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Case 1:12-cv-00129-IMK-DJJ Document 23 Filed 07/30/13 Page 1 of 6 PageID #: 79

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

LAFAYETTE HOWARD,

Petitioner,

v.

TERRY O’BRIEN,

Respondent.

CIVIL NO. 1:12CV129
(Judge Keeley)

ORDER ADOPTING REPORT AND RECOMMENDATION

Before the Court is the magistrate judge’s Report and
Recommendation (“R&R”) concerning the 28 U.S.C. § 2241 petition
filed by LaFayette Howard (“Howard”). For the reasons that follow,
the Court ADOPTS the R&R in its entirety.

I.

On August 16, 2012, the pro se petitioner, inmate Lafayette
Howard (“Howard”), filed a writ of habeas corpus pursuant to 28
U.S.C. § 2241, alleging that his sentence was improperly enhanced.
(Dkt. No. 1). The Court referred this matter to United States
Magistrate Judge David J. Joel for initial screening and a report
and recommendation in accordance with LR PL P 2.

Magistrate Judge Joel issued an Opinion and Report and
Recommendation (“R&R”) on January 8, 2013, in which he recommended
that the petitioner’s § 2241 petition be denied and dismissed
without prejudice. (Dkt. No. 10). Pursuant to In re Jones, 226 F.3d

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HOWARD v. O’BRIEN

1:12CV129

ORDER ADOPTING REPORT AND RECOMMENDATION

328 (4th Cir. 2000), the magistrate judge determined that Howard is
not entitled to file the instant § 2241 petition because he has not
established that § 2255 is an inadequate or ineffective remedy for
his claims.

On June 21, 2013, after receiving several extensions, Howard
filed objections to the R&R. (Dkt. No. 22). In essence, Howard
contends that he can meet the three-prong test of In re Jones and
that, consequently, the magistrate judge incorrectly determined
that § 2241 was an improper vehicle for his claims. After
conducting a de novo review, the Court concludes that Howard’s
objections are without merit.

II.

On July 12, 1999, Howard pleaded guilty in the United States
District Court for the Western District of Tennessee to two counts
of Bank Robbery by Force or Violence in violation of 18 U.S.C.
§ 2113(a)(d) & (e) and one count of Carry and Use of a Firearm
During and in relation to a Crime of Violence in violation of 18
U.S.C. § 924(c). On September 20, 1999, he was sentenced to twenty-
eight (28) years imprisonment and five (5) years of supervised
release.

Howard now argues that the predicate offenses used to qualify
him as a “career offender” under the United States Sentencing

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HOWARD v. O’BRIEN

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ORDER ADOPTING REPORT AND RECOMMENDATION

Guidelines no longer qualify as felonies pursuant to
Carachuri–Rosendo v. Holder, ––– U.S. ––––, 130 S. Ct. 2577, 177
(2010),1 and he consequently seeks a recalculation of his sentence.

III.

Where, as here, a petitioner seeks to attack the imposition of
his sentence, rather than its execution, he may only seek a writ of
habeas corpus pursuant to § 2241 by demonstrating that § 2225 is
“inadequate or ineffective to test the legality of . . .
detention.” 28 U.S.C. § 2255(e) (the “savings clause”); see also In
re Jones, 226 F.3d at 332. Section 2255 is inadequate or
ineffective where:

(1) at the time of the 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 § 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 gate-keeping provisions of
§ 2255 because the new rule is not one of constitutional
law.

In re Jones, 226 F.3d at 333-34. Contrary to Howard’s arguments, he
has not established that “the conduct of which [he] was convicted”
is no longer criminal, as required by the second prong of this
test. Id.

1 The Court notes that Carachuri–Rosendo is a “procedural rule” that
is “not retroactively applicable to cases on collateral review.” United
States v. Powell, 691 F.3d 554, 560 (4th Cir. 2012).

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ORDER ADOPTING REPORT AND RECOMMENDATION

Fundamentally, “Fourth Circuit precedent does not support the
extension of the savings clause to petitioners who challenge only
their sentences.” Petty v. O’Brien, No. 1:11CV9, 2012 WL 509852
(N.D. W. Va. Feb. 15, 2012) (citing United States v. Poole, 531
F.3d 263, 267 n.7 (4th Cir. 2008)). Rather, the § 2255 savings
clause is “confined [] to instances of actual innocence of the
underlying offense of conviction,” not just “innocence” of a
sentencing factor. Darden v. Stephens, 426 F. App’x 173, 174 (4th
Cir. 2011) (per curiam) (emphasis added) (refusing to extend the
savings clause to reach the petitioner’s claim that he was actually
innocent of being a career offender).2

Here, Howard argues that his past crimes were misclassified as
qualifying “felonies” for the purposes of the career offender

2 See also Little v. Hamidullah, 177 F. App’x 375, 375–376 (4th Cir.
2006); Green v. Hemingway, 67 F.App’x 255, 257 (6th Cir. 2003) (“Even if
it is assumed that [Petitioner]’s allegations are true, the ‘actual
innocence’ exception of the savings clause of § 2255, as it has been
interpreted by this Court, is actual innocence of the underlying,
substantive offense, not innocence of a sentencing factor.” (internal
quotations omitted)); Kinder v. Purdy, 222 F.3d 209, 213–14 (5th Cir.
2000) (holding that § 2241 is not available where a petitioner “makes no
assertion that he is innocent of the crime for which he was convicted”);
Boynes v. Berkebile, No. 5:10CV00939, 2012 WL 1569563, *7 (S.D. W. Va.
May 1, 2012); Cooper v. Warden FCI Williamsburg, No. 4:10-2402, 2010 WL
6297767, at *3 (D.S.C. Dec. 1, 2010) (“Petitioner’s action seeking a
determination that he is actually innocent of a[n] [ACCA] sentence
enhancement fails to state a cognizable § 2241 claim.”); White v. Rivera,
518 F. Supp. 2d 752, 757 n.2 (D.S.C. 2007) (“Furthermore, his ‘actual
innocence’ argument concerning an enhancement does not entitle him to
relief under § 2241, as it ‘is not the type of argument that courts have
recognized may warrant review under § 2241.’”).

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ORDER ADOPTING REPORT AND RECOMMENDATION

sentencing enhancement. He does not assert that the conduct for
which he was actually convicted is no longer criminal. See In re
Jones, 226 F.3d at 334. Accordingly, he is not entitled to proceed
under § 2241. See, e.g., James v. Stansberry, No. 3:08-512, 2009 WL
320606, at *2 (E.D. Va. Feb. 9, 2009) (collecting cases). The Court
therefore agrees with the magistrate judge that Howard’s claims are
not cognizable in this proceeding and OVERRULES his objections to
the R&R.

IV.

For the reasons discussed, the Court:
1.

ADOPTS the Report and Recommendation in its entirety
(dkt. no. 10);
DENIES Howard’s § 2241 petition (dkt. no. 1); and
ORDERS that this case be DISMISSED WITHOUT PREJUDICE and
STRICKEN from the docket of this Court.

2.
3.

If the petitioner should desire to appeal the decision of this
Court, written notice of appeal must be received by the Clerk of
this Court within sixty (60) days from the date of the entry of the
Judgment Order, pursuant to Rule 4 of the Federal Rules of
Appellate Procedure.

It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of

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HOWARD v. O’BRIEN

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ORDER ADOPTING REPORT AND RECOMMENDATION

Court to enter a separate judgment order and to transmit copies of
both orders to counsel of record and to the pro se petitioner,
certified mail, return receipt requested.

Dated: July 30, 2013.

/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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