United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
DAVID L. BUNNING, District Judge.
Kurt Harrington is an inmate confined at the United States Penitentiary - McCreary in Pine Knot, Kentucky. Proceeding without counsel, Harrington has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc #1)
The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F.Appx. 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 pursuant to Rule 1(b)). The Court evaluates Harrington'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 the petitioner's factual allegations as true, and his legal claims are liberally construed in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
Factual and Procedural Background
On December 12, 2008, in Iowa City, Iowa, Harrington and five others were charged in a thirteen count indictment for various drug trafficking crimes, including for conspiracy to engage in drug trafficking in heroin and cocaine resulting in death. The prosecution arose from the October 5, 2008, drug overdose and death of Joseph Van Hoe, and the narcotics were eventually traced back to Harrington and his co-defendants. United States v. Harrington, No. 3:08-CR-74-JAJ, TJS-4 (S.D. Iowa 2008).
On July 27, 2009, the government filed a notice pursuant to 21 U.S.C. § 841(b)(1)(A), (B)-©, indicating that because Harrington had a prior 2002 felony drug conviction for the manufacture and delivery of a controlled substance in Cook County, Illinois, he was subject to enhanced penalties, up to and including life imprisonment. Shortly thereafter, Harrington pled guilty to Counts 10 and 11 for the sale and distribution of heroin and crack cocaine in violation of 21 U.S.C. § 841(a)(1), leaving five counts remaining for trial. (Doc. #161, 197; see also Doc. # 291, 299 therein)
Following a five-day trial, on August 28, 2009, a jury found Harrington guilty of all remaining counts, including conspiracy to distribute heroin and crack cocaine resulting in death in violation of 21 U.S.C. §§ 841(b)(1)(A), ©, 846; distribution of heroin resulting in death in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)©, 2; distribution of heroin in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)©; possession with intent to distribute heroin and crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)©, 2; and possession with intent to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)©, 2. In response to special interrogatories, the jury specifically found that Harrington was responsible for the distribution of 50 or more grams of crack cocaine, and that the government had proved beyond a reasonable doubt that Harrington's distribution of heroin was a "contributing factor" in Van Hoe's death. (Doc. #211, pp. 2-3 therein)
On March 26, 2010, the trial court sentenced Harrington to five 360-month terms of incarceration on the drug trafficking counts, and to life imprisonment on the two counts involving drug trafficking resulting in Van Hoe's death pursuant to 21 U.S.C. § 841(b)(1)(A), all to be served concurrently. (Doc. #307 therein). On direct appeal, Harrington challenged the enhancement of his sentence based upon his prior felony conviction, but the Eighth Circuit affirmed on August 27, 2010. United States v. Harrington, 617 F.3d 1063 (8th Cir. 2010). Harrington did not challenge the correctness of the jury instruction regarding the sentencing enhancement in light of Van Hoe's death, but his co-conspirator did, albeit without success. United States v. Faulkner, 636 F.3d 1009, 1021-23 (8th Cir. 2011).
On November 4, 2011, Harrington filed a timely motion to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. Harrington contended that his trial counsel was ineffective for several reasons, and separately claimed that the trial court incorrectly "instructed the jury that essentially to prove that Movant caused the death of the victim by distribution of heroin the government only need show that the heroin was a contributing' factor." (Doc. #1-1, pp. 9, 16, 30) The trial court denied Harrington's § 2255 motion on December 17, 2012. In doing so, the trial court rejected Harrington's argument that the jury instructions regarding the § 841(b)(1)© enhancement should have required the jury to find that his activities were more than just a contributing cause of Van Hoe's death. The trial court noted that its jury instruction adhered to controlling Eighth Circuit precedent at the time. (Doc. # 1-1, pp. 56-57 (citing United States v. McIntosh, 236 F.3d 968, 972-73 (8th Cir. 2001) ("Congress intended § 841(b)(1)(A)'s enhancement to apply without regard to the principles of proximate cause or the foreseeability of death or serious bodily injury."))). On May 17, 2013, the Eighth Circuit denied his request for a certificate of appealability. Harrington v. United States, No. 4:11-CV-526-JAJ (S.D. Iowa 2011). There is no record that Harrington sought en banc review from the Eighth Circuit or filed a petition for a writ of certiorari with the Supreme Court.
On January 27, 2014, the Supreme Court held that for purposes of § 841(b)(1)(A)'s sentencing enhancement provision, death or serious bodily injury only "results from" the drug trafficking when the use of the controlled substance does not merely "contribute to" - but instead is the "but-for cause of" - the victim's death or injury. Burrage v. United States, ___ U.S. ___, 134 S.Ct. 881, 891 (2014) ("The language Congress enacted requires death to result from' use of the unlawfully distributed drug, not from a combination of factors to which drug use merely contributed."). The case was on review from the Eighth Circuit and, like Harrington, the petitioner's claim that § 841(b)(1)(A) requires more than a showing of contribution to the victim's death had failed under the Eighth Circuit's controlling decision in McIntosh. Id. at 886.
On April 11, 2014, Harrington therefore filed a motion in the Eighth Circuit seeking permission pursuant to 28 U.S.C. § 2244 to file a second or successive motion for relief under 28 U.S.C. § 2255 to avail himself of Burrage. Both the United States and the Eighth Circuit acknowledged the applicability of Burrage to Harrington's case, but noted that his request did not satisfy § 2255(h) because his claims were not predicated on new evidence, and Burrage involved a matter of statutory interpretation, not a new rule of constitutional law made retroactively applicable to cases on collateral review by the Supreme Court. (Doc. # 1-1, pp. 75-77, 79) Both likewise suggested that a habeas corpus petition under 28 U.S.C. § 2241 might, but would not necessarily, provide a vehicle for his claim. (Doc. # 1-1, pp. 77-78, 80) The Eighth Circuit denied his motion for authorization on September 3, 2014. Harrington v. United States, No. 14-1861 (8th Cir. 2014). Harrington filed his § 2241 petition in this Court eight days later. (Doc. # 1)
Claims raised in his habeas petition
In his petition, Harrington reiterates his contention that his sentence was improperly enhanced because under Burrage, the jury should have been instructed that it must find that his drug trafficking activities were a "proximate cause" of Van Hoe's death before § 841(b)(1)(A)'s enhancement could be applied. (Doc. # 1, pp. 6-10) Harrington also claims that his trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984), because he failed to request a jury instruction requiring the jury to find ...