Anderson v. Ormond, Civil Action No. 6:18-CV-254-CHB

352 F.Supp.3d 767

David F. ANDERSON, Petitioner,

v.J. Ray ORMOND, Warden, Respondent.

Civil Action No. 6:18-CV-254-CHB

United States District Court, E.D. Kentucky, Southern Division. (at London).

Signed December 14, 2018

David F. Anderson, Pine Knot, KY, pro se.

MEMORANDUM OPINION AND ORDER

CLARIA HORN BOOM, UNITED STATES DISTRICT COURT JUDGE

Inmate David F. Anderson has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 to challenge the enhancement of his federal sentence based upon prior state felony convictions. [R. 1] The Court must screen the petition pursuant to 28 U.S.C. § 2243. Alexander v. Northern Bureau of Prisons , 419 F. App'x 544, 545 (6th Cir. 2011).¹

In October 2008, Anderson pled guilty in Miami, Florida to federal charges of possession with intent to distribute 50 grams or more of cocaine base. In his sentencing memorandum, his attorney asserted that Anderson's role in the offense was minor, but conceded that he was a career offender under § 4B1.1(a) of the Sentencing Guidelines based upon prior felony convictions imposed by the State of Florida in 2002 and 2003. Specifically, Anderson had been convicted of battery upon a police officer and resisting or obstructing with violence in one case, and of aggravated assault, two counts of battery upon a police officer, and resisting or obstructing with violence in another.² Although the Sentencing Guidelines established a sentencing range of 262 to 327 months imprisonment, the trial court departed below the guidelines range and in December 2008 imposed a sentence of 210 months imprisonment, a term below the 20-year statutory maximum applicable to his offense under 21 U.S.C. § 841(b)(1)(C). United States v. Anderson , No. 1: 08-CR-20601-JIC-4 (S.D. Fla. 2008) [R. 105, R. 125, R. 133, R. 144 therein] Anderson challenged the reasonableness of his sentence on direct appeal, but in June 2009 the United States Court of Appeals for the Eleventh Circuit found no error and affirmed. United States v. Anderson , 334 F. App'x 275 (11th Cir. 2009).

Although Anderson sets forth a wide variety of arguments in his petition, none of them provide a basis for habeas relief. He first contends that his "[s]tate predicates are not crimes of violence for the purpose of enhancements," an assertion he initially supports only with unexplained references to various decisions by the United States Supreme Court and different federal courts of appeal:

"Vague statutes unconstitutional, See "Johnson/Welch" "Dimaya" under New Intervening change of Law and "Camp v. US" 6th Cir. 2018 for Circuit precedent effecting Career Offenders, Lenity Allowed under Beckles, "Edling 9th Cir." "U.S v Wheeler" 4th Cir 2017 allows Circuit precedent to be held retroactive for collateral review."

[R. 1 at 5] While this argument challenges the enhancement of Anderson's sentence on constitutional grounds, in an attached memorandum³ he separately challenges the enhancement on statutory grounds. Anderson argues that his three Florida convictions for battery upon a law enforcement officer pursuant to Fl. Stat. § 784.07(2)(B) are not "crimes of violence" within the meaning of § 4B1.2(a) because the statute does not require a violent or forceful touching when it is inflicted upon a police officer. [R. 1-1 at 8-10 (citing Johnson v. United States , 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) and United States v. Arroyo , 636 F. App'x 989 (11th Cir. 2016) ] Anderson separately argues that his convictions for aggravated assault are not crimes of violence because the state statute of conviction, Fl. Stat. § 784.07(2)(c), proscribes a broader range of conduct than the generic definition of assault.⁴ [R. 1-1 at 17-18 (citing Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) and Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016) ] As will be discussed below, Anderson's arguments fail on both procedural and substantive grounds.

Procedurally, Anderson's constitutional and statutory claims are not cognizable in a habeas corpus petition filed pursuant to 28 U.S.C. § 2241. A federal prisoner must generally challenge the legality of his federal conviction or sentence by filing a motion for post-conviction relief under 28 U.S.C. § 2255 in the court that convicted and sentenced him. Capaldi v. Pontesso , 135 F.3d 1122, 1123 (6th Cir. 1998). A habeas corpus petition pursuant to 28 U.S.C. § 2241 may generally not be used for this purpose because it does not function as an additional or alternative remedy to the one available under § 2255. Hernandez v. Lamanna , 16 F. App'x 317, 320 (6th Cir. 2001). The "savings clause" of 28 U.S.C. § 2255(e) creates an extraordinarily narrow exception to this prohibition if the remedy afforded by § 2255 is "inadequate or ineffective" to test the legality of the prisoner's detention. Truss v. Davis , 115 F. App'x 772, 773-74 (6th Cir. 2004). Under this exception, a prisoner may use a habeas corpus proceeding under § 2241 to challenge the validity of his conviction where, after the prisoner's conviction became final, the Supreme Court re-interprets the substantive terms of the criminal statute under which he was convicted in a manner that establishes that his conduct did not violate the statute. Hayes v. Holland , 473 F. App'x 501, 501-02 (6th Cir. 2012) ("To date, the savings clause has only been applied to claims of actual innocence based upon Supreme Court decisions announcing new rules of statutory construction unavailable for attack under section 2255."); United States v. Prevatte , 300 F.3d 792, 800-801 (7th Cir. 2002).

