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Felder v. Ormond

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

August 26, 2019

GERARD MONTERO FELDER, Petitioner,
v.
J. RAY ORMOND, Respondent.

          MEMORANDUM OPINION (GRANTING RESPONDENT'S MOTION TO DISMISS)

          HENRY E. HUDSON, SENIOR UNITED STATES DISTRICT JUDGE

         Gerald Montero Felder, 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. 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.

         I. Procedural History

         In June 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.

         A 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).

         Felder 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)"[2] and United States v. Simmons, 649 F.3d 237 (4th Cir. 2011).[3] 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).

         On June 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.

         In his § 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.)[4] As discussed below, Felder 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).[5] "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).[6]

         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).[7]

         III. Analysis of Felder's 28 U.S.C. ...


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