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Jordan v. Butler

United States District Court, E.D. Kentucky, Southern Division, London

December 2, 2014

HENRY JORDAN, a/k/a Henry Jordan Broadwell, a/k/a Hank Jordan, a/k/a Douglas Henry Broadwell, Petitioner,
v.
SANDRA BUTLER, WARDEN, Respondent.

MEMORANDUM OPINION AND ORDER

DANNY C. REEVES, District Judge.

Henry Jordan[1] is an inmate confined by the Bureau of Prisons ("BOP") at the Federal Correctional Institution-Manchester in Manchester, Kentucky. Proceeding without an attorney, Jordan has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. [Record No. 1] Jordan challenges the enhancement of his federal sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C.A. § 924(e), based on the Supreme Court's holding in Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276 (2013). Jordan has paid the $5.00 filing fee. [Record No. 5]

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)). The Court evaluates his petition under a more lenient standard because Jordan 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), overruled on other grounds Jones v. Bock, 549 U.S. 199 (2007). Thus, at this stage of the proceedings, the Court accepts Jordan's factual allegations as true and liberally construes his legal claims in his favor.

Following review, the Court will dismiss Jordan's § 2241 petition.

I.

In August 2004, a sealed indictment was returned in a Tennessee federal court, charging Jordan with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count 1), and with possession of marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D) (Count 2). United States v. Henry Jordan, a/k/a, "Hank Jordan, a/k/a "Henry Broadwell, " a/k/a "Douglas Henry Broadwell, " No. 1:04-CR-129 (E.D. Tenn., 2004) [Record No. 1, therein] On March 8, 2005, the Government filed a superseding indictment against Jordan, which included the two original counts and added a third count charging him with possessing a firearm in furtherance of the drug trafficking crime alleged in Court Two in violation of 18 U.S.C. § 924(c)(1) (Count 3). [Record No. 25, therein]

On October 6, 2005, Jordan pleaded guilty to all three counts of the superseding indictment without a written plea agreement. [Record No. 40, therein] Because Jordan qualified as an armed career criminal based on his prior criminal convictions, he faced a mandatory minimum of fifteen years (180 months) on the first count. The third count carried a mandatory minimum sentence of five years (60 months) which was required to run consecutively to any other sentence imposed under 18 U.S.C. § 924(c)(1)(C)(ii). On January 19, 2006, the district court sentenced Jordan to a 240-month prison term, consisting of concurrent terms of imprisonment of 180 months on Court One and 60 months on Count Two, and a consecutive term of 60 months of Count Three. [Record Nos. 43 and 45, therein] Jordan appealed, but his conviction was affirmed. United States v. Jordan, 308 F.Appx. 990 (6th Cir. 2009).[2]

In April 2009, Jordan filed a motion to vacate his sentence under 28 U.S.C. § 2255, alleging that he had been deprived of his right to effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution. [Record No. 70, therein] In October 2011, the district court denied Jordan's claims alleging that his counsel had failed to object to both his classification under the ACCA and the statutorily mandated five-year consecutive term of imprisonment on his § 924(c) conviction. However, the district court concluded that an evidentiary hearing was needed to establish whether Jordan's counsel: (i) was ineffective based on his failure to communicate a tentative plea offer from the government, which would have permitted Jordan to plead guilty to Counts Two and Three of the superseding indictment and would have dismissed Count One; and (ii) labored under a conflict of interest while representing Jordan. [Record Nos. 85 and 86, therein]; Jordan v. United States, Nos. 1:09-CV-96, 1:04-CR-129, 2011 WL 5143049 (E. D. Tenn. Oct. 28, 2011).

In October 2012, the district court denied Jordan's remaining two claims alleging ineffective assistance of counsel, concluding that Jordan had not carried his burden of proof regarding either claim. [Record No. 100, therein]; See also Jordan v. United States, Nos. 1:09-CV-96, 1:04-CR-129, 2012 WL 5304176 (E. D. Tenn. Oct. 25, 2012). The district court also denied Jordan's motions to alter or amend the order denying his § 2255 motion and to make additional findings of fact. [Record No. 105, therein] Jordan appealed, but the Sixth Circuit denied his request for a certificate of appealability, finding that he had not made a substantial showing of the denial of federal constitutional right. [Record No. 113, therein]; See Jordan v. United States, No. 13-5069 (6th Cir. July 12, 2013).

II.

In this § 2241 petition, Jordan broadly challenges his status as an armed career criminal and the resulting enhancement of his sentence under 18 U.S.C. § 924(e). Jordan provides no specific facts in support of his claim but construing his petition broadly, he claims that his prior criminal conviction for third degree burglary was not a proper predicate offense under the ACCA. Jordan specifically alleges that his enhanced sentence violates both the Fifth and Sixth Amendments to the United States Constitution.

Jordan relies on Descamps in support of his argument that his federal sentence should not have been enhanced. In Descamps, the Supreme Court examined whether a state-law burglary conviction qualified as a "violent felony" within the meaning of the ACCA. Descamps, 133 S.Ct. at 2282. The Court held that, when determining whether a prior conviction qualifies as a predicate offense under the ACCA, sentencing courts may not apply the "modified categorical approach" when 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 Supreme 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. Again, Jordan does not provide specific facts explaining how Descamps applies to his case, but he nevertheless contends that Descamps renders him actually innocent of his sentence enhancement, applies retroactively to his case, and affords him relief from his sentence. [Record No. 1, p. 8]

III.

As a general rule, 28 U.S.C. § 2255 provides the correct avenue to challenge a federal conviction or sentence, whereas a federal prisoner may file a § 2241 petition if he is challenging the execution of his sentence ( i.e., the BOP's calculation of sentence credits or other issues affecting the length of his sentence). See United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001); see also Charles v. Chandler, 180 F.3d 753, 755-56 (6th Cir. 1999). In short, 28 U.S.C. § 2255 provides the primary avenue for federal prisoners seeking relief from an unlawful conviction or sentence, not § 2241. See Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 2003). Jordan does not contest the execution of his sentence, such as the computation of sentence credits or parole eligibility, issues which fall under the purview of § 2241. Instead, he contends that based on the holding of Decamps, his ...


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