In Hill v. Masters , 836 F.3d 591 (6th Cir. 2016), the Sixth Circuit held that challenges to the enhancement of a federal sentence, as opposed to a conviction, could be pursued in a § 2241 petition, but only in a certain class of cases. To qualify, the petitioner must:

(1) point to a Supreme Court decision of statutory interpretation which establishes that one or more of his prior convictions were not for offenses that could properly be used to enhance his federal sentence;

(2) show that the decision could not have been invoked in an initial § 2255 motion;

(3) demonstrate that the decision is retroactively applicable to cases on collateral review;

(4) establish that his sentence was miscalculated in a manner sufficiently grave to be deemed a miscarriage of justice or a fundamental defect; and

(5) have been sentenced under a mandatory guidelines regime before the Supreme Court's decision in United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) rendered the Sentencing Guidelines merely advisory.

Hill , 836 F.3d at 595, 599-600. Here, Anderson was sentenced in 2008, three years after Booker was decided, at a time when the Sentencing Guidelines were advisory rather than mandatory. He therefore fails to satisfy at least one of the requirements set forth in Hill , rendering his challenge to the enhancement of his sentence not cognizable in this § 2241 proceeding.

In a series of recent unpublished opinions, the Sixth Circuit has questioned whether the Hill decision actually limited its holding regarding the scope of the savings clause to sentences imposed before Booker was decided. Cf. Neuman v. United States , No. 17-6100, 2018 WL 4520483 (6th Cir. May 21, 2018) :

The district court relied on the even narrower three-part standard that appears at the very end of Hill. There, the Hill panel stressed that its decision addresses "only a narrow subset" of savings clause petitions filed under § 2241 petitions (sic ), involving petitioners sentenced under the pre- Booker mandatory guidelines regimes who argued that a "subsequent, retroactive change in statutory interpretation by the Supreme Court reveals that a previous conviction is not a predicate offense for a career offender enhancement." Hill , 836 F.3d at 599-600. It is not clear whether this even narrower language was intended to add an additional element to the comparatively broader three-part substantive showing that a petitioner must make in order to challenge a sentencing error in a § 2241 petition under the savings clause, see id. at 595, or merely a statement of the specific circumstances before the court in Hill. Because Neuman cannot make the initial broader substantive showing required by Hill , however, we need not here address whether Hill is limited to career-offender enhancements imposed under the pre- Booker mandatory guidelines.

Id. at *2 n.1. While the Court agrees that the decision in Hill is confounding in many respects, see note 5 infra , the panel's intention to limit the reach of its holding to sentences imposed under the pre- Booker mandatory guidelines regime is evident from its opinion.

First, the Sixth Circuit in Hill relied heavily upon the Seventh Circuit's decision in Brown v. Caraway , 719 F.3d 583 (7th Cir. 2013) to support its conclusion regarding the scope of the savings clause. Id. at 595. In particular, it relied upon Brown to support its holding that errors in applying sentencing enhancements are fundamental defects that constitute a miscarriage of justice where the sentence was imposed under pre- Booker mandatory guidelines:

Thus, the misapplication of the sentencing guidelines, at least where (as here) the defendant was sentenced in the pre- Booker era, represents a fundamental defect that constitutes a miscarriage of justice corrigible in a § 2241 proceeding.

Id. at 597 (quoting Brown , 719 F.3d at 587-88 ). Second, the Court in Hill noted that Sixth Circuit precedent has long permitted a sentencing challenge under § 2241 where the sentence imposed exceeds the statutory maximum. Hill , 836 F.3d at 597 (citing United States v. Peterman , 249 F.3d 458, 462 (6th Cir. 2001) ). The Court in Hill expressly relied upon the mandatory nature of pre- Booker guidelines sentences to draw an analogy to this Sixth Circuit precedent permitting § 2241 challenges to sentences above the statutory...