MEMORANDUM OPINION & ORDER
Jimmy Cato, a/k/a Jimmie Cato,*fn1 is an inmate confined in the United States Penitentiary-McCreary in Pine Knot, Kentucky. Proceeding without an attorney, Cato has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his federal sentence. [R. 1] Cato has paid the $5.00 filing fee.
The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F. App'x 544, 545 (6th Cir. 2011). The Court must deny the petition "if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions under Rule 1(b)). The Court evaluates Cato's petition under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts Cato's factual allegations as true, and construes his legal claims in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). Having reviewed the petition, the Court will deny it as an abuse of the writ because Cato could have asserted the same challenges in a § 2241 petition he recently filed in this Court, but did not do so. Therefore, Cato cannot assert these claims in this proceeding.
In August 1992, a federal jury in Texas found Cato guilty of conspiracy to distribute cocaine, and he was sentenced to a 420-month prison term, plus a 5-year term of supervised release. United States v. Cato, No. 1:91-CR-2-14 (E. D. Tex. 1991). Cato appealed, arguing that the sentencing court misapplied the federal rules of evidence by admitting testimony about his prior conviction for selling crack cocaine. The Court of Appeals affirmed Cato's conviction. United States v. Cato, 9 F.3d 1546 (5th Cir. 1993).
In March 1997, Cato filed a 28 U.S.C. § 2255 motion to vacate, correct or set aside his conviction and sentence. Cato v. United States, No. 1:97-CV-163-HC-WCR (E.D. Tex. 1997). In December 2000, the magistrate issued a report and recommendation to deny Cato's § 2255 motion. [R. 23.] Cato filed objections, but on February 29, 2000, the district court adopted the magistrate's recommendation and denied Cato's § 2255 motion. [R. 27.]
In October 2001, Cato filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in California, arguing that (1) his indictment was defective because it did not specify the amount of controlled substance he conspired to distribute, and (2) a jury did not determine the amount of controlled substance he conspired to distribute. Cato v. Herrera, No. 2:01-CV-09289-VBK (C.D. Cal. 2001).
In April 2002, the district court transferred Cato's petition to the sentencing court, concluding that (1) although Cato alleged that his claims fell under § 2241, he was in reality challenging the legality of his drug conviction; (2) Cato could pursue such a challenge only by way of a § 2255 motion; (3) Cato did not establish that his remedy under § 2255 had been an inadequate or ineffective means of challenging his detention; and (4) transfer of Cato's claims was warranted because the court lacked jurisdiction to address claims which fell under § 2255.
[R. 17.] After Cato's § 2241 petition was transferred to Texas, the district court there denied the petition without prejudice as an unauthorized successive § 2255 motion. Cato v. United States, No. 1:02-CV-346-RAS (E.D. Tex. 2002). [R. 22.] It does not appear from the docket sheet of that proceeding that Cato appealed the denial of his petition.
In October 2011, Cato filed a motion in his 1992 criminal proceeding, seeking the retroactive application of the federal sentencing guidelines and a reduction of his sentence under 18 U.S.C. § 3582, which the district court denied in August 2012. United States v. Cato, No. 1:91-CR-2, [R. 62]. On March 4, 2013, Cato filed a motion in his criminal proceeding seeking relief from his criminal judgment under Federal Rule of Civil Procedure 60(b)(4) and (b)(6), arguing (1) that the court lacked jurisdiction to enhance his sentence based on a "non-predicated offense under Texas State Law....," and (2) that his 420-month sentence exceeded the statutory maximum authorized by statute. [R. 64].
On March 13, 2013, the United States filed a response objecting to Cato's motion. [R. 65]. On April 3, 2013, the sentencing court struck Cato's Rule 60(b) motion from the record, but directed the Clerk to re-characterize it as a motion to vacate under 28 U.S.C. § 2255 and assign it a civil case number. [R. 67]. At last check, that § 2255 motion is currently pending in the sentencing court.
On February 14, 2013, Cato filed a § 2241 petition in this Court, claiming that his sentence was excessive, and that pursuant to DePierre v. United States, __ U.S.__, 131 S. Ct. 2225 (2011),*fn2 Sawyer v. Whitley, 505 U.S. 333 (1992),*fn3 and Gilbert v. United States,609 F.3d 1159 (11th Cir. 2010),*fn4 his drug conviction was unconstitutional. Cato v. Holland, No. 6:13-CV-34-KKC (E. D. Ky. 2013) ("the First Kentucky § 2241 Petition").
Cato argued that in light of Depierre, both the indictment under which he was charged and the submitted jury instructions in his criminal proceeding violated the Fifth Amendment's due process clause because they failed to specify the type and quantity of cocaine that he conspired to distribute; that he was charged with and convicted of a nonexistent drug offense; and that DePierre applied retroactively to him. Cato alleged that because Depierre, Sawyer, and Gilbert were handed down after he was convicted, his remedy under § 2255 was inadequate and ineffective to challenge his detention and that he was actually innocent of the drug offense of which he was convicted.
On March 20, 2013, while the First Kentucky § 2241 Petition was pending, Cato filed this proceeding ("the Second Kentucky § 2241 Petition"), alleging that the sentencing court improperly sentenced him as a career offender under 18 U.S.C. § 851 and U.S.S.G. 4B1.1 based on a prior Texas state court conviction (Possession with Intent to Deliver a Controlled Substance). In the Second Kentucky § 2241 Petition, Cato alleges that the conduct of which he was convicted in the Texas state court did not qualify as a predicate offense which would have warranted the enhancement of his federal sentence. Cato alleges that the sentencing court violated his constitutional rights by using that Texas state sentence to enhance his federal sentence.
On March 26, 2013, the Court entered a Memorandum Opinion and Order denying the First Kentucky § 2241 Petition. [Id., R. 6]. The Court determined that: (1) Cato could not avail himself of the savings clause of § 2255 because DePierre broadened -- not narrowed -- the scope of conduct proscribed by § 841(b) and did not de-criminalize the conduct of which Cato was convicted; (2) even assuming DePierre substantively supported Cato's claims, it did not apply retroactively to cases on collateral review, such as Cato's; and (3) Cato could not use § 2241 to challenge either his enhanced sentence or his status as a career offender ...