United States District Court, E.D. Kentucky, Southern Division, London
LARRY E. LEWIS, Petitioner,
J.C. HOLLAND, WARDEN, Respondent.
MEMORANDUM OPINION AND ORDER
DAVID L. BUNNING, District Judge.
Larry E. Lewis is an inmate confined at the Federal Correctional Institution in Manchester, Kentucky. Proceeding pro se, Lewis has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1], challenging his conviction and the enhancement of his federal sentence based on a prior state court drug conviction. Lewis requests that his conviction and sentence under 21 U.S.C. § 841(b)(1)(A) be vacated.
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 Lewis 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 Lewis's factual allegations as true and liberally construes his legal claims in his favor.
Having reviewed the petition, the Court must deny it because Lewis cannot pursue his claims under 28 U.S.C. § 2241.
In October of 1999, a jury in the Northern District of Florida convicted Lewis of conspiracy to possess with intent to distribute cocaine and cocaine base and two counts of possession with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. § 841(a)(1). On October 25, 1999, he was sentenced to a term of 360 months imprisonment. United States v. Larry Lewis, Case No. 3:99cr30/RV (N.D. Fla. 1999). Lewis appealed, and his conviction and sentence were affirmed on August 25, 2000. [R. 261 therein].
Subsequently, on May 11, 2005, Lewis filed a motion in the trial court pursuant to 28 U.S.C. § 2255, contending that his sentence should be vacated or set aside based on the then recent Supreme Court decision in United States v. Booker, 125 S.Ct. 738 (2005). [R. 292 therein]. On June 28, 2005, Lewis's § 2255 motion was denied as being time-barred. [R. 294].
CLAIMS ASSERTED IN § 2241 PETITION
Lewis filed the present habeas petition on March 13, 2014, claiming that he is actually innocent of the offenses for which he was convicted under 21 U.S.C. § 841(a)(1). Lewis also claims that the trial court unlawfully imposed an enhanced sentence under 21 U.S.C. § 841(b)(1)(A), based on a prior state court drug conviction for simple possession that should not have been considered a prior felony drug offense.
A. Actual innocence of 21 U.S.C. § 841(a)(1) offenses
In support of his claim that he is actually innocent of the offenses for which he was convicted under 21 U.S.C. § 841(a)(1), Lewis relies primarily on Alleyne v. United States, 133 S.Ct. 2151 (2013), and the Supreme Court's recent decision in Burrage v. United States, 134 S.Ct. 881 (2014), both of which post-date the finality of his conviction in the underlying criminal case. Lewis contends that Alleyne and Burrage apply retroactively to his case. In Alleyne, the Supreme Court applied its precedent in Apprendi and held that, if the existence of a particular fact would increase the applicable mandatory minimum federal sentence, that fact is an "element" of the crime that the jury must find beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2155 (overruling Harris v. United States, 536 U.S. 545, (2002)).
B. Erroneous enhancement of his sentence
To support his claim that the trial court erroneously enhanced his sentence based upon his prior Florida state court conviction for simple possession, which no longer qualifies as a predicate offense authorizing the enhancement of his sentence, Lewis relies on Descamps v. United States, 133 S.Ct. 2276 (2013), and Moncrieffe v. Holder, 133 S.Ct. 1678 (2013). Because both cases post-date the finality of his conviction in the underlying criminal case, Lewis contends that Descamps and Moncrieffe apply retroactively.
In Descamps, the Supreme Court examined whether a state-law burglary conviction was a "violent felony" within the meaning of the ACCA. Descamps, 133 S.Ct. at 2282. The Court held that sentencing courts may not apply the "modified categorical approach, " for purposes of determining whether a prior conviction qualifies as a predicate offense under the ACCA, if the crime of which the defendant was convicted has a single, indivisible set of elements. Id. at 2282-83 (describing the differences between the "categorical approach" and the "modified categorical approach"). The Court clarified that a sentencing court "may use the modified approach only to determine which alternative element in a divisible statute formed the basis of the defendant's conviction." 133 S.Ct. at 2293. Lewis argues ...