Kelso v. Warden

573 F.Supp.3d 1320

Christopher KELSO, Petitioner,

v.WARDEN, Respondent.

No. 2:19-cv-00035-JMS-MJD

United States District Court, S.D. Indiana, Terre Haute Division.

Signed November 22, 2021

Terry Wayne Tolliver, Brattain Minnix Garcia, Indianapolis, IN, for Petitioner.

James Robert Wood, United States Attorney's Office, Indianapolis, IN, for Respondent.

Order Denying Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Directing Entry of Final Judgment

Jane Magnus-Stinson, Judge

Petitioner Christopher Kelso, a federal inmate previously confined in this district, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Mr. Kelso asserts that his sentence for conspiring to distribute cocaine was improperly enhanced because his prior Alabama felony drug convictions do not qualify as predicate offenses under 21 U.S.C. § 841(b)(1) and § 851 after Mathis v. United States , 579 U.S. 500, 136 S. Ct. 2243, 195 L.Ed.2d 604 (2016). For the reasons explained below, his petition is denied .

I. Factual and Procedural Background

In 2009, Mr. Kelso was convicted by a jury in the Eastern District of Tennessee of conspiracy to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1)(A), and 841(b)(1)(B) (Count One); and conspiracy to commit financial transactions involving the proceeds of an unlawful activity (i.e., money laundering), in violation of 18 U.S.C. § 1956(h) and (a)(1)(A)(i) (Count Two). United States v. Kelso , No. 3:06-cr-00147-TAV-HBG-6 (E.D. Tenn. 2008) (hereinafter "Crim. Dkt."); United States v. Kelso , 468 F. App'x 551, 553 (6th Cir. 2012). Final Judgment was entered December 10, 2009. Crim. Dkt. 385.

The United States filed an information under 21 U.S.C. § 851 listing three prior felony drug convictions imposed on November 12, 1992, by the Circuit Court of Morgan County, Alabama, in case numbers CC-1991-441, CC-1991-728, and CC-1992-224. Crim. Dkt. 124. The § 851 Information stated:

In support of this notice, the United States represents and alleges that defendant was convicted and sentenced in the Circuit Court of Morgan County, Alabama, in case number CC-1991-441 on November 12, 1992, for the felony offense of unlawful possession of controlled substance; defendant was convicted and sentenced in the Circuit Court of Morgan County, Alabama, in case number CC-1991-728 on November 12, 1992, for the felony offense of unlawful possession of controlled substance; and, defendant was convicted and sentenced in the Circuit Court of Morgan County, Alabama, in case number CC-1992-224 on November 12, 1992, for the felony offense of unlawful possession of controlled substance.

Crim. Dkt. 124 at p. 1-2.

Based upon a finding that Mr. Kelso had three prior felony drug convictions in Alabama, Mr. Kelso was subject to a mandatory life sentence pursuant to 21 U.S.C. § 841(b)(1)(A) (eff. Apr. 15, 2009 to Aug. 2, 2010). The district court ultimately imposed a life sentence on Count One and a 240-month term of imprisonment on Count Two, to be served concurrently. See Crim. Dkt. 402, p. 52; Crim. Dkt. 385. Mr. Kelso's convictions were affirmed on appeal. Kelso , 468 F. App'x at 557.

Mr. Kelso now seeks relief under § 2241 challenging his life sentence for Count One. The United States responded, dkt 12, and counsel was appointed to file a reply on behalf of Mr. Kelso. Dkts. 14-16. Appointed counsel was specifically asked to address "whether Mathis is retroactive where the United States does not concede this point, what substantive law applies to the petitioner's claims, and whether under that substantive law Mr. Kelso would be entitled to relief." Dkt. 14 at p. 1. The United States filed a surreply addressing the new arguments raised in the reply and pro se supplemental reply. Dkts. 17 and 20.

II. Section 2241 Standard

A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Shepherd v. Krueger , 911 F.3d 861, 862 (7th Cir. 2018) ; Webster v. Daniels , 784 F.3d 1123, 1124 (7th Cir. 2015) (en banc). Under very limited circumstances, however, a prisoner may employ § 2241 to challenge his federal conviction or sentence. Webster , 784 F.3d at 1124. This is because "[§] 2241 authorizes federal courts to issue writs of habeas corpus, but § 2255(e) makes § 2241 unavailable to a federal prisoner unless it ‘appears that the remedy by motion [under § 2255 ] is inadequate or ineffective to test the legality of [the] detention.’ " Roundtree v. Krueger , 910 F.3d 312, 313 (7th Cir. 2018). Section 2255(e) is known as the "savings clause." The Seventh Circuit has held that § 2255 is " ‘inadequate or ineffective’ when it cannot be used to address novel developments in either statutory or constitutional law, whether those developments concern the conviction or the sentence." Id. (citing e.g., In re Davenport , 147 F.3d 605 (7th Cir. 1998) ; Brown v. Caraway , 719 F.3d 583 (7th Cir. 2013) ; Webster , 784 F.3d at 1123 ). Whether § 2255 is inadequate or ineffective "focus[es] on procedures rather than outcomes." Taylor v. Gilkey , 314 F.3d 832, 835 (7th Cir. 2002).

