Robinson v. Warden, USP BIG Sandy

ZHIVAGO ANWAH ROBINSON, Petitioner, v. WARDEN, USP-BIG SANDY, Respondent.

Civil Action No. 7: 21-046-DCR

United States District Court, E.D. Kentucky, Southern Division, Pikeville

October 5, 2021

MEMORANDUM OPINION AND ORDER

Danny C. Reeves Chief Judge.

Proceeding without counsel, Petitioner Zhivago Anwah Robinson has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C § 2241 seeking relief from his federal sentence. [Record No. 1] The Warden at USP-Big Sandy has filed his response to the petition [Record No. 10] to which Robinson has filed a reply. [Record No. 16] The matter is ripe for review.

I.

In October 2008, Robinson was convicted by a jury in the United States District Court for the District of South Carolina of one count of conspiracy to possess with intent to distribute 500 grams or more of cocaine and 50 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(B) and 846 (Count One); one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and 924(e) (Count Six); and one count of possession with intent to distribute and distribution of a quantity of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count Eight). United States v. Robinson, No 0:08-cr-401-CMC-2 (D.S.C. 2008). Prior to trial, the government filed an Information under 21 U.S.C. § 851, notifying Robinson that he was subject to increased penalties based upon prior drug convictions, specifically: (1) June 2000 South Carolina convictions for possession of crack and possession of crack with intent to distribute in proximity of a park and (2) October 2001 South Carolina convictions for possession of crack with intent to distribute 3rd and possession of crack with intent to distribute in proximity of a school. Id. at Record No. 24.

As set forth in the Presentence Investigation Report (“PSR”), because of the quantity of drugs for which the jury held Robinson individually responsible, coupled with his two prior convictions for felony drug offenses and the Government's filing of an § 851 Information for increased penalties, Robinson faced a statutory mandatory minimum sentence of 10 years to a maximum sentence of Life on Count One; a maximum sentence of 10 years on Count Six; and a maximum sentence of 30 years on Count Eight. [Record No. 12, PSR at p. 1-2, 25] The PSR also noted that Robinson qualified as a “Career Offender” under U.S.S.G. § 4B1.1(a) as a result of his prior felony controlled substance offenses. [Id. at p. 14-17] Based on a Total Offense Level of 37 and a Criminal History Category of VI, the PSR recommended a guideline range for imprisonment of 360 months to life. [Id. at p. 25]

In May 2009, Robinson was sentenced to terms of imprisonment of 360 months as to Counts 1 and 8 and 120 months as to Count 6, all to run concurrently, for a total term of imprisonment of 360 months. United States v. Robinson, No. 0: 08-CR-401-CMC-2 (D.S.C. 2008) at Record No. 161.^[1] Robinson appealed his sentence to the United States Court of Appeals for the Fourth Circuit, arguing that his sentence was erroneous “because his predicate offenses for the career offender designation involved small amounts of drugs, no firearms, and no violence.” United States v. Robinson, No. 09-4425 (4th Cir. Aug. 11, 2010 Opinion). However, the Circuit Court affirmed his sentence. Id.

Robinson filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 on August 1, 2011. United States v. Robinson, No. 0: 08-CR-401-CMC-2 (D.S.C. 2008) at Record No. 238-1. Robinson argued that: (i) the sentencing court committed a “procedural error” by confusing the provisions of 21 U.S.C. § 851 with the Career Offender provisions of the sentencing guidelines, id. at p. 5-7; (ii) his 2000 convictions should not have counted towards his Career Offender designation because his 10-year suspended sentence could not count as a “sentence of imprisonment” exceeding one year and one month, id. at p. 8-9; and (iii) his counsel was ineffective. Id. at p. 9-17. His motion was dismissed in December 2011. Id. at Record No. 259. Robinson appealed to the United States Court of Appeals for the Fourth Circuit, but the Circuit Court denied a Certificate of Appealability and dismissed the appeal. United States v. Robinson, No. 12-6012 (4th Cir. June 5, 2012 Opinion). Thereafter, Robinson's petition for a Writ of Certiorari was denied by the United States Supreme Court. Id.

In June 2014, Robinson filed a motion with the United States Court of Appeals for the Fourth Circuit requesting authorization to file a second or successive § 2255 motion. Robinson argued that he was entitled to relief from his sentence in light of the Fair Sentencing Act of 2010 and that he no longer qualifies as a Career Offender under the Supreme Court's decision in Descamps v. United States, 570 U.S. 254 (2013). Robinson's motion was denied. United States v. Robinson, No. 14-307 (4th Cir. July 3, 2014 Order).

