United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DISMISSING § 2241 FOR LACK
E. HUDSON, SENIOR UNITED STATES DISTRICT
Lewis Henderson, 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. 20.) 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.
January 20, 2019, Henderson pled guilty to one count of
possession with the intent to distribute 73.7 grams of a
mixture and substance containing a detectible amount of
cocaine base (Count One) and possession of a firearm in
furtherance of a drug trafficking crime (Count Three) in the
United States District Court for the Middle District of North
Carolina ("Sentencing Court"). See Plea
Agreement ¶ 1, United States v. Henderson, No.
1:09CR333-1 (M.D. N.C. filed Jan. 20, 2010), ECF No. 20. The
Government previously had filed an Information of Prior
Conviction under 21 U.S.C. § 851 that listed two prior
convictions and would have subjected Henderson to a mandatory
life sentence under the 2009 version of 21 U.S.C. §
841(b)(1)(A). See Information of Prior Conviction,
Henderson, No. 1:09CR333-1 (M.D. N.C. filed Oct. 28,
2019). In exchange for his guilty plea, the Government agreed
to withdraw one of the convictions listed in the Information
of Prior Conviction under 21 U.S.C. § 851, lowering the
statutory minimum and maximum sentence for Count One to not
less than twenty years and not more than life imprisonment.
Plea Agreement ¶¶ 2.a, 5, Henderson, No.
1:09CR333-1. In his Plea Agreement, Henderson agreed that he
understood that he would be subject to this statutory minimum
and maximum. Id. ¶ 2.a.
Presentence Report ("PSR") prepared before
sentencing found Henderson to be a career offender under
§ 4B1.2 of the United States Sentencing Guidelines
("USSG") because he had two prior controlled
substance offenses. PSR, Henderson, No. 1:09CR333-1
(M.D. N.C. filed Apr. 08, 2019), ECF No. 78. Henderson's
offense level as a career offender was 37 because, under USSG
§ 4Bl.l(a), his offense statutory maximum was life in
prison. Id. ¶ 20. Even without the § 851
enhancement, Henderson's offense statutory maximum
sentence was life because he agreed in his Plea Agreement
that 73.7 grams of cocaine base were attributable to him.
See 21 U.S.C. § 841(b)(1)(A) (2009). Thus, as a
career offender, Henderson's offense level would have
been 37 with or without the statutory enhancement. Henderson
received an adjustment for acceptance of responsibility,
resulting in a total offense level of 34, and a criminal
history category of VI. PSR¶¶ 21-22, 86,
Henderson, No. 1:09CR333-1. Henderson's
applicable advisory guidelines range was 322 to 387 months
(262 to 327 on Count One, followed by 60 months on Count
Three) of incarceration. Id. ¶ 86. On November
17, 2010, the Sentencing Court entered judgment against
Henderson and sentenced him to 131 months of incarceration on
Count One and a consecutive term of 30 months on Count Three.
See J. 2, Henderson, No. 1:09CR333-1 (M.D.
N.C. Nov. 17, 2010), ECF No. 30.
March 21, 2012, Henderson filed a § 2255 motion in the
Sentencing Court. Henderson, No. 1:09CR333-1 (M.D.
N.C. filed Mar. 21, 2012), ECF No. 38. In his § 2255
motion and his various supplements, Henderson argued,
inter alia, that his career offender designation and
the § 851 enhancement were no longer valid after
United States v. Simmons, 649 F.3d 237 (4th Cir.
2011). (See ECF No. 1-1 at 2.) The
Sentencing Court rejected this claim and concluded that
Henderson's Simmons claim was barred by
United States v. Foote, 784 F.3d 931 (4th Cir.
2015). See R&R 2, Henderson, No.
1:09CR333-1 (M.D. N.C. Oct. 26, 2016), ECF No. 73; Order 1,
Henderson, No. 1:09CR333-1 (M.D. N.C. Nov. 28,
2016), ECF No. 76.
§ 2241 Petition, Henderson once again challenges his
sentence and argues that he is no longer subject to the
§ 851 enhancement based on Simmons because his
prior convictions no longer qualify as "felony drug
offenses." (See ECF No. 1, at 3,
As discussed below, Henderson 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. Del Ctr., 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 Henderson's 28 U.S.C. § 2241
Henderson challenges the legality of his sentence. Henderson
fails to satisfy the second prong of Wheeler.
Specifically, Henderson 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.) Although Henderson argues
that Simmons entitles him to relief on his sentence,
Simmons was decided in 2011, prior to when Henderson
filed his § 2555 motion in 2012. The Fourth Circuit held
that Simmons applied retroactively to cases on
collateral review on August 21, 2013. See Miller v.
United States,735 F.3d 141 (4th Cir.
2015). Henderson raised challenges to his
sentence under Simmons in his first § 2255
motion and supplemented that motion many times between 2012
and 2015 when the Sentencing Court finally dismissed the
motion. Henderson clearly had an opportunity during that time
to supplement his § 2255 motion to argue that