Bey v. Terris

JEROME F. DEERING BEY, Petitioner, v. J.A. TERRIS, Respondent.

Civil Action No. 19-12120

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

October 14, 2020

HONORABLE NANCY G. EDMUNDS

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS BROUGHT PURSUANT TO 28 U.S.C. § 2241 AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

Jerome F. Deering Bey, ("Petitioner"), confined at the Federal Correctional Institution in Milan, Michigan, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner challenges the scoring of his federal sentencing guidelines as a career offender for his convictions for distributing, possessing with intent to distribute, and aiding and abetting the distribution and possession with intent to distribute, cocaine base (i.e., "crack cocaine"), in violation of 21 U.S.C. § 841(a)(1); and conspiring to distribute, and to possess with intent to distribute cocaine base (i.e., "crack cocaine"), in violation of 21 U.S.C. § 846. For the reasons that follow, the petition for a writ of habeas corpus is DENIED WITH PREJUDICE.

I. Background

Petitioner was convicted of the above charges in 1997 by a jury in the United States District Court for the Northern District of Iowa. The judge sentenced petitioner as a career offender under the Federal Sentencing Guidelines to concurrent sentences of 360 months.

Petitioner's conviction was affirmed on direct appeal. United States v. Deering, 179 F.3d 592, 594 (8th Cir. 1999).

Petitioner filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, which was denied. United States v. Deering, U.S.D.C. No. 94-21 (N.D. Iowa Jan. 28, 2004); appeal dism. No. 04-1441 (8th Cir. Aug. 4, 2004); cert. den. sub nom Bey v. United States, 543 U.S. 1075 (2005).¹

Petitioner has since been denied permission twice by the United States Court of Appeals for the Eighth Circuit to file a successive motion to vacate sentence. Deering-Bey v. United States, No. 16-2077 (8th Cir. Sept. 29, 2016); Deering v. United States, No. 18-3576 (8th Cir. Feb. 28, 2019).

Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. challenging the scoring of his federal sentencing guidelines for his 1997 drug convictions out of the United States District Court for the Northern District of Iowa.

The petition was held in abeyance pending the outcome of petitioner's motion for a reduction of sentence under the First Step Act, which was pending before the sentencing judge in the Northern District of Iowa at the time of the filing of the petition. The motion was ultimately denied. United States v. Deering-Bey, U.S.D.C. No. 94-21 (N.D. Iowa June 16, 2020).

The petition has now been reopened to the Court's active docket. The Government filed an answer and petitioner filed a reply.

Petitioner claims he was wrongly sentenced as a career offender under the Federal Sentencing Guidelines.

II. Discussion

Petitioner seeks habeas relief from his federal sentence. Petitioner claims that he was wrongly sentenced under the career offender provisions of the Federal Sentencing Guidelines. In his amended petition, petitioner also seeks to be released to home confinement.

Petitioner was classified as a career offender based on a 1975 Iowa conviction for "robbery with aggravation" (armed robbery)(Sealed Exhibit 1: PSR ¶ 73), two separate 1979 Iowa convictions for first degree robbery (Id., ¶ 76, 77), and a federal conviction in 1987 for possession with intent to distribute cocaine (Id., ¶ 80). See Id., ¶ 86. Petitioner had 16 criminal history points, putting him in Criminal History Category VI even without the career offender determination. (Id., ¶ 85). The career offender classification resulted in an offense level of 37 under the Federal Sentencing Guidelines. (Id., ¶ 61). The Pre-Sentence Report (PSR) recommended ignoring the career offender guideline and sentencing petitioner based on drug quantity alone because his offenses involved at least 3.007 kilograms of crack, 30.198 kilograms of powder cocaine, and 226.8 grams of heroin, resulting in a base offense level of 38. (Id., ¶¶ 53, 64). With an increase for obstruction of justice, the PSR recommended a total offense level of 40. (Id., ¶¶ 57, 60).

The sentencing judge, however, relied only on the amount of crack charged in the indictment ("more than 5 grams") and did not adopt the PSR's drug quantity recommendation. Instead, the judge sentenced petitioner as a career offender with a total offense level of 37 and Criminal History Category VI, or a guideline range of 360 months to life. (Sealed Exhibit 2: Judgment, Statement of Reasons).