Since that time, Robinson has filed multiple motions and habeas petitions seeking relief from his sentence in both the sentencing court and other United States District Courts. These motions have been either dismissed or denied. See United States v. Robinson, No. 0: 08-CR-401 (D.S.C. 2008) at Record No. 332 (denying motion for reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2)); Robinson v. Warden, No: 1: 17-CV-110 (N.D.W.V. 2017) (§ 2241 petition arguing that Robinson's South Carolina drug convictions no longer qualified as career-offender predicates in light of Mathis v. United States, 136 S.Ct. 2243 (2016); dismissed for failure to use the proper form); Robinson v. Hazelwood, No. 1: 18-CV-10351 (D. Mass. 2018) (§ 2241 petition arguing he was improperly sentenced as a Career Offender; transferred to the District of New Hampshire, No. 1: 18-CV-568 (D.N.H. 2018), and dismissed as duplicative of another § 2241 petition previously filed by Robinson in that Court); Robinson v. Warden, No. 1: 18-CV-287 (D.N.H. 2018) (§ 2241 petition challenging Career Offender designation in light of Mathis; dismissed for lack of jurisdiction on the grounds that 28 U.S.C. § 2255 is not inadequate or ineffective to test the legality of Robinson's detention); United States v. Robinson, 0: 08-CR-401-CMC (D.S.C. 2008) at Record No. 405 (second or successive motion to vacate his sentence under 28 U.S.C. § 2255 filed in October 2019, arguing that Robinson is “actually innocent” of being a Career Offender in light of United States v. Havis, 927 F.3d 382 (6th Cir. 2019); dismissed for lack of jurisdiction because Robinson could not satisfy the requirements of the savings clause of 28 U.S.C. § 2255(e) and because Robinson had not obtained permission from the Fourth Circuit Court of Appeals prior to filing).

He has now turned his efforts to this Court. In his § 2241 petition filed in this case, Robinson once again challenges his designation as a Career Offender, arguing that he is entitled to relief in light of Descamps, Mathis, and United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). [Record No. 1] Specifically, he argues that, at sentencing, the district court erred in failing to conduct a colloquy required under 21 U.S.C. § 851(b). [Record No. 1-1 at p. 11] He also argues that the sentencing court improperly relied upon the PSR at sentencing because the PSR is not a “charging document, a plea agreement or colloquy, or a comparable judicial record” as permitted by Shepard v. United States, 544 U.S. 13 (2005), and that the reliance upon the description of his prior convictions in the PSR, without confirming with Robinson if he affirmed or denied its accuracy, is “inconsistent with the Court's holding in Descamps.” [Id. at p. 23-24] Robinson further argues that, in light of Simmons, his prior conviction for violating South Carolina Code § 44-53-445 no longer qualifies as a “controlled substance offense” under the Career Offender provisions of the guidelines, nor does it qualify as a “felony drug offense” under 21 U.S.C. § 851, because he received a 10-year suspended sentence, not a term of imprisonment. [Id. at p. 24-25]

Robinson invokes the “savings clause” of 28 U.S.C. § 2255(e) to contend that he may assert these challenges to his sentence in a § 2241 petition. However, the Court will dismiss Robinson's § 2241 petition for lack of subject-matter jurisdiction because he cannot show that a motion under § 2255 is inadequate or ineffective to test his conviction or sentence. See Taylor v. Owens, 990 F.3d 493 (6th Cir. 2021).

II.

While 28 U.S.C. § 2241 “grants federal courts the authority to issue writs of habeas corpus to prisoners whose custody violates federal law, ” Taylor, 990 F.3d at 495, section 2441's applicability is severely restricted by 28 U.S.C. § 2255. Id. “[S]ection 2241 typically facilitates only challenges to ‘the execution or manner in which the sentence is served' - those things occurring within the prison.” Id. (quoting Charles v. Chandler, 180 F.3d 753, 755-56 (6th Cir. 1999) (per curiam)). In contrast, “section 2255 now serves as the primary means for a federal prisoner to challenge his conviction or sentence - those things that were ordered in the sentencing court.” Taylor, 990 F.3d at 495. Thus, a federal prisoner generally may not use a § 2241 petition to challenge his conviction or the enhancement of his sentence. See United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001). Instead, a prisoner who wishes to challenge the legality of his conviction or sentence must file a motion under § 2255 in the court that sentenced him. Id. (explaining the distinction between a § 2255 motion and a § 2241 petition).

The “savings clause” of 28 U.S.C. § 2255(e) creates an...