United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
KAREN K. CALDWELL, Chief District Judge.
Frank Stallings is an inmate confined at the Federal Correctional Institution in Manchester, Kentucky. Proceeding without an attorney, Stallings has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. [R. 1] The Court has granted Stallings's motion to waive payment of the filing fee by prior order. [R. 5]
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 Stallings'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).
On June 23, 2005, Stallings was arraigned in West Palm Beach, Florida and charged with possession with intent to distribute 500 or more grams of cocaine in violation of 21 U.S.C. § 841(a) and conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. On April 12, 2006, Stallings agreed to plead guilty to the charges.
However, prior to the July 21, 2006, sentencing hearing, Stallings filed objections to the presentence report, contending that he should not be considered a career offender under U.S.S.G. § 4B1.1(a) because his two prior drug convictions were entered 12 and 14 years before his current offense, the prior convictions had not been proved by jury verdict, and applying the enhancement would triple his sentence, rendering it unreasonable under 18 U.S.C. §3553(a) and United States v. Booker, 543 U.S. 220 (2005). He therefore argued that he should be sentenced below the applicable guidelines range. But in his plea agreement Stallings had promised not to argue for a sentence below the guidelines range. Upon the government's motion, on July 24, 2006, the Court found Stallings in breach of the plea agreement and his guilty plea was ordered withdrawn.
The government then gave notice pursuant to 21 U.S.C. § 851 of its intent to seek enhanced penalties in light of Stallings's prior felony drug convictions. These included a March 7, 1995, Florida conviction in Case No. 93-7804-CF-AO2 for trafficking in cocaine, and an April 16, 1991, Florida conviction in Case No. 91-347-CF-AO2 for possession of marijuana with intent to sell. If either one of these prior offenses constituted valid predicates, under 21 U.S.C. § 841(b) Stallings faced a statutory minimum of 120 months imprisonment and a maximum of life in prison.
A few days later, Stallings agreed to plead guilty. At the sentencing hearing, Stallings did not challenge either the validity of his prior convictions or their use as valid predicate offenses for the career offender enhancement. United States v. Stallings, No. 06-14542-HH, 2006 WL 5062504, at *8-9 (11th Cir. 2006) (Brief of Appellee). On July 31, 2006, the Court sentenced Stallings to serve a 240-month term of incarceration on each count to be served concurrently with one another. United States v. Stallings, No. 9:05-CR-80092-DTKH-4 (S.D. Fla. 2005). Assuming the validity of both predicate offenses, Stallings's offense level was 34, resulting in a guideline range of 262 to 327 months. United States v. Stallings, No. 06-14542-HH, 2006 WL 5062503, at *6 (11th Cir. 2006) (Brief of Appellant). Stallings's 240-month sentence was therefore below the guidelines range.
On direct appeal, Stallings did not challenge the propriety of using either conviction as a valid predicate for the career offender enhancement. Instead, he argued that his sentence was substantively unreasonable, even though the trial court exercised its discretion to depart downward by applying the minor role participant section found in U.S.S.G. § 3B1.2(b). On September 6, 2007, the Eleventh Circuit affirmed Stallings's sentence over his objection that it was unfair to apply U.S.S.G. § 4B1.1(a)'s career offender enhancement to him and that his sentence was substantively unreasonable. United States v. Stallings, 240 F.Appx. 359 (11th Cir. 2007).
Stallings then filed a motion to vacate his sentence under 28 U.S.C. § 2255, in which he claimed, without explanation or elucidation, that his counsel was constitutionally ineffective and that his 1991 marijuana conviction did not constitute a valid predicate offense to support the career offender enhancement. In recommending denial of the latter claim, the government noted that:
In any event, however, the conviction clearly was a qualifying one. The details are set forth in paragraph 52 of movant's PSI. According to the probable cause affidavit, movant was the driver of a vehicle which engaged police in a high-speed chase. The vehicle was later searched and found to contain 14 small baggies of marijuana. Movant pled and was adjudicated guilty of possession of marijuana with intent to sell, and sentenced to 18 months imprisonment. This qualifies as a "prior felony conviction" for a "controlled substance offense" under the plain language of USSG §4B1.1 (career offender provisions).
Stallings v. United States, No. 9:08-CV-81001-DTKH (S.D. Fla. 2008) [R. 8 therein, pp. 16-17]. The Court agreed, and denied Stallings's motion on February 18, 2009. The Eleventh Circuit denied a certificate of appealability on August 20, 2009.
On December 20, 2010, Stallings filed a habeas corpus petition pursuant to 28 U.S.C. § 2241 in which he argued that neither of his prior state drug convictions were valid predicate offenses to support the career offender enhancement. Citing Johnson v. United States, 559 U.S. 133 (2010) and Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), Stallings contended that his 1991 conviction involved less than 20 grams of marijuana and was therefore not punishable for more than one year under Fla. Stat. § 775.082-.084, and that his 1993 conviction involved less than 28 grams of cocaine and therefore did not constitute trafficking under Fla. Stat. § 893.135(1)(b). The district court denied the claim, finding that Stallings could not use § 2241 to challenge to his below-guidelines sentence, citing Gilbert v. United States, 640 F.3d 1293, 1315 (11th Cir. 2011) (holding that 28 U.S.C. § 2255(e) "does not authorize a federal prisoner to bring in a § 2241 petition a claim, which would otherwise be barred by § 2255(h), that the sentencing guidelines were misapplied in a way that resulted in a longer sentence not exceeding the statutory maximum."). The Eleventh Circuit confirmed that habeas relief was not available under § 2241 to address Stallings's claims of sentencing error. Stallings v. Warden, FCC Coleman-Low, No. 5:10-CV-675-JDW-TBS (M.D. Fla. 2010), aff'd, 519 F.Appx. 675 (11th Cir. 2013).
In his current petition, Stallings again contends that his sentence was improperly enhanced, this time under Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276 (2013). [R. 1, p. 5] Specifically, Stallings contends that the locus of conduct proscribed by Florida's cocaine trafficking statute, Fla. Stat. § 893.135, is broader than the generic version of controlled substances offenses set forth in U.S.S.G. ...