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Waddy v. Warden, FCI Petersburg

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

August 8, 2019

DAYTON WADDY, Petitioner,
v.
WARDEN, FCI PETERSBURG, Respondent.

          MEMORANDUM OPINION

          John A. Gibney, Jr., Judge

         Dayton Waddy, a federal inmate proceeding pro se, submitted a 28 U.S.C. § 2241 Petition. ("§ 2241 Petition," ECF No. I.)[1] 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.

         I. Procedural History

         On 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.

         In his § 2241 Petition, Waddy challenges his sentence based on the career offender guidelines. (See ECF No. I, at 4.)[2] 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 offense.'" (Id.)

         More 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.

         II. Motions under 28 U.S.C. § 2255 Compared to Petitions under 28 U.S.C. § 2241

          A 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).[3] "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).

         The 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 defect.

United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018) (citations omitted), cert, denied, 138 S.Ct. 1318 (2019).[4]

         III. Analysis of Waddy's 28 U.S.C. § 2241 Petition

         Here, 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 ...


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