Webb v. Owens

DAVID WEBB, Petitioner, v. WARDEN ANGELA OWENS, Respondent.

No. 2:18-cv-02366-TLP-tmp

United States District Court, W.D. Tennessee, Western Division

September 20, 2021

ORDER DISMISSING PETITION UNDER 28 U.S.C. § 2241, CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

THOMAS L. PARKER UNITED STATES DISTRICT JUDGE

Petitioner David Webb petitioned pro se under 28 U.S.C. § 2241 for a writ of habeas corpus (“§ 2241 Petition”).^[1] (ECF No. 1.) Respondent FCI Warden Angela Owens answered the § 2241 Petition, and Petitioner replied. (ECF Nos. 8 & 12.) For the reasons below, the Court DISMISSES the § 2241 Petition.

PROCEDURAL HISTORY

I. Petitioner's Federal Criminal Case and Collateral Challenges

In 1998, a jury in the Eastern District of Arkansas convicted Petitioner of armed bank robbery and carrying or using a firearm during a crime of violence. (United States v Webb, No. 4:97-cr-00238-JM-1 (E.D. Ark. 1998), ECF No 41; see also Webb v. United States, 46 Fed.Appx. 860, 861 (8th Cir. 2002).) Before the trial, the United States filed a notice of enhanced penalty under 18 U.S.C. § 3559. (ECF No. 8-1 at PageID 42; see also United States v. Webb, No. 4:97-cr-00238-JM-1, ECF No. 25.) The notice stated that, if convicted of armed bank robbery, Petitioner qualified for “an enhanced punishment of life imprisonment” because of his earlier convictions for “three qualifying serious violent felonies.” (ECF No. 8-1 at PagelD 42-43; see also Webb v. United States, 46 Fed.Appx. at 861.) The notice listed three state convictions: (1) a 1972 Arkansas robbery conviction; (2) a 1980 Missouri escape conviction; and (3) a 1987 Arkansas aggravated robbery conviction. (ECF No. 8-1 at PageID 43.)

After Petitioner's conviction in 1998, the district judge sentenced him to life imprisonment. (United States v. Webb, No. 4:97-cr-00238-JM-1, ECF No. 41.) Petitioner did not challenge the qualifying state court convictions during sentencing. Webb v. United States, 46 Fed.Appx. at 861-62. And so the district court imposed a life sentence under 18 U.S.C. § 3559, the “three strikes law.” Id. Petitioner appealed, and the Eighth Circuit affirmed his conviction and sentence. United States v. Webb, 168 F.3d 496, 1999 WL 23160 at *1 (8th Cir. 1999).

Petitioner then moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Webb v. United States, 46 Fed.Appx. at 862. The district court denied the motion but certified two issues for appeal: “(1) whether trial counsel was ineffective for failing to challenge the 1972 robbery conviction and the1980 escape conviction, and (2) whether the Government's failure to plead the earlier state convictions in the indictment and to submit them to the jury under the reasonable doubt standard violated the Sixth and Fourteenth Amendments.” Id. The Eighth Circuit rejected Petitioner's arguments and affirmed the denial of his motion. Id.

In 2010, Petitioner moved for reduction and modification of his sentence and the district court denied that motion. (United States v. Webb, No. 4:97-cr-00238-JM-1, ECF Nos. 92 & 94.) In 2017, Petitioner filed-and the district court denied-a second motion to vacate his sentence. (United States v. Webb, No. 4:97-cr-00238-JM-1, ECF Nos. 125 & 127.) In 2019, Petitioner filed-and the district court denied-a third motion to vacate his sentence. (United States v. Webb, No. 4:97-cr-00238-JM-1, ECF Nos. 129 & 132.)

Petitioner also petitioned under 28 U.S.C. § 2241 in the Central District of California, “seeking review of his sentence resulting from an armed bank robbery conviction.” Webb v. Entzel, No. ED CV 17-1131 SVW (MRW), 2017 U.S. Dist. LEXIS 190070 *1 (C.D. Cal. Nov. 15, 2017). That court dismissed the habeas petition for lack of jurisdiction because Petitioner- although formerly an inmate at a federal prison facility in Victorville, California-was transferred to a facility in Tennessee shortly after filing the petition. Id.

II. Petitioner's § 2241 Petition

Petitioner now argues here that his 1972 Arkansas robbery conviction does not qualify as a crime of violence under the career offender enhancement in the sentencing guidelines, U.S.S.G. § 4B1.1. (ECF No. 1-1 at PageID 12.) Petitioner argues that he has satisfied the third requirement under Hill v. Masters, 836 F.3d 591, 599-600 (6th Cir. 2016), because he was sentenced under the mandatory guideline scheme and because his prior convictions do not qualify as crimes of violence under the career offender enhancement in § 4B1.1. (ECF No. 1-1 at PageID 10-11.)

