Whitaker v. Dunbar, 5:13–HC–2009–D.

• Decision Date: 02 September 2014
• Docket Number: No. 5:13–HC–2009–D.,5:13–HC–2009–D.
• Citation: 83 F.Supp.3d 663
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Lance WHITAKER, Petitioner, v. Angela P. DUNBAR, Respondent.

83 F.Supp.3d 663

Lance WHITAKER, Petitioner

v.Angela P. DUNBAR, Respondent.

No. 5:13–HC–2009–D.

United States District Court, E.D. North Carolina, Western Division.

Signed Sept. 2, 2014.

Lance Whitaker, Butner, NC, pro se.

Seth Morgan Wood, U.S. Attorney's Office, Raleigh, NC, for Respondent.

ORDER

JAMES C. DEVER III, Chief Judge.

On January 14, 2013, Lance Whitaker (“Whitaker” or “petitioner”) filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [D.E. 1]. Whitaker asks the court to resentence him on his conviction on count one for conspiring to distribute and possess with the intent to distribute 50 grams or more of cocaine base (crack), a quantity of cocaine, and a quantity of marijuana, and to vacate his conviction and sentence on count five for being a felon in possession of a firearm.See id. 8. The petition initially was assigned to the Honorable Terrence W. Boyle. On October 8, 2013, Judge Boyle granted several motions to amend Whitaker's petition, conducted a preliminary review pursuant to 28 U.S.C. § 2243, and dismissed the petition. See [D.E. 19]. On October 15, 2013, Judge Boyle vacated the judgment in light of Farrow v. Revell, 541 Fed.Appx. 327 (4th Cir.2013) (per curiam) (unpublished), and allowed the petition to proceed. See [D.E. 21].

On November 1, 2013, the clerk served respondent with the petition. See [D.E. 25]. On November 20, 2013, Judge Boyle granted Whitaker's fifth motion to amend his petition. See [D.E. 27, 28]. On December 13, 2013, respondent responded in opposition to the petition [D.E. 32]. On December 20, 2013, Whitaker replied [D.E. 33], and the clerk reassigned the petition to the undersigned (who accepted Whitaker's guilty plea and sentenced Whitaker). See [D.E. 34].

Whitaker filed additional motions to amend his petition. See [D.E. 37, 42, 43, 45, 46]. The court grants the motions to amend, and addresses all of Whitaker's claims. Whitaker also seeks appointment of counsel [D.E. 42], and asks this court to reconsider its 2011 decision to dismiss his section 2255 motion. See [D.E. 44]. On February 12, 2014, respondent moved to deny the petition [D.E. 38]. On March 3, 2014, Whitaker responded in opposition [D.E. 41]. As explained below, the court grants in part Whitaker's section 2241 petition, vacates Whitaker's conviction and sentence on count five, and denies all other requests for relief.

I.

On December 14, 2009, Whitaker pleaded guilty, pursuant to a plea agreement, No. 4:09–CR–91–D [D.E. 28], to conspiring to distribute and possess with the intent to distribute 50 grams or more of cocaine base (crack), a quantity of cocaine, and a quantity of marijuana in violation of 21 U.S.C. § 846 (count 1), and to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924 (count 5). See Arraignment Tr., No. 4:09–CR–91–D [D.E. 88] 27–29. The plea agreement contained a waiver under United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.1990), concerning Whitaker's appellate and post-conviction rights. In the waiver, Whitaker agreed

[t]o waive knowingly and expressly all rights, conferred by 18 U.S.C. § 3742, to appeal whatever sentence is imposed, including any issues that relate to the establishment of the advisory Guideline range, reserving only the right to appeal from a sentence in excess of the applicable advisory Guideline range that is established at sentencing, and further to waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to 28 U.S.C. § 2255, excepting an appeal or motion based upon grounds of ineffective assistance of counsel or prosecutorial misconduct not known to the Defendant at the time of the Defendant's guilty plea. The foregoing appeal waiver does not constitute or trigger a waiver by the United States of any of its rights to appeal provided by law.

Plea Agr., No. 4:09–CR–91–D [D.E. 28] ¶ 2.c. At his arraignment, Whitaker knowingly, intelligently, and voluntarily waived the rights within the scope of the waiver. See Arraignment Tr. 23–25; United States v. Copeland, 707 F.3d 522, 528–30 (4th Cir.2013) ; United States v. Thornsbury, 670 F.3d 532, 537 (4th Cir.2012) ; United States v. Blick, 408 F.3d 162, 168 (4th Cir.2005).

On May 4, 2010, the court sentenced Whitaker. See No. 4:09–CR–91–D [D.E. 36]. At sentencing, the court calculated the advisory guideline range on count 1 as 360 months to life imprisonment based on a criminal-history category of VI and a total offense level of 38. On count 5, the court calculated the advisory guideline range to be 120 months due to the 120–month statutory maximum. At sentencing, the court granted the government's motion pursuant to U.S.S.G. § 5K1.1. After considering each attorney's argument, Whitaker's statement, and all relevant factors under 18 U.S.C. § 3553, the court sentenced Whitaker to 276 months' imprisonment on count one and 120 months' imprisonment on count five to run concurrently. See Sentencing Tr., No. 4:09–CR–91–D [D.E. 87] 14–17. Whitaker did not appeal.

