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Everett v. Ormond

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

September 11, 2019

J. RAY ORMOND, Respondent.


          John A.Gibney, Jr. United States District Judge

         Preston Cornelius Everett, a federal inmate proceeding pro se, submitted a 28 U.S.C. § 2241 Petition. ("§ 2241 Petition," ECF No. 1.)[1] The Government filed a Motion to Dismiss. (ECF No. 8.) 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 31, 2005, following a jury trial, "Everett was found guilty of conspiracy to possess with intent to distribute in excess of five (5) kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 [(Count One)], and possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c)(1) [(Count Two)]" in the Alexandria Division of this Court ("Sentencing Court"). United States v. Everett, Nos. 1:05CR19, 1:07Cv 120, 2007 WL 517497, at *1 (E.D. Va. Feb. 12, 2007). "Before Everett's trial, the government had timely filed an Information pursuant to 21 U.S.C. § 851 that established that Everett had previously been convicted of Possession of a Controlled Drug (F) under Virginia Code § 18.2-250, "[2] and "[t]hat offense was a class 5 felony in Virginia, carrying a maximum penalty often years' imprisonment." Id. at *2. Everett was sentenced to "the mandatory minimum sentence of twenty years, based on his prior Virginia drug felony under 21 U.S.C.A. § 841(b)(1)(A) (West 2000 & Supp. 2005) for Count [One] and to sixty months consecutively on Count [Two]." United States v. Everett, 164 Fed.Appx. 392, 393 (4th Cir. 2006).

         Everett appealed, alleging that "his 240-month sentence for Count [One] violated: (1) the Sixth Amendment under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and (2) his due process rights." Id. The United States Court of Appeals for the Fourth Circuit affirmed Everett's sentence. Id.

         Thereafter, Everett filed a motion pursuant to 28 U.S.C. § 2255 ("§ 2255 Motion") in the Sentencing Court, "in which he [sought] to have his conviction and sentence set aside due to ineffective assistance of trial and appellate counsel, defects in the indictment, and his actual innocence." Everett, 2007 WL 517497, at *1. On February 12, 2007, the Sentencing Court dismissed Everett's § 2255 Motion, concluding that his claims lacked merit. Id. at *1-4. Everett appealed, and the Fourth Circuit dismissed the appeal. United States v. Everett, 235 Fed.Appx. 95, 96 (4th Cir. 2007). Subsequently, Everett filed "a number of collateral motions in an effort to have his sentence reduced, none of which were successful," including a recent motion to reduce his sentence pursuant to the First Step Act of 2018. Order 1 & n.2, United States v. Everett, No. 1:05CR19 (E.D. Va. July 2, 2019), ECF No. 259 (summarizing the collateral motions filed by Everett in his federal criminal case).

         In his § 2241 Petition, Everett challenges his sentence and argues that his § 851 enhancement is no longer valid after United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), because his prior Virginia drug conviction does not qualify as a "felony drug offense." (See Mem. Supp. § 2241 Pet. 5, 10, ECF No. 3.) Specifically, Everett raises the following claim for relief:[3]

Claim One: "Because Everett demonstrably meets and satisfies all four [4] enumerated requirements of § 2255(e)'s savings clause, the instant [§ 2241] Petition should be accepted and Everett allowed to challenge the legality of the Sentencing Court's use of a prior Virginia state conviction to enhance his sentence to a mandatory minimum of 20 years." (Mem. Supp. § 2241 Pet. 5 (first alteration in original).)

         As discussed below, Everett 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 ...

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