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Hubbard v. Zych

United States District Court, W.D. Virginia, Roanoke Division

November 6, 2019

CREADELL HUBBARD, Petitioner,
v.
CHRISTOPHER ZYCH, WARDEN, Respondent. CREADELL HUBBARD, Petitioner,
v.
CHARLES RATLEDGE, WARDEN, Respondent.

          MEMORANDUM OPINION

          HON. GLEN E. CONRAD SENIOR UNITED STATES DISTRICT JUDGE

         Creadell 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.[1]

         Background

         A jury 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.[2] 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CR-88-40; CA-97-320-BO (E.D. N.C. Aug. 3, 1999), appeal dism'd. United States v. Hubbard. 210 F.3d 363 (4th Cir. 2000) (unpublished).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 under Descamps.

         In the 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, [3] 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.

         In the 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.

         Hubbard appealed the dismissals of both cases.[4] 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.

         When 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.

         Discussion

         Section 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).

         The 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).[5] 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 Cir. 2008).

         In 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.

         The 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.

         Although 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 ยง 2255 is not rendered inadequate or ineffective merely because an individual has been unable to obtain relief under that provision, or because an individual ...


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