On August 12, 2010, Whitaker moved to vacate his sentence pursuant to 28 U.S.C. § 2255 and raised numerous arguments. See No. 4:09–CR–91–D [D.E. 37]. On August 23, 2011, the court denied relief under section 2255. See No. 4:09–CR–91–D [D.E. 58]. Specifically, the court held that the Wiggins waiver in Whitaker's plea agreement barred Whitaker's attack on the enhancement provision in 21 U.S.C. § 851 concerning count one. See id. 2–3. As for Whitaker's ineffective-assistance-of-counsel claims concerning the section 851 enhancement, Whitaker's status as a career offender, and counsel's advice concerning Whitaker's guilty plea and sentencing, the court dismissed those claims for failure to state a claim upon which relief can be granted. Id. 3–6. Similarly, the court dismissed Whitaker's request for a sentence reduction under Rule 35(b) of the Federal Rules of Criminal Procedure. Id. 6. Finally, the court denied a certificate of appealability. Id. 6–7.

Whitaker sought to appeal. On December 30, 2011, the United States Court of Appeals for the Fourth Circuit declined to issue a certificate of appealability and dismissed Whitaker's appeal. See United States v. Whitaker, 460 Fed.Appx. 225 (4th Cir.2011) (per curiam) (unpublished).

On September 23, 2011, Whitaker filed a pro se motion for a sentence reduction under 18 U.S.C. § 3582. No. 4:09–CR–91–D [D.E. 67]. On January 24, 2012, counsel entered a notice of appearance on Whitaker's behalf and amended the section 3582 motion on March 1, 2012. No. 4:09–CR–91–D [D.E. 74, 78]. Whitaker's section 3582 motion sought relief under both the Fair Sentencing Act of 2010 (“FSA”) and United States v. Simmons, 649 F.3d 237 (4th Cir.2011) (en banc). On October 1, 2012, the court rejected Whitaker's FSA claim on the merits and denied Whitaker's Simmons argument without prejudice as an unauthorized successive 2255 motion. No. 4:09–CR–91–D [D.E. 79] 1–3.

On December 18, 2012, Whitaker moved in the Fourth Circuit, pursuant to 28 U.S.C. § 2244, for authorization to file a successive habeas application. On January 4, 2013, the Fourth Circuit denied the motion. In re Whitaker, No. 12–402 (4th Cir. Jan. 4, 2013) (per curiam) (unpublished); see Pet. 4.

On September 24, 2013, Whitaker filed a motion for reconsideration in this court concerning his first section 2255 motion. No. 4:09–CR–91–D [D.E. 44]. On January 17, 2014, the court denied Whitaker's motion for reconsideration “without prejudice to Whitaker filing a separate motion under 28 U.S.C. § 2241 concerning his conviction on count five.” No. 4:09–CR–91–D [D.E. 83] 1–2 (citing Miller v. United States, 735 F.3d 141, 144–47 (4th Cir.2013) ).

On January 14, 2013, Whitaker filed this petition under 28 U.S.C. § 2241. Whitaker, however, did not limit his section 2241 petition to his conviction on count five. Although Whitaker's petition and numerous amendments are difficult to understand, he essentially makes three claims. First, Whitaker challenges his conviction on count five under 18 U.S.C. § 922(g) in light of Simmons and its progeny. See Pet. 5; Mem. Supp. Pet. 3–7; [D.E. 5, 6, 8, 11, 12, 14, 17, 18, 27, 29, 33, 35, 46]. Second, Whitaker seeks a sentence reduction under Federal Rule of Criminal Procedure 35. See [D.E. 3, 4, 6, 7, 14, 16]. Third, in light of Whiteside v. United States, 748 F.3d 541, 551 (4th Cir.), reh'g en banc granted, 578 Fed.Appx. 218 (4th Cir.2014), Whitaker challenges his status as a career offender and the enhancement under 21 U.S.C. § 851 concerning his sentence on count one. See [D.E. 15, 42].¹

A federal prisoner may use section 2241 to attack his conviction or sentence only if a motion under 28 U.S.C. § 2255 would be “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e) ; see, e.g., Rice v. Rivera, 617 F.3d 802, 806–08 (4th Cir.2010) ; In re Jones, 226 F.3d 328, 333–34 (4th Cir.2000) ; In re Vial, 115 F.3d 1192, 1194–98 (4th Cir.1997) (en banc). Section 2255 is inadequate or ineffective to test the legality of detention when three conditions are met:

(1) at the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner's direct appeal and first [section] 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of [section] 2255 because the new rule is not one of constitutional law.

Jones, 226 F.3d at 333–34. Section 2255 is “not rendered inadequate or ineffective” merely because a petitioner is procedurally barred from filing a section 2255 motion. Vial, 115 F.3d at 1194 n. 5.

As for Whitaker's claim under Rule 35, the claim is not cognizable in a section 2241 petition. See, e.g., Hicks v. Patton, No. 07CV046–HRW, 2007 WL 2793847, at *6–7 (E.D.Ky. Sept. 26, 2007) (unpublished); Garcia v. Beeler, No. CIV.A. 97–5624(JEI), 1998 WL...