United States District Court, W.D. Virginia, Roanoke Division
GLEN E. CONRAD SENIOR UNITED STATES DISTRICT JUDGE
Hubbard, a federal inmate at the United States Penitentiary
in Lee County, Virginia, proceeding pro se, filed these
habeas corpus petitions under 28 U.S.C. § 2241. In his
first petition, Hubbard asserts that in light of United
States v. Descamps. 570 U.S. 254 (2013), his sentence is
unlawful, and the court should now revisit it. In the second,
he contends that his sentence exceeded the statutory maximum
and must be corrected. Upon review of the record, the court
concludes that the petitions must be summarily dismissed for
lack of jurisdiction.
in the United States District Court for the Eastern District
of North Carolina found Hubbard guilty of bank robbery by use
of a dangerous weapon (Count One), possession or use of a
firearm during a crime of violence (Count Two), possession of
stolen money (Count Three), and conspiracy to possess stolen
money (Count Four). United States v. Hubbard, No.
5:88CR00040. On April 21, 1989, the court sentenced Hubbard
to 327 months in prison on Count One, with Counts Three and
Four merged into that count; 60 months in prison on Count
Two, consecutive to the sentence on the other counts; and
three years of supervised release. His appeal was unsuccessful.
United States v. Hubbard, 919 F.2d 734 (4th Cir.
1990), cert, denied. 499 U.S. 969 (1991). Hubbard
also filed a motion to vacate, set aside or correct the
sentence under 28 U.S.C. § 2255 that was denied.
United States v. Hubbard, Nos. CR-88-40;
CA-97-320-BO (E.D. N.C. Aug. 3, 1999), appeal
dism'd. United States v. Hubbard. 210 F.3d
363 (4th Cir. 2000) (unpublished). In July 2014, the United
States Court of Appeals for the Fourth Circuit denied his
motion under 28 U.S.C. § 2244(b)(3)(A) to file a second
or successive § 2255 motion, raising his current claim
first of these § 2241 petitions, Hubbard asserts that
the district court erred in finding him eligible for an
enhanced sentence under the Career Offender provision of the
United States Sentencing Guidelines, based on his prior
convictions. Specifically, Hubbard asserts that, in light of
the holding in Descamps,  his 1976 conviction for
third-degree burglary under Kentucky law no longer qualifies
as a crime of violence, to make it a prior predicate felony
for a Career Offender enhancement. In February of 2015, the
court summarily dismissed the case, holding that Hubbard had
not met the standard under In re Jones. 226 F.3d 328
(4th Cir. 2000) and § 2255(e) to show that he could
challenge his sentence in a § 2241 petition.
second § 2241 petition, No. 7:15CV00599, Hubbard claims
that the court erred in sentencing him to 327 months in
prison, when the maximum sentence allowed under 18 U.S.C.
§ 2113(d) was 300 months (25 years). Again, the court
summarily dismissed the case, holding that Hubbard had not
made the required showings under In re Jone, and
§ 2255(e) to proceed under §2241.
appealed the dismissals of both cases. The court of
appeals found that his claims should be considered under its
recent decisions in United States v. Wheeler, 886
F.3d 415, 426 (4th Cir. 2018), and Lester v.
Flournov. 909 F.3d 708 (4th Cir. 2018), and remanded the
cases "for further consideration of the petition[s],
including any relevant jurisdictional issues."
Hubbard v. Zvch, 747 Fed.Appx. 186 (4th Cir. 2019);
Hubbard v. Ratledge. 747 Fed.Appx. 187 (4th Cir.
2019). This court stayed consideration of the petitions until
the United States Supreme Court denied the United States'
petition for a writ of certiorari in
Wheeler. Thereafter, the United States filed motions
to dismiss the petitions as moot. Hubbard has responded,
making the motions ripe for consideration.
Hubbard filed his § 2241 petitions and for some time
thereafter, he was confined at the United States Penitentiary
in Lee County, Virginia ("USP Lee"). On March 23,
2018, he completed his federal prison terms and was placed on
supervised release in the Eastern District of North Carolina.
A month later, his supervision was transferred to the
Southern District of Indiana.
