United States District Court, E.D. Kentucky
SOUTHERN DIVISION AT LONDON MEMORANDUM OPINION AND ORDER
KAREN K. CALDWELL, Chief District Judge.
Petitioner Omar Garcia-Valenzuela is an inmate confined by the Bureau of Prisons in the Federal Correctional Institution-Manchester, located in Manchester, Kentucky. Garcia-Valenzuela has filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2241, challenging the 20-year federal sentence which he is currently serving. [R. 1] Garcia-Valenzuela has paid the $5.00 filing fee. [R. 3]
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 Garcia-Valenzuela 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 Garcia Valenzuela's factual allegations as true and liberally construes his legal claims in his favor.
The Court has reviewed Garcia-Valenzuela's habeas petition, but concludes that because the Supreme Court cases upon which Garcia-Valenzuela relies do not apply retroactively to his case, and because Garcia-Valenzuela does not set forth a proper claim of actual innocence, it cannot grant Garcia-Valenzuela relief from his current federal sentence. The Court will therefore deny Garcia-Valenzuela's § 2241 petition and dismiss this proceeding.
On December 13, 2010, Garcia-Valenzuela pled guilty in a Georgia federal court to possessing with intent to distribute at least 500 grams of methamphetamine. United States v. Omar Garcia-Velenzuela, No. 1:10-CR-431-RWS-LTW (N.D.Ga. Dec. 13, 2010). [R. 24, therein] The offense carried a minimum 10-year prison sentence. See 21 U.S.C. § 841(b)(1)(A) (viii). Earlier in the case, however, the government had filed an Information under 21 U.S.C. § 851, which increased the mandatory-minimum sentence from 10 to 20 years, based Garcia-Valenzuela's prior 1997 conviction for trafficking in methamphetamine, a felony under Georgia's state law. [R. 23, therein] At the plea hearing, the district court informed Garcia-Valenzuela about the 20-year minimum sentence based on his prior felony drug offense conviction, and confirmed that Garcia-Valenzuela understood that the twentyyear sentence was "binding" on the district court. [R. 37 therein, at pp. 12-14]
On March 10, 2011, the district court sentenced Garcia-Valenzuela to a 240-month (twenty-year) prison term, which, based on Garcia-Valenzuela's prior state court conviction for drug trafficking, was the mandatory minimum sentence. [R. 29, therein] Garcia-Valenzuela appealed, but on July 19, 2011, the Eleventh Circuit Court of Appeals granted the government's motion for summary affirmance and affirmed the judgment of conviction. [R. 42, therein]
On March 3, 2014, almost three years after the Eleventh Circuit affirmed his federal drug conviction, Garcia-Valenzuela filed a motion in the district court to vacate his sentence under 28 U.S.C. § 2255, alleging that that the district court had improperly sentenced him based on facts not found by a jury or admitted by him, with the relevant fact apparently being his prior state court drug conviction. [R. 44-1, therein] Garcia-Valenzuela argued that Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), newly recognized the right underlying his argument, and that his § 2255 motion was timely because he had filed it within one year of the date on which the Supreme Court decided Alleyne. [ Id. ]
On March 17, 2014, the Magistrate Judge issued a Report and Recommendation ("R & R") concluding that both Garcia-Valenzuela's § 2255 motion and a certificate of appealability should be denied. [R. 45, therein] Garcia-Valenzuela filed objections to the R & R, but the district court overruled them, adopted the R & R, and denied his § 2255 motion. [R. 50, therein; see Garcia-Valenzuela v. United States, No. 1:14-CV-697; No. 1:10-CR-431, 2014 WL 1379540, at *1 (N. D. Ga. Apr. 8, 2014)] The district court concluded that the Magistrate Judge had correctly determined that based on Eleventh Circuit precedent, Alleyne did not apply retroactively, stating, "The Court is not aware of any federal court that has held Alleyne retroactively applicable to cases on collateral review, and Movant [Garcia-Valenzuela] has identified no such case." [ Id. ]
The district court also concluded that the Magistrate Judge had correctly determined that Garcia-Valenzuela's § 2255 motion would have failed even if he had timely presented it. [ Id., at *2] The district court explained that the only fact that triggered the statutory minimum twenty-year sentence for Garcia-Valenzuela was his prior felