United States District Court, E.D. Virginia, Richmond Division
A. Gibney, Jr., Judge
Waddy, a federal inmate proceeding pro se, submitted
a 28 U.S.C. § 2241 Petition. ("§ 2241
Petition," ECF No. I.) The Government filed a Motion to
Dismiss. (ECF No. 9.) For the reasons set forth below, the
Government's Motion to Dismiss will be GRANTED and the
§ 2241 Petition will be DISMISSED WITHOUT PREJUDICE for
want of jurisdiction.
March 10, 2015, in this Court, Waddy pled guilty to one count
of possession with the intent to distribute twenty-eight
grams or more of cocaine base. See Plea Agreement,
United States v. Waddy, No. 3:15CR14 (E.D. Va. filed
Mar. 10, 2015), ECF No. 19. The Presentence Report
("PSR") prepared before sentencing found Waddy to
be a career offender under § 4B1.2 of the United States
Sentencing Guidelines because he had two prior controlled
substance offenses. See id. PSR ¶ 21,
ECF No. 28. Although the applicable advisory guidelines range
was 188 to 235 months of incarceration, see Id. PSR
¶ 77, on June 1, 2015, the Court sentenced Waddy to 144
months. See Id. J. 2, ECF No. 35. Waddy did not
appeal nor did he file a motion under 28 U.S.C. § 2255
to vacate, set aside, or correct his sentence with the Court.
§ 2241 Petition, Waddy challenges his sentence based on
the career offender guidelines. (See ECF No. I, at
Waddy raises the following claim for relief:
Claim One: "In light of Mathis v. United
States, 136 S.Ct. 2243, 2248 (2016), Petitioner is not a
career offender because his prior New York drug conviction
used as a predicate is not a 'controlled substance
specifically, Waddy argues that his career offender sentence
is improper because his prior conviction of criminal
possession of 12 ounces of cocaine, in violation of N.Y.
Penal Law §220.16(1), no longer qualifies as a valid
predicate "controlled substance offense" under
§ 4B1.2(b). (ECF No. 1-1, at 10-14.) In essence, Waddy
contends that N.Y. Penal Law § 220.16 is an
"indivisible statute" defining one crime, and thus,
requires the categorical approach delineated in Mathis v.
United States, 136 S.Ct. 2243, 2248 (2016).
(Id. at 10-14.) As discussed below, Waddy fails to
demonstrate that he may use § 2241 to obtain relief.
Motions under 28 U.S.C. § 2255 Compared to Petitions
under 28 U.S.C. § 2241
motion pursuant to 28 U.S.C. § 2255 "provides the
primary means of collateral attack" on the imposition of
a federal conviction and sentence, and such motion must be
filed with the sentencing court. See Pack v. Yusuff,
218 F.3d 448, 451 (5th Cir. 2000) (quoting Cox v.
Warden, Fed. Det. Or. , 911 F.2d 1111, 1113
(5th Cir. 1990)). A federal inmate may not proceed under 28
U.S.C. § 2241 unless he or she demonstrates that the
remedy afforded by 28 U.S.C. § 2255 "is inadequate
or ineffective to test the legality of his detention."
28 U.S.C. § 2255(e). "For example, attacks on the
execution of a sentence are properly raised in a § 2241
petition." In re Vial, 115 F.3d 1192, 1194 n.5
(4th Cir. 1997) (citing Bradshaw v. Story, 86 F.3d
164, 166 (10th Cir. 1996); Hanahan v. Luther, 693
F.2d 629, 632 n.1 (7th Cir. 1982)). Nevertheless, the United
States Court of Appeals for the Fourth Circuit has emphasized
that "the remedy afforded by § 2255 is not rendered
inadequate or ineffective merely because an individual has
been unable to obtain relief under that provision or because
an individual is procedurally barred from filing a §
2255 motion." Id. (citations omitted).
Fourth Circuit has stressed that an inmate may proceed under
§ 2241 to challenge his or her conviction "in only
very limited circumstances." United States v.
Poole, 531 F.3d 263, 269 (4th Cir. 2008) (citation
omitted) (internal quotation marks omitted). The Fourth
Circuit recently expanded the longstanding "controlling
test," id, as follows:
[W]e conclude that § 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 retroactive change, the sentence now presents
an error sufficiently grave to be deemed a fundamental
United States v. Wheeler, 886 F.3d 415, 429 (4th
Cir. 2018) (citations omitted), cert, denied, 138
S.Ct. 1318 (2019).
Analysis of Waddy's 28 U.S.C. § 2241
Waddy challenges the legality of his sentence. Waddy fails to
satisfy the second prong of Wheeler. Specifically,
Waddy fails to demonstrate that the "settled substantive
law changed and was deemed to apply retroactively on
collateral review," and, that, "due to this
retroactive change, the sentence now presents an error
sufficiently grave to be deemed a fundamental defect."
United States v. Wheeler,886 F.3d 415, 429 (4th
Cir. 2018.) Waddy suggests that Mathis v. United
States,136 S.Ct. 2243, 2248 (2016), entitles him to
relief on his sentence because the New York prior drug
offense used to designate him a career offender is ...