Lopez v. Merlak

BALDOMERO LOPEZ, Petitioner, v. WARDEN STEVEN MERLAK, Respondent.

CASE NO. 4:17-cv-621

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO

August 2, 2019

OPINION & ORDER

[Resolving Doc. 1]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:

Baldomero Lopez files a 28 U.S.C. § 2241 habeas petition challenging his sentence.¹ At Petitioner Lopez's 2004 sentencing, he received the Sentencing Guidelines career-offender enhancement based on his 1988 Florida burglary conviction and his 1996 drug conviction. Petitioner claims that he received a longer sentence than he should have received because his Florida burglary conviction no longer qualifies as a predicate offense for the career-offender enhancement.

On June 14, 2019, Magistrate Judge David Ruiz issued a Report and Recommendation ("R&R") recommending that the Court deny Lopez's habeas petition because Petitioner Lopez had not shown that § 2241 gave him a right to challenge his sentence enhancement.² Neither party filed objections to the R&R, and absent objection, the Court may adopt the R&R without review.³

Nonetheless, the Court has reviewed the R&R. While the Court agrees that Petitionerhas not shown he qualifies for habeas relief, the Court comes to this conclusion on different grounds. For the following reasons, the Court DISMISSES Lopez's § 2241 habeas petition.

Discussion

In his petition, Lopez claims that he no longer qualifies as a career offender under U.S. Sentencing Guideline § 4B1.1. The § 4B1.1 career-offender enhancement applies to defendants convicted for a "crime of violence" or "controlled substance offense" felony who have at least two prior "crime of violence" or "controlled substance offense" convictions.⁴ Petitioner argues that the Supreme Court's Descamps v. United States, 570 U.S. 254 (2013), and Mathis v. United States, 136 S. Ct. 2243 (2016), decisions apply retroactively and argues that his Florida burglary conviction no longer qualifies as a "crime of violence".

Petitioner has previously filed two losing § 2255 habeas petitions.⁵ He brings the present petition under § 2241.

A. Legal Standard

Federal prisoners typically bring sentencing challenges under 28 U.S.C. § 2255. However, when a prisoner cannot meet the § 2255(h) second or successive petition requirements, and the prisoner shows that § 2255 remedies are "inadequate or ineffective to test the legality of his detention," the prisoner can challenge his sentence under § 2241 via the § 2255(e) savings clause.⁶

In Hill v. Masters, the Sixth Circuit recognized narrow circumstances in which the § 2255 remedy is "inadequate or ineffective" for challenging a sentence enhancement andrecognized some circumstances where petitioners may challenge an enhancement under § 2241:

(1) prisoners who were sentenced under the mandatory guidelines regime pre-United States v. Booker, 543 U.S. 220 (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.⁷

B. Petitioner Has Not Shown that He Is Entitled to Challenge His Sentence Under § 2241

Petitioner claims he meets the three Hill requirements. However, he satisfies only two of the three Hill requirements.

Petitioner's December 2004 Middle District of Georgia sentence satisfies the first Hill v. Master requirement.⁸ Petitioner Lopez was sentenced under the mandatory sentencing guidelines regime pre-United States v. Booker, 543 U.S. 220 (2005). Lopez also satisfies the second Hill requirement—Lopez cannot bring a § 2255 successive petition because neither Descamps nor Mathis created "a new rule of constitutional law, made retroactive to cases on collateral review."⁹

This leaves the third requirement: Did the Supreme Court make a retroactive change in statutory interpretation that made the previous conviction not a predicate offense for a career-offender enhancement? The R&R found that Petitioner Lopez did not make this showing.

This Court agrees that Petitioner does not satisfy this requirement, but for different reasons.

The R&R found that the Descamps and Mathis Supreme Court decisions do not apply retroactively in collateral proceedings.¹⁰ This was wrong. As the Sixth Circuit and other courts have recognized, these decisions apply retroactively in collateral proceedings.¹¹

Rather, Descamps and Mathis just do not satisfy § 2255's statutory eligibility requirements because these decisions were based upon statutory interpretation. They were not new rules of constitutional law applied retroactively.¹²

"When seeking to petition under § 2241 based on a misapplied sentence, the petitioner must show (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."¹³

So, Petitioner is correct that Descamps and Mathis are "retroactive change[s] in statutory interpretation by the Supreme Court" that occurred after his 2004 sentencing. But does Petitioner Lopez show that, as a result of these retroactively applicable statutoryinterpretation rulings, his Florida burglary conviction no longer qualifies as a "crime of violence" for the Guidelines career-offender enhancement?

