United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (GRANTING RESPONDENT'S MOTION
E. HUDSON, SENIOR UNITED STATES DISTRICT JUDGE
Montero Felder, 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. 10.) 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.
of 2007, Felder pled guilty to one count of conspiracy to
possess with intent to distribute cocaine and cocaine base in
the United States District Court for the Western District of
North Carolina ("Sentencing Court"). See Felder
v. United States, Nos. 5:12-cv-56-RLV,
5:06-cr-22-RLV-CH-2, 2015 WL 1602076, at *1 (W.D. N.C. Apr.
9, 2015.) In his Plea Agreement, Felder agreed that 1.5
kilograms of cocaine and cocaine base were foreseeable to him
and that his base offense level for the United States
Sentencing Guidelines ("USSG") was 38. Id.
The Government previously had filed a Notice of Intention to
Seek Enhanced Penalties under 21 U.S.C. § 851, and the
Plea Agreement noted that Felder's statutory minimum and
maximum sentences were twenty years to life. Plea Agreement
¶ 4, United States v. Felder, No.
5:06-cr-22-RLV-CH-2 (W.D. N.C. filed June 19, 2007); ECF No.
370; see Id. ECF No. 29.
Presentence Report ("PSR") was prepared prior to
his sentencing and the probation officer calculated his total
offense level to be 38 based on the quantity of drugs
attributable to him in his Plea Agreement and on a two-level
enhancement for possession of a firearm during the course of
the conspiracy. Felder, 2015 WL 1602076, at *1
(citation omitted). Despite having nine criminal history
points, Felder was not found to be a career offender.
Id. at *2 (citation omitted). Felder's criminal
history category was IV. Id. Felder's applicable
advisory guidelines range was 324 to 405 months of
incarceration. Id. (citation omitted). The
Sentencing Court sentenced Felder to 324 months of
incarceration, the very bottom of the advisory range.
Id. (citation omitted). Felder appealed; however,
the United States Court of Appeals dismissed the appeal based
on the waiver of appeal provision in Felder's knowing and
voluntary Plea Agreement. Id. (citation omitted).
filed a motion under 28 U.S.C. § 2255 to vacate, set
aside, or correct his sentence in the Sentencing Court on May
2, 2012. Id. In his § 2255 motion, Felder
argued that the PSR improperly calculated both his offense
level and more relevant here, that "the series of
offenses for which he had previously been convicted between
2000 and 2003 should not have been included in his criminal
history score because the offenses do not meet the definition
of felony drug offense' under 21 U.S.C. §
802(44)" and United States v. Simmons, 649
F.3d 237 (4th Cir. 2011). Id. at *2 & n.2 (citation
omitted). The Sentencing Court rejected his claim, noting
inter alia, that Felder's § 2255 motion was
untimely, barred by his valid plea agreement, procedurally
barred, and lacked merit because "it is well settled
that the 'rule of Simmons has no bearing upon
the calculation of petitioner's criminal history category
under the Sentencing Guidelines.' White v.
United States, No. 4:1 l-cv-83-FL-l, 2013 WL 97414, at
*3 (E.D. N.C. Jan. 8, 2013)." Id. at *2-4 &
n.2. The Fourth Circuit dismissed his appeal. United States
v. Felder, 610 Fed.Appx. 320 (4th Cir. 2015).
9, 2017, Felder filed a second § 2255 motion, again
raising a claim under Simmons. See Felder v.
United States, Nos. 5:17-cv-105-FDW,
5:06-cr-22-FDW-DSC-2, 2018 WL 442868, at *1 (W.D. N.C. Jan.
16, 2018). The Sentencing Court dismissed his § 2255
motion as successive and unauthorized. Id. at *3.
§ 2241 Petition, Felder once again contends that under
Simmons, his prior convictions do not qualify as
felony drug offenses under § 851 or for criminal history
points. (See ECF No. 1, at 3.) As discussed below, Felder 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
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
Analysis of Felder's 28 U.S.C. ...