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4th Circuit sets new test for sentencing relief


A federal inmate seeking habeas corpus relief now will have his petition considered on its merits.

The en banc 4th U.S. Circuit Court of Appeals overturned a 2011 decision, finding a retroactive change in the law rendered the man’s sentence defective.

The court’s findings in U.S. v. Wheeler also led to the creation of a new savings clause test for erroneous sentences.

In April 2007, Gerald Wheeler pleaded guilty in North Carolina federal court to several drug and weapons charges. The government sought an enhanced sentence based on a 1996 conviction for cocaine possession that it said was a qualifying felony drug offense under the Controlled Substances Act.

Federal law mandated a sentence of 10 years to life for an offense occurring after a felony drug offense, defined as an offense punishable by more than one year in prison under any state law prohibiting or restricting conduct relating to narcotics. Absent the conviction, Wheeler would have faced a five-year minimum sentence.

The court agreed with the government, noting that it had “no discretion” in handing down the 10-year sentence, which it called “harsh” but mandatory, for possession with intent to distribute cocaine and crack.

He also received a consecutive five-year sentence for carrying a firearm during a drug trafficking crime.

In 2009, the 4th Circuit affirmed the sentence.

What could’ve been

In his first §2255 motion, Wheeler argued that his counsel was ineffective for failing to argue that the 1996 conviction did not qualify for an enhanced sentence because the most he faced a maximum sentence of eight months.

The district court dismissed the motion, citing 4th Circuit decisions in U.S. v. Harp and U.S. v. Simmons (2005 and 2011, respectively) holding that in determining whether a conviction is for a crime punishable by more than a year in prison, it considers the “maximum aggravated sentence” the could be imposed upon a defendant “with the worst possible criminal history.”

Given that, the district court determined that although Wheeler received a sentence of only six to eight months, he could have received 15 months for the Class I felony.

Wheeler’s pro se motion to reconsider was denied by the district court, so he filed a notice of appeal and a motion for certificate of appealability.

Change in policy

In 2011, while the COA motion was pending, the 4th Circuit, sitting en banc, overturned the panel’s decision in Simmons. The full bench said that no longer would a district court look to a “hypothetical defendant” with the worst possible record when deciding whether a sentence enhancement was appropriate, but that it may only consider the maximum sentence that the particular defendant could have received.

At the time, however, Simmons did not apply retroactively on collateral review. As such, the court dismissed Simmons’ appeal.

Another shot

Later that year, Wheeler argued pro se in a second §2255 motion that he was innocent of the §851 (which governs proceedings to establish prior convictions) enhancement; that his 1996 conviction is not a felony drug offense since he was exposed to only eight months; and that Simmons should apply retroactively.

He also petitioned, now with counsel, for relief pursuant to §2241 — the power to grant writ — by way of §2255(e) savings clause. The §2255 motion was again denied, but the §2241 was pending when, four months later, the court held in Miller v. United States that Simmons applies retroactively on collateral review.

In July 2015, a divided 4th Circuit panel decided in U.S. v. Surratt that a petitioner serving life without parole based on a conviction rendered nonqualifying after Simmons and Miller was not entitled to savings clause relief because his conviction was challenged, rather than his sentence. On the same grounds, the district court dismissed Wheeler’s §2255 motion and dismissed his §2241 petition.

Section 2255(e) provides a means for petitioners to apply for a traditional writ of habeas corpus pursuant to §2241, stating that an application for a writ shall not be entertained if an applicant has failed to seek relief from the sentencing court, or if the court has denied relief, “unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.”

Wheeler appealed the finding that he did not meet the savings clause requirements, arguing that the savings clause is not jurisdictional, so because the government argued in district court that he satisfied the clause, it waived any such challenge and precluded the courts from considering the issue. He also argued that he can satisfy the requirements.


Writing for the court, Circuit Judge Stephanie Thacker addressed the government’s “shifting position” in the case, noting that it took the position in district court that Wheeler met the savings clause requirements and was entitled to relief.  

“Imposing a mandatory-minimum sentence based on the defendant’s prior conviction, when that conviction is legally ineligible to justify the mandatory term, is a fundamental error,” the government once asserted.

But the government has done an “about-face” on appeal, Thacker wrote.

Siding with the 11th Circuit in a matter in which circuits split, the court held that the savings clause of §2255 is a jurisdictional provision that contains “a clear expression of congressional intent,” and language that the U.S. Supreme Court has previously deemed jurisdictional, and unlike provisions that it has labeled nonjurisdictional.

It is a statute, the court found, rather than a rule, that provides whether a petition may be entertained and is not an element of a claim for relief and provides no time limitation.

“Because the savings clause requirements are jurisdictional, we must reject Appellant’s waiver argument,” Thacker wrote. “Though the Government’s change of position is a ‘distasteful occurrence,’ and is ‘not to be encouraged, its about-face is irrelevant to our resolution of’ this appeal.

‘Must provide an avenue’

Turning to whether Wheeler met the clause’s requirements, or whether §2255 is inadequate or ineffective to test the legality of his detention, the court noted that the law’s intent was to afford federal prisoners a remedy identical in scope to federal habeas corpus. In 2000, it found in In re Jones that sentencing errors are included within the ambit of the savings clause, which pertains to one’s “detention.” Congress, the court wrote, deliberately used “detention” rather than “conviction” or “offense,” words it used elsewhere in §2255.

“Detention necessarily implies imprisonment,” Thacker wrote. … Thus, ‘the text of the savings clause …. does not limit its scope to testing the legality of the underlying criminal conviction.’”

She added that the Supreme Court has long recognized a right to traditional habeas corpus relief based on an illegally extended sentence.

“Therefore, we readily conclude that §2255(e) must provide an avenue for prisoners to test the

legality of their sentences pursuant to §2241, and Jones is applicable to fundamental sentencing errors, as well as undermined convictions,” she wrote.

Tailor fitted

In finding that prisoners may challenge allegedly illegal sentences in a §2241 petition, and that §2255(e) contemplates the challenge, the court established savings clause criteria tailored to the situation.

Under Jones, the new test to determine that §2255 is inadequate and ineffective to test the legality of a sentence is satisfied when: at the time of sentencing, settled law established the legality of the sentence; the substantive law changed — subsequent to the prisoner’s direct appeal and first s2255 motion — and was deemed to apply retroactively on collateral review; the prisoner is unable to meet the gatekeeping provisions of  §2255(h)(2) for second or successive motions; and due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental fact.

The 34-page decision is United States v. Wheeler (Lawyers Weekly No. 001-058-18). The full text of the opinion is available online at

Follow Heath Hamacher on Twitter @NCLWHamacher

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