2241(c) authorizes this court to grant habeas relief
to a prisoner who is both "in custody under or by color
of the authority of the United States" and "in
custody in violation of the Constitution or laws or treaties
of the United States." A former federal prisoner, like
Hubbard, who is serving a term of supervised release,
qualifies as being "in custody" for purposes of
seeking habeas relief. See United States v.
Pregent, 190 F.3d 279, 283 (4th Cir. 1999).
United States Constitution limits the jurisdiction of federal
courts to actual, ongoing cases or controversies. U.S.
Const., art. Ill. § 2; Honig v. Doe. 484 U.S.
305, 317 (1988). "When a case or controversy ceases to
exist-either due to a change in the facts or the law-the
litigation is moot, and the court's subject matter
jurisdiction ceases to exist also." Porter v.
Clarke, 852 F.3d 358, 363 (4th Cir. 2017). In a habeas
corpus case, "[n]o case or controversy exists unless the
petitioner has suffered an actual injury that can be
redressed by a favorable judicial decision." Spencer
v. Kemna, 523 U.S. 1, 7 (1998). If the § 2241
petitioner has served his prison term and his supervised
release term, no live controversy exists that the court could
resolve by addressing his challenge to the legality of his
criminal sentence, and the § 2241 claim is moot. See
United States v. Hardy. 545 F.3d 280, 283-84 (4th
response to the motions to dismiss, Hubbard contends that his
sentence challenges are not moot. He asserts that if his
sentence was held invalid, the court could choose to reduce
his term of supervised release. See, e.g. Pope v.
Perdue, 889 F.3d 410, 414 (7th Cir. 2018) ("When a
former inmate still serving a term of supervised release
challenges the length or computation of his sentence, his
case is not moot so long as he could obtain any potential
benefit from a favorable decision.")- The United States
has not demonstrated that Hubbard could not benefit from a
favorable decision on his § 2241 claim, and the court
cannot so find. See, e.g.. United States v. Johnson,
529 U.S. 53, 59-60 (2000) (holding that although finding
inmate spent too much time in prison would not automatically
entitle him to less supervised release or modified conditions
of release, it would carry "equitable considerations of
great weight" in a motion to reduce his term of
supervised release under 28 U.S.C. § 3583). The
availability of a potential benefit from a decision on the
§ 2241 claim is sufficient to prevent that claim from
being moot. Pope, 889 F.3d at 414; see also
United States v. Epps. 707 F.3d 337, 345 (D.C. Cir.
2013); Muiahid v. Daniels. 413 F.3d 991, 994-95 (9th
Cir. 2005). For the stated reasons, the court will deny the
motions to dismiss the § 2241 petitions as moot.
United States also argues that in the event the court
concludes that the § 2241 claims are not moot, the cases
should be transferred to the United States District Court for
the Southern District of Indiana, where Hubbard is serving
his supervised release. See 28 U.S.C. § 2241(a)
(providing that writ of habeas corpus "shall be entered
in the records of the district court of the district wherein
the restraint complained of is had"). It is well
established, however, that because Hubbard was confined at
USP Lee, within the jurisdiction of this court, when he filed
this § 2241 petitions, this court "retains
jurisdiction" to address his claims. Rumsfeld v.
Padilla, 542 U.S. 426, 441 (2004). Accordingly, the
court will deny the United States' motions.
the United States did not move for dismissal of Hubbard's
§ 2241 petitions on any substantive ground, the court
finds that summary dismissal for lack of jurisdiction is
warranted. A prisoner generally must file a motion under
§ 2255 to collaterally attack the legality of his
detention under a federal conviction or sentence. 28 U.S.C.
§ 2255(a); Davis v. United States, 417 U.S.
333, 343 (1974). A district court cannot entertain a habeas
corpus petition under § 2241 challenging a federal court
judgment unless a motion pursuant to 28 U.S.C. § 2255 is
"inadequate or ineffective to test the legality of [that
inmate's] detention." 28 U.S.C. § 2255(e)
("the savings clause"); Wheeler. 886 F.3d
at 423. "[T]he 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 ...