When Petitioner was sentenced in 2004, his 1988 Florida burglary conviction could meet U.S. Sentencing Guideline § 4B1.2(a)'s "crime of violence" definition: (1) by qualifying as a "burglary of a dwelling," one of the specifically enumerated crimes of violence (enumerated-offense clause); (2) by having as an element the use, attempted use, or threatened use of physical force against the person of another (elements clause); or (3) by presenting a serious potential risk of physical injury to another (residual clause).¹⁴

After Descamps and Mathis, Petitioner's Florida burglary statute conviction does not qualify as a crime of violence under the Guidelines' enumerated offense clause.¹⁵ However, there are still two other ways that the burglary conviction could have qualified as a crime of violence.

While the burglary conviction clearly does not qualify as a crime of violence under theelements clause,¹⁶ the conviction does qualify as a crime of violence under the residual clause for purposes of this petition.¹⁷

If a Sixth Circuit court sentenced Petitioner, Petitioner's conviction may not have qualified as a crime of violence. The Sixth Circuit has found that an analogous South Carolina burglary offense was not a crime of violence under the residual clause.¹⁸

However, this circuit's law does not control. Though the Sixth Circuit has not made this explicit, the Hill ruling and its reasoning indicate that the sentencing court's circuit case law controls.¹⁹

In the present case, the Eleventh Circuit has concluded that a Florida burglary conviction is a residual clause crime of violence.²⁰ Since Petitioner's conviction still qualifies in the Eleventh Circuit as a predicate offense under the residual clause, Petitioner does not satisfy the third Hill requirement, that "a subsequent, retroactive change in statutory interpretation by the Supreme Court reveals that a previous conviction is not a predicateoffense for a career-offender enhancement."²¹ As such, Petitioner has not met the § 2255(e) savings clause requirements to challenge his sentence enhancement under § 2241.

Conclusion

For the reasons stated, the Court DISMISSES Lopez's § 2241 habeas petition for lack of jurisdiction.

IT IS SO ORDERED.

Dated: August 2, 2019

s/ James S. Gwin

JAMES S. GWIN

UNITED STATES DISTRICT JUDGE

1. Doc. 1. Respondent opposes. Doc. 8. Petitioner replied, Doc. 11, and filed a supplement, Doc. 12.

2. Doc. 16.

3. See Thomas v. Arn, 474 U.S. 140, 149-52 (1985). The Federal Magistrates Act requires a district court to conduct a de novo review of the portions of an R&R to which the parties have objected. 28 U.S.C. § 636(b)(1).

4. U.S. Sentencing Guidelines Manual § 4B1.1 (U.S. Sentencing Comm'n 2019).

5. See United States v. Lopez, No. 7:04-cr-10 (M.D. Ga.), ECF No. 56, 130 (the first and second § 2255 petitions).

6. Hill v. Masters, 836 F.3d 591, 594-95 (6th Cir. 2016).

7. Id. at 599-600.

8. See Lopez, No. 7:04-cr-10 (M.D. Ga.), ECF Nos. 39, 42.

9. See In re Conzelmann, 872 F.3d 375, 376-77 (6th Cir. 2017) (explaining that under § 2255(h), "[a] second or successive collateral attack is permissible only if the court of appeals certifies that it rests on (1) newly discovered evidence or (2) 'a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable'").

10. Doc. 16 at 8-9 (citing Conzelmann, 872 F.3d at 377, and Williams v. United States, No. 17-5695, 2018 WL 3089199, at *2 (6th Cir. Jan. 11, 2018)).

11. E.g., Muir v. Quintana, No. 17-6050, 2018 WL 4276133, at *2 (6th Cir. Apr. 26, 2018) (concluding that "Descamps and Mathis apply retroactively" on both direct and collateral review when considering whether a petitioner met the Hill requirements to bring a § 2241 sentence-enhancement challenge, since Descamps and Mathis's holdings were "old rules" under Whorton v. Bockting, 549 U.S. 406, 416 (2007)); Sutton v. Quintana, No. 16-6534, 2017 WL 4677548, at *2 (6th Cir. July 12, 2017) (same, but only addressing Mathis); Perez v. United States, 730 F. App'x 804, 807 (11th Cir. 2018) ("Descamps and Mathis . . . are retroactively applicable on collateral review.").

12. See Conzelmann, 872 F.3d at 376-77 (explaining that Mathis did not satisfy § 2255(h)(2) to file a second or successive petition because Mathis "did not announce a new rule of constitutional law made retroactive by the Supreme Court"); Williams, 2018 WL 3089199, at *2 (explaining that the petitioner did not satisfy the one-year statute of limitations under § 2255(f)(3) to file his first petition because "neit...