Campbell v. Warden

1

PIERRE A. CAMPBELL, Petitioner, v. WARDEN, FCI McDowell, Respondent.

No. 1:18-cv-01361

United States District Court, S.D. West Virginia, Bluefield Division

September 16, 2021

PROPOSED FINDINGS AND RECOMMENDATION

Dwane L. Tinsley United States Magistrate Judge

Pending before the court is Petitioner's Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 (ECF No. 1). This matter is assigned to the Honorable David A. Faber, Senior United States District Judge, and it is referred to the undersigned United States Magistrate Judge for submission of proposed findings and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons stated herein, it is respectfully RECOMMENDED that the presiding District Judge DISMISS the petitioner's section 2241 petition (ECF No. 1) and this civil action for lack of jurisdiction.

BACKGROUND AND PETITIONER'S CLAIM

A. Petitioner's conviction and direct appeal.

On May 13, 2015, Petitioner pled guilty in the United States District Court for the Northern District of Ohio to one count of conspiracy to possess with intent to distribute and to distribute a mixture or substance containing a detectable amount of heroin, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A) (Count 1), as set forth in a superseding indictment (United States v. Campbell, No. 1:13-cr-00345-CAB-16 (N.D. Ohio), ECF No. 35).

On October 1, 2015, Petitioner was sentenced to 222 months in prison, followed by a four-year term of supervised release. (Id., ECF No. 1594). Petitioner's sentence included an enhancement under § 4B1.1 of the advisory United States Sentencing Guidelines (“USSG”) (“the career offender enhancement”) based upon two prior Ohio convictions for controlled substance offenses.^[1] The United States Court of Appeals for the Sixth Circuit affirmed Petitioner's judgment on October 31, 2016, and a mandate issued on November 29, 2016. (United States v. Campbell, No. 15-4139 (6th Cir.), docketed in his criminal case at ECF No. 1733).

B. Petitioner's post-conviction filings.

On October 17, 2018, prior to filing any § 2255 motion in his sentencing court, Petitioner filed the instant § 2241 petition in this court, challenging his career offender enhancement based upon the Supreme Court's decisions in Descamps v. United States, 133 S.Ct. 2276 (2013) and Mathis v. United States, 136 S.Ct. 2243 (2016), and the Fifth Circuit's decision in United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016). Specifically, Petitioner contends that, in light of these decisions, his prior controlled substance convictions, which served as predicate offenses for the career offender enhancement, do not qualify him as a career offender and that his sentence constitutes a fundamental defect and a miscarriage of justice. He also appears to be challenging additional Guideline enhancements he received for possession of a firearm and having a leadership role in the offense without further explanation or reliance on any new case law.

On June 30, 2020, Petitioner filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 again challenging his career offender enhancement on the same bases. (Case No. 1:13-cr-00345-CAB-16 (N.D. Ohio), ECF No. 2038). That motion is pending before the sentencing court.

ANALYSIS

Petitioner's claim clearly challenges the validity of his sentence, and not the manner in which the sentence is being executed. Motions under 28 U.S.C. § 2255 are the primary remedy for testing the validity of federal judgments and must be filed in the court of conviction, which, in this case, is the United States District Court for the Northern District of Ohio. Normally, a section 2255 motion filed in a court other than the sentencing court should be transferred to the sentencing court.

28 U.S.C. § 2241 is generally used to address matters concerning the execution of a federal sentence, and is not an additional, alternative or supplemental remedy to that provided in section 2255, unless the petitioner can show that the remedy under § 2255 is inadequate or ineffective to test the legality of the petitioner's detention. In re Jones, 226 F.3d 328, 333 (4th Cir. 2000) (“[W]hen § 2255 proves ‘inadequate or ineffective to test the legality of . . . detention,' a federal prisoner may seek a writ of habeas corpus pursuant to § 2241.”). In re Jones relies upon the statutory language presently found in 28 U.S.C. § 2255(e), which states:

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

This section is known as the “savings clause.” The fact that relief under § 2255 is procedurally barred does not render such remedy inadequate or ineffective to test the legality of the petitioner's detention. Id. at 332. Thus, the fact that Petitioner did not previously file a timely § 2255 motion in his sentencing court standing alone, will not permit review under § 2241.

Accordingly, before considering Petitioner's § 2241 petition on its merits, this court must first determine whether the remedy under § 2255 is inadequate or ineffective to test the legality of Petitioner's detention in order that he may pursue such relief under § 2241. Recently, the United States Court of Appeals for the Fourth Circuit modified its test to determine whether the remedy under § 2255 is inadequate or ineffective with respect to sentencing challenges as follows:

(1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to meet the gatekeeping provisions of § 2255(h)(2) for second or successive motions; and (4) due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect.

United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018). In interpreting the phrase “this circuit, ” the Fourth Circuit has held that it is the law of Petitioner's circuit of conviction and sentencing, which in this case is the Sixth Circuit, that controls. See Hahn v. Moseley, 931 F.3d 295, 301 (4th Cir. 2019) (“In evaluating substantive claims under the savings clause, we look to the substantive law of the circuit where a defendant was convicted.”)

Here, Petitioner contends that the decisions in Descamps and Mathis^[2] are new interpretations of statutory law, issued after his opportunity to file a direct appeal and a timely section 2255 motion and, thus, § 2255 is inadequate or ineffective to test the legality of his detention. In his Memorandum in Support, Petitioner also relies upon Hill v. Masters, 836 F.3d 591 (6th Cir. 2016), in which the Sixth Circuit held that a petitioner could use the savings clause to challenge the misapplication of a mandatory guideline provision that resulted in a miscarriage of justice. In Hill, for the purposes of the petition therein, the government conceded that Descamps was retroactive for application in initial § 2255 motions. Additionally, in Hinkle, which was a direct appeal, the Fifth Circuit, relying on Mathis, concluded that a prior Texas controlled substance offense was broader than the definition of a controlled substance offense contained in the career offender guideline and, thus, vacated the sentence and remanded for resentencing without the career offender enhancement.

Based upon these decisions, Petitioner contends that his prior Ohio controlled substance offenses under Ohio Revised Code § 2925.03 are broader than the generic definition of a controlled substance offense under USSG § 4B1.2^[3] and, thus, the career offender enhancement was misapplied in his case and, therefore, his sentence constitutes a miscarriage of justice. Similar to the petitioner in Hinkle, ^[4] who challenged a career offender predicate offense under a Texas statute with similar wording, Petitioner contends that the Ohio statute's inclusion of an “offer to sell” as an alternative means of delivery of a controlled substance renders it broader than the generic definition of a controlled substance offense contained in USSG § 4B1.2. See Ohio Rev. Code Ann. § 2925.03(A)(1) (making it unlawful to “sell or offer to sell a controlled substance or controlled substance analogue.”)

Subsequent to the filing of the instant petition, the Sixth Circuit issued a series of decisions clarifying that the “offer to sell” language in § 2925.03(A)(1) is broader than the generic definition in the guideline and, thus, does not categorically qualify as a predicate controlled substance offense thereunder. The first two cases are United States v. Havis, 927 F.3d 382, 387 (6th Cir. 2019), a direct appeal, in which the court found that “attempt crimes do not qualify as controlled substance offenses” and United States v. Cavazos, 950 F.3d 329, 336-37 (6th Cir. 2020), also a direct appeal, holding that offenses that include “offers to sell” are attempt crimes and therefore, do not qualify as career offender predicates. Then, the Sixth Circuit explicitly found that trafficking convictions under § 2925.03(A)(1) do not qualify as controlled substance offenses for purposes of calculating a career offender designation. See United States v. Palos, 978 F.3d 373, 374-375 (6th Cir. 2020) (“Palos's 2010 conviction for trafficking in cocaine does not qualify as a...