But Petitioner did not receive a guideline enhancement as a career offender under § 4B1.1-he received instead a statutory enhancement under 18 U.S.C. § 3559(c). See Webb v. United States, 46 Fed.Appx. at 861. Because the district court imposed the mandatory life sentence under § 3559(c), it did not rely on the sentencing guidelines when calculating Petitioner's sentence. (ECF No. 9, PSR ¶¶ 55-56.) Petitioner does challenge a statutory enhancement, however, and the United States has conceded that Webb can use the savings clause to attack that enhancement. (ECF No. 8 at PageID 34.) The Court addresses this challenge below.

STANDARD OF REVIEW

This Court may issue a writ of habeas corpus under 28 U.S.C § 2241(c)(3) when a prisoner “is in custody in violation of the Constitution or laws or treaties of the United States.” Federal prisoners may obtain relief only under limited circumstances. See Taylor v. Owens, 990 F.3d 493, 495 (6th Cir. 2021). The “savings clause” in § 2255 provides:

An application for a writ of habeas corpus on 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.

28 U.S.C. § 2255(e).

Applying the savings clause, “courts have uniformly held that claims asserted by federal prisoners that seek to challenge their convictions or imposition of their sentence shall be filed in the sentencing court under 28 U.S.C. § 2255, and that claims seeking to challenge the execution or manner in which the sentence is served shall be filed in the court having jurisdiction over the prisoner's custodian under 28 U.S.C. § 2241.” Charles v. Chandler, 180 F.3d 753, 755-56 (6th Cir. 1999) (per curiam) (internal citations omitted); see also Wright v. Spaulding, 939 F.3d 695, 698 (6th Cir. 2019) (“The rule was simple: § 2255 for attacks on a sentence, § 2241 for other challenges to detention.”). In other words, “[§] 2255 is the primary avenue for relief for federal prisoners protesting the legality of their sentence, while § 2241 is appropriate for claims challenging the execution or manner in which the sentence is served.” United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001); see also Taylor, 990 F.3d at 496 (“Indeed, 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.”).

Because Petitioner seeks to challenge his sentence, habeas relief is unavailable to him under § 2241 unless relief under § 2255 is inadequate or ineffective. See Taylor, 990 F.3d at 496. And Petitioner bears the burden of proving that § 2255 is inadequate or ineffective and that the savings clause applies. Id. at 499. But “[t]he circumstances in which § 2255 is inadequate and ineffective are narrow.” Peterman, 249 F.3d at 461.

“[T]he § 2255 remedy is not considered inadequate or ineffective simply because § 2255 relief has already been denied, or because the petitioner is procedurally barred from pursuing relief under § 2255, or because the petitioner has been denied permission to file a second or successive motion to vacate.” Charles, 180 F.3d at 756 (citations omitted). In Wright, the Sixth Circuit stated:

A federal prisoner who has already filed a § 2255 motion and cannot file another one cannot access § 2241 just because a new Supreme Court case hints his conviction or sentence may be defective. Rather, the prisoner must also show that binding adverse authority (or some greater obstacle) left him with “no reasonable opportunity” to make his argument any earlier, “either when he was convicted and appealed or later when he filed a motion for postconviction relief under section 2255[.]” Otherwise, § 2255 is simply not inadequate or ineffective to test his claim. And nothing in this court's later precedents gainsays this principle.

939 F.3d at 703 (internal citations omitted).

A prisoner may obtain relief under § 2241 only if he is “actually innocent” of the crime of which he has been convicted. Martin v. Perez, 319 F.3d 799, 804-805 (6th Cir. 2003); see also Charles, 180 F.3d at 757 (“No circuit court to date has permitted a post-AEDPA petitioner who was not effectively making a claim of ‘actual innocence' to utilize § 2241 (via § 2255's ‘savings clause') as a way of circumventing § 2255's restrictions on the filing of second or successive habeas petitions.”). “Actual innocence means factual innocence, ” not just legal insufficiency. Paulino v. United States, 352 F.3d 1056, 1061 (6th Cir. 2003) (citing Bousley v. United States, 523 U.S. 614, 623 (1998)). Until recently, “[c]laims alleging ‘actual innocence' of a sentencing enhancement [could not] be raised under § 2241.” Jones v. Castillo, 489 Fed.Appx. 864, 866 (6th Cir. 2012).

In Hill v. Masters, the Sixth Circuit held that inmates may challenge their sentences under § 2241 if they can show “(1) a case of statutory interpretation,...