United States District Court, E.D. Kentucky, Southern Division, London
ROBERT A. HAWKINS, Petitioner,
SANDRA BUTLER, WARDEN, Respondent.
MEMORANDUM OPINION AND ORDER
KAREN K. CALDWELL, District Judge.
Robert A. Hawkins is an inmate at the Federal Correctional Institution-Manchester ("BOP"), located in Manchester, Kentucky. Proceeding without an attorney, Hawkins has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1], challenging the enhancement of his federal sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C.A. § 924(c)(1)(A).
In conducting an initial review of habeas petitions under 28 U.S.C. § 2243, the Court must deny the relief sought "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 pursuant to Rule 1(b)). Because Hawkins is not represented by an attorney, the Court evaluates his petition under a more lenient standard. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). Thus, at this stage of the proceedings, the Court accepts Hawkins's factual allegations as true and liberally construes his legal claims in his favor.
The Court has reviewed Hawkins's habeas petition that that it cannot grant the relief which Hawkins seeks in this action, i.e., an order vacating his 324-month sentence. The Court will therefore deny Hawkins's § 2241 petition and dismiss this proceeding.
In May 2004, Hawkins was indicted for robbery affecting interstate commerce in violation of 18 U.S.C. § 1951(a); use of a firearm in relation to a crime of violence in violation of § 924(c)(1)(A),  and unlawful possession of a firearm by a felon in violation of § 922(g)(1). United States v. Robert A. Hawkins, 3:04-CR-50028-1 (N.D. Ill. 2004) [R. 1, therein] On December 8, 2005, the jury convicted Hawkins of all three offenses, [R. 69, therein], and on March 26, 206, the district court sentenced him to a prison term of 324 months, consisting of concurrent 240-month sentences on Counts One and Three, and a consecutive 84-month sentence on Count Two (use of a firearm in relation to a crime of violence in violation of § 924(c)(1)(A)). [R. 79, therein] Hawkins appealed, but his conviction was affirmed. United States v. Hawkins, 499 F.3d 703 (7th Cir. 2007)
In October 2009, Hawkins filed a motion to vacate his sentence under 28 U.S.C. § 2255, in which he raised sixteen claims alleging ineffective assistance of both trial and appellate counsel. United States v. Robert A. Hawkins, No. 3:09-CV-50243 (N. D. Ill. 2009) One of those claims was that at sentencing, his trial counsel had been ineffective in failing to object to the imposition of both a mandatory minimum sentence and the 84-month consecutive sentence, and in failing to challenge the validity of his prior state court convictions.
On August 6, 2010, the district court entered an order denying Hawkins's § 2255 motion. [R. 11, therein; see also United States v. Robert A. Hawkins, No. 3:09-CV-50243, 2010 WL 31154349 (N. D. Ill. Aug 6, 2010)] As for Hawkins's argument that his trial counsel had failed to object to various aspects of his sentence, the district court stated, "These claims both fail under established Seventh Circuit law, and Hawkins effectively concedes as much in his reply brief." Id., 2010 WL 31154349 at *6. Hawkins appealed the denial of his § 2255 motion, but the Seventh Circuit denied him a certificate of appealability. Robert A. Hawkins v. United States, No. 10-3514 (7th Cir. May 9, 2011).
CLAIMS ASSERTED IN THE § 2241 PETITION
Hawkins challenges his sentence under the ACCA on three grounds. First, Hawkins alleges that the district court improperly determined that he had "brandished" a firearm while committing a crime of violence, which resulted in the imposition of a mandatory minimum sentence of seven years under 18 U.S.C. § 924(c)(1)(A)(ii). Hawkins contends that only the jury, not the district court, could determine that he "brandished" a firearm, and that he is actually innocent of "brandishing" a firearm. Hawkins's argument on this issue implicates both the Fifth Amendment of the U.S. Constitution, which guarantees due process of law, and the Sixth Amendment of the U.S. Constitution, which guarantees a trial by jury in any criminal proceeding.
Second, Hawkins alleges that his appellate counsel failed to challenge his sentence under the ACCA on direct appeal.
Third, Hawkins alleges that the district court improperly determined that he was an armed career criminal, based on his three prior convictions. Hawkins claims that two of his prior convictions should not have counted as predicate convictions under the ACCA because (1) his rights were restored to him in connection with his prior Illinois burglary conviction, and (2) he was denied counsel in the criminal proceeding in which he was convicted of assault and escape. Hawkins asserts that he is also actually innocent of being an armed career criminal. Hawkins's claim on this issue alleges a denial of due process of law under the Fifth Amendment, and a violation of his right to counsel under the Sixth Amendment.
Hawkins cites no legal authority in support of any his claims, but to the extent that he alleges that the district court-instead of the jury-determined certain facts which resulted in the enhancement of his sentence under the ACCA, Hawkins is in essence challenging his sentence under Alleyne v. United States, 133 S.Ct. 2151 (2013). In Alleyne, the Supreme Court held that "[a]ny fact that, by law, increases the penalty for a crime is an element' that must be submitted to the jury and found beyond a reasonable doubt." Id. at 2155.
Hawkins seeks an order declaring that his is actually innocent of "brandishing" a firearm and of being an armed career criminal. Hawkins contends that his 324-month sentence should be vacated and that he should be re-sentenced without any enhancements or mandatory minimum sentences under the ACCA. Hawkins states that he has not filed an application seeking permission to file a second or successive § 2255 motion, because "Illinois U.S. ...