Smith v. Breckon

ANTONIO W. SMITH, Petitioner, v. M. BRECKON, Warden, Respondent.

Civil Action No. 7:19CV00016

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION

March 13, 2020

MEMORANDUM OPINION

By: Norman K. Moon Senior United States District Judge

Antonio W. Smith, a federal inmate proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, in which he challenges his sentence imposed by the United States District Court for the Southern District of Georgia ("SDGA") on February 3, 2004. Respondent has moved to dismiss the petition in its entirety, arguing that this court lacks jurisdiction over it (Dkt. No. 10). Smith has responded (Dkt. No. 21), and he also filed two motions to amend his petition and/or response, both of which the court granted. Accordingly, I also have considered the arguments set forth in those supplemental responses (Dkt. Nos. 26, 32), as well as in a document recently submitted by Smith, which has been docketed as "additional evidence" (Dkt. No. 34).

For the reasons discussed in this opinion, I conclude that jurisdiction is lacking over Smith's § 2241 petition and will therefore dismiss it without prejudice.

I. BACKGROUND

A. Procedural History

On November 6, 2003, in the SDGA, Smith pled guilty to one count of bank robbery, in violation of 18 U.S.C. § 2113(d), in case number 3:03-cr-00011, and to Counts 1 and 2 of an indictment originally filed in the District of Connecticut and transferred to the SDGA, case number 3:03-cr-00022. Count 1 of the second indictment charged Smith with aggravated bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), and Count 2 charged him with possession of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1).

The sentencing court found that Smith was a career offender under United States Sentencing Guideline ("U.S.S.G.") § 4B1.1, based on his prior Connecticut convictions for the sale of a controlled substance (a controlled substance offense pursuant to § 4B1.2(b)), and three crimes of violence pursuant to § 4B1.2(a): first-degree assault, escape, and first-degree robbery. (Presentence Investigation Report ("PSR") ¶ 35, Dkt. No. 14 (referencing convictions that appear in ¶¶ 39-41, 43).)¹ This resulted in a total offense level of 34; without the career offender enhancement, it would have been a 28. (Id.) His criminal history category was a VI, which is what it would have been even without the career offender enhancement. (Id. ¶¶ 48-49.) The court sentenced him to a total of 346 months in the custody of the Bureau of Prisons, consisting of 240 months on Count 1 in case number 3:03CR00011, and, in case number 3:03CR00022, 262 months as to Count 1 (to be served concurrently) and 84 months as to Count 2 (to be served consecutively). Each term of imprisonment was the low end of the then-mandatory guideline range.² Judgment was entered against Smith on February 10, 2004. He did not appeal.

In February 2005, Smith filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255 in the SDGA, which that court denied on March 17, 2006. Again, he did not appeal. He later filed an application for leave to file a successive § 2255 motion, which the Eleventh Circuit denied. In re Smith, Case No. 13-10118-A (11th Cir. Feb. 4, 2013). Shortly thereafter, he sought relief in the sentencing court through a document called an "Application for Review ofSentence." United States v. Smith, No. 3:03-cr-00011, ECF No. 74, which challenged his sentence on a number of grounds, all of which alleged that the sentencing court had erred in its Guidelines determinations. The court construed as a § 2255 and denied it because Smith had not obtained authorization from the Eleventh Circuit to file a second or successive motion. Id., ECF No. 76.

On March 23, 2016, Smith applied again to the Eleventh Circuit for leave to file a second or successive motion pursuant to § 2255, raising all of the grounds that he raises in his instant § 2241 petition, although he provided considerably less argument and authority there. See Application, In re Smith, No. 16-12794-J (11th Cir. May 23, 2016). The Eleventh Circuit denied the application. In re Smith, No. 16-12794-J (11th Cir. June 20, 2016). In doing so, the Eleventh Circuit ruled on several issues that are directly implicated by Smith's petition here and will be discussed in more detail in analyzing Smith's claims.

Smith filed this petition on January 8, 2019. (Dkt. No. 1.)

B. Smith's Petition and the Pertinent Sentencing Guidelines

In general terms, Smith's petition asserts that changes in the law subsequent to his sentencing mean that he no longer qualifies as a career offender under U.S.S.G. § 4B1.1(a). As it existed when Smith was sentenced under the 2003 version of the Guidelines, (see PSR ¶ 12), that provision stated:

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) 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). Smith does not contest that he met the first and second of thoserequirements. Instead, his petition claims that subsection (3) is no longer satisfied because his drug conviction is not a "controlled substance offense" under current law and because the other three convictions are no longer "crimes of violence."

As it existed when Smith was sentenced, U.S.S.G. § 4B1.2(a) defined a crime of violence as:

any 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) (2003). Additionally, in the commentary to that provision, application note 1 stated that the term "crime of violence" includes a number of specific offenses, listing murder, manslaughter, kidnapping, aggravated assault, and robbery, among others.³ In both the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), which has a similar provision, and § 4B1.2(a), the language of subsection (1) is known as the "elements clause" or "force clause."⁴ The first half of subsection (2) is called the enumerated clause because it enumerates generic crimes, and the Eleventh Circuit also has referred to the list of offenses in the commentary as part of the enumerated clause. In re Sams, 830 F.3d 1234, 1241 (11th Cir. 2016). The secondhalf of subsection (2)—"or otherwise involves conduct that presents a serious potential risk of physical injury to another"—is often referred to as the "residual clause."

Considering all of Smith's filings, and construing them liberally, he asserts three different bases for relief. First, he claims that pursuant to the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which struck down the similar residual clause of the ACCA as unconstitutionally vague, his prior Connecticut convictions for first-degree assault and first-degree robbery are no longer crimes of violence under § 4B1.2. According to him, Johnson's holding applies to the career offender guideline if the Guidelines were mandatory, and thus, the residual clause in § 4B1.2(a)(2) of the mandatory Guidelines is unconstitutional. As a result of eliminating the residual clause, his argument continues, his prior convictions for first-degree assault and first-degree robbery are no longer "crimes of violence" because neither qualifies under the elements/force clause or the enumerated clause of § 4B1.2.

His second claim posits that, pursuant to Chambers v. United States, 555 U.S. 122 (2009), his escape conviction is no longer a crime of violence.

In his third claim, he relies on United States v. Savage, 542 F.3d 959 (2d Cir. 2008), and argues that his Connecticut conviction for sale of a controlled substance is not a "controlled substance offense" under § 4B1.2(b). As part of this discussion, he also cites to the Supreme Court's decisions in Taylor v. United States, 495 U.S. 575 (1990), Descamps v. United States, 570 U.S. 254 (2013), and Mathis v. United States, 136 S. Ct. 2243 (2016).

II. DISCUSSION

A. Requirements for Proceeding Under the Savings Clause and Wheeler

Typically, a petitioner challenging the validity of his conviction or sentence must proceed under 28 U.S.C. § 2255 in the district where he was convicted. However, the "savings clause" in§ 2255 allows a prisoner to challenge the validity of his conviction and/or his sentence by filing a § 2241 petition, if he demonstrates that § 2255 is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). This provision "is commonly referred to as the 'savings clause' as it arguably saves § 2255 from unconstitutionally suspending habeas corpus." Lester v. Flournoy, 909 F.3d 708, 711 (4th Cir. 2018) ("Lester I").

In United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), the Fourth Circuit explained that where a petitioner is challenging the legality of his sentence (as opposed to his conviction), § 2255 will be deemed "inadequate or ineffective" only when all of the following four conditions are satisfied:

(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;⁵ and

(4) Due to this retroactive change, the sentence

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