The Seventh Circuit construed the savings clause in In re Davenport , holding:

A procedure for postconviction relief can be fairly termed inadequate when it is so configured as to deny a convicted defendant any opportunity for judicial rectification of so fundamental a defect in his conviction as having been imprisoned for a nonexistent offense.

In re Davenport , 147 F.3d 605, 611 (7th Cir. 1998). "[S]omething more than a lack of success with a section 2255 motion must exist before the savings clause is satisfied." Webster , 784 F.3d at 1136.¹

Specifically, to fit within the savings clause following Davenport , a petitioner must meet three conditions: "(1) the petitioner must rely on a case of statutory interpretation (because invoking such a case cannot secure authorization for a second § 2255 motion); (2) the new rule must be previously unavailable and apply retroactively; and (3) the error asserted must be grave enough to be deemed a miscarriage of justice, such as the conviction of an innocent defendant." Davis v. Cross , 863 F.3d 962, 964 (7th Cir. 2017) ; Brown v. Caraway , 719 F.3d 583, 586 (7th Cir. 2013).

III. Discussion

Citing Mathis , Mr. Kelso challenges his enhanced sentence arguing that his three prior Alabama drug convictions no longer qualify as "felony drug offenses" under §§ 841(b)(1) and 851. He therefore concludes that his sentence on Count One was improperly enhanced. See dkt. 1. Mr. Kelso seeks to be resentenced without the recidivist enhancement provided under §§ 841(b)(1) and 851. Dkt. 2, p. 18. Whether the § 2241 petition meets the three requirements to invoke the savings clause of § 2255(e) is discussed below.

A. Statutory-Interpretation Case

First, as previously mentioned, Mr. Kelso's § 2241 petition relies on Mathis. "That case reiterated that (1) the modified categorical approach applies only to divisible offenses, and (2) a state statute that lists alternative means, as opposed to elements, of committing the state offense defines a single, indivisible offense for the categorical analysis." Plunkett v. Sproul , 16 F.4th 248, 251 (7th Cir. 2021) (citing Mathis, 136 S. Ct. at 2248, 2253, 2257 ). The Seventh Circuit has held that the categorical approach set forth in Mathis applies to determine whether a state law drug conviction is a "felony drug offense" as defined under § 802(44). United States v. Elder , 900 F.3d 491, 501 (7th Cir. 2018). The categorical approach "focus[es] solely on whether the elements of the crime of conviction sufficiently match the elements of [the] generic [crime], while ignoring the particular facts of the case." Mathis , 136 S. Ct. at 2248.

Mathis is a case of statutory interpretation, such that Mr. Kelso could not raise the issue in a successive § 2255 motion. Dawkins v. United States , 829 F.3d 549, 551 (7th Cir. 2016) ( Mathis "is a case of statutory interpretation"); United States v. Bess , 655 F. App'x 518 (8th Cir. 2016) (recognizing that Mathis inquiry was "whether the statutory alternatives were means or elements"). Accordingly, the Court finds Mr. Kelso meets the first savings clause requirement.

B. Retroactivity

The United States argues that Mathis is not retroactive. In support, it cites Sotelo v. United States , 922 F.3d 848, 854 (7th Cir. 2019), a case brought pursuant to 28 U.S.C. § 2255, for the holding that Mathis does not offer an independent retroactive decision permitting a collateral attack.

Admittedly, the Seventh Circuit "has not always taken a uniform approach to answering questions about Mathis ’s retroactivity." Plunkett , 16 F.4th at 254 (proceeding on assumption that Mathis applies retroactively on collateral review). It has, however, stated that Mathis presumptively applies retroactively on collateral review. Chazen v. Marske , 938 F.3d 851, 861 (7th Cir. 2019) (stating that the Seventh Circuit has "suggested (without deciding) that Mathis is retroactive"); Holt v. United States , 843 F.3d 720, 722 (7th Cir. 2016) (observing that "substantive decisions such as Mathis presumptively apply retroactively on collateral review"). In Hanson v. United States , 941 F.3d 874, 878 (7th Cir. 2019), the Seventh Circuit stated that it "found that ‘ Mathis can provide the basis for [a] § 2241 petition ... under the Armed Career Criminal Act’ because the sentence at issue mandated a minimum sentence of incarceration." Id. (quoting Chazen , 938 F.3d at 862 ). Because this Court accepts the Seventh Circuit's presumption of retroactivity, the third saving clause factor is now considered.

C. Miscarriage of Justice

The final question is whether there has been a miscarriage of justice as a result of imposing a mandatory life sentence on Mr. Kelso as a result of his three prior Alabama felony drug convictions pursuant to § 841(b)(1)(A) (eff. Apr. 15, 2009 to Aug. 2, 2010). According to Mr. Kelso, the increased statutory minimum...