Petitioner alleges that the judge impermissibly used the "residual clause" of the career offender guidelines to sentence him as a career offender. Petitioner argues that his sentence is now invalid based on the Supreme Court cases of Johnson v. United States, 135 S. Ct. 2551 (2015), Mathis v. United States, 136 S. Ct. 2243 (2016), and Dimaya v. Sessions, 138 S. Ct. 1204 (2018).

A federal prisoner may challenge his conviction or the imposition of sentence under 28 U.S.C. § 2241 only if the post-conviction remedy afforded under § 2255 is inadequate or ineffective to test the legality of the defendant's detention. See Wooten v. Cauley, 677 F.3d 303, 307 (6th Cir. 2012). Habeas corpus cannot be used as an additional, alternative, or supplemental remedy to the motion to vacate, set aside, or correct the sentence. See Charles v. Chandler, 180 F.3d 753, 758 (6th Cir. 1999). The burden of showing that the remedy afforded under § 2255 is inadequate or ineffective rests with the petitioner and the mere fact that a prior motion to vacate sentence may have proven unsuccessful does not necessarily meet that burden. In Re Gregory, 181 F.3d 713, 714 (6th Cir. 1999). The remedy afforded under § 2255 is not considered inadequate or ineffective simply because § 2255 relief has already been denied, or because the petitioner was procedurally barred from pursuing relief under § 2255, or because the petitioner was denied permission to file a second or successive motion to vacate sentence. Wooten v. Cauley, 677 F.3d at 303. Thus, the mere fact that the provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) might prevent a petitioner from filing a second or successive motion to vacate or set aside the sentence, in the absence of newly discovered evidence or a new rule of constitutional law, does not mean that the remedy provided by such motion is inadequate or ineffective so as to allow the petitioner to seek habeas corpus relief under 28 U.S.C. § 2241. See Hervey v. United States, 105 F. Supp. 2d 731, 733 (E.D. Mich. 2000). A habeas petitioner's § 2255 remedy is notinadequate merely because the petitioner permitted the one year statute of limitations contained in the Antiterrorism of Effective Death Penalty Act (AEDPA) to expire. Charles, 180 F.3d at 758.

The Sixth Circuit until recently held that a federal prisoner could not raise a challenge to his sentence under 28 U.S.C. § 2241. See Gibbs v. United States, 655 F.3d 473, 479 (6th Cir.2011); see also United States v. Peterman, 249 F.3d 458,462 (6th Cir. 2001).

The Sixth Circuit, however, recently modified this rule. In Hill v. Masters, 836 F.3d 591 (6th Cir. 2016), the Sixth Circuit held that a federal prisoner may obtain habeas relief under § 2241 based on "a misapplied sentence," if the petitioner establishes "(1) a case of statutory interpretation, (2) that is retroactive and could not have been invoked in the initial § 2255 motion, and (3) that the misapplied sentence presents an error sufficiently grave to be deemed a miscarriage of justice or a fundamental defect." Id. at 595. Challenges to a sentencing enhancement as a career offender can be brought under § 2241 through the § 2255(e) savings clause by: "(1) prisoners who were sentenced under the mandatory guidelines regime pre-United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L.Ed.2d 621 (2005), (2) who are foreclosed from filing a successive petition under § 2255, and (3) when 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." Id., at 599-600.

A defendant is subject to an enhanced sentence under the guidelines if he is a career offender. U.S.S.G. § 4B1.1. The career offender enhancement applies if, among other things, the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1(a).

A crime of violence is defined as:

[A]ny offense under federal or state law, punishable by imprisonment for a term exceeding one year, that(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a).

Physical force means "violent force—that is, force capable of causing physical pain or injury to another person." Johnson v. United States, 559 U.S. 133, 140 (2010)(emphasis in original).

Section 4B 1.2(a) includes the so-called "residual clause," under which a conviction qualifies as a crime of violence if the offense "otherwise involves conduct that presents a serious potential risk of physical injury to another." United States v. Lara, 590 F. App'x 574, 577 (6th Cir. 2014). Petitioner claims that the sentencing judge relied on the residual clause in finding him to be a career offender under the Federal Sentencing Guidelines.

Petitioner satisfied the first pre-requisite under Hill to challenge his sentence enhancement in a § 2241 petition in that petitioner was sentenced under the mandatory guidelines provisions that existed prior to Booker. The Court also notes that although Johnson v. United States, the...