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Henderson v. Wilson

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

August 26, 2019

JASON LEWIS HENDERSON, Petitioner,
v.
ERIC WILSON, Respondent.

          MEMORANDUM OPINION (DISMISSING § 2241 FOR LACK OF JURISDICTION)

          HENRY E. HUDSON, SENIOR UNITED STATES DISTRICT JUDGE

         Jason Lewis Henderson, 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. 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.

         I. Procedural History

         On 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.

         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.

         On 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).[2] (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.

         In his § 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, 7.)[3] As discussed below, Henderson 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. 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).[4] "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).[5]

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

         Here, 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).[6] 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 Simmons ...


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