F.3d at 424-25 (citing Williams v.
Warden, 713 F.3d 1332 (11th Cir. 2013)). In other words,
the savings clause "commands the district court not to
entertain a § 2241 petition that raises a claim
ordinarily cognizable in the petitioner's first §
2255 motion except in . . . exceptional
circumstance[s]." LI at 425 (quoting Williams,
713 F.3d at 1338 (alterations and internal quotation marks
United States has not demonstrated that Ham's claim falls
within the narrow scope of § 2255(e) as required to
allow this court to address it in this § 2241 action.
Moreover, Judge Cain has ruled that Ham does not
qualify under the four-part standard in Wheeler to
have his claim addressed under § 2241. Unless the
savings clause applies to Ham's claim, this court has no
"power to act." Id. Accordingly, the court
will require the United States to show cause why this court
should not dismiss Ham's current § 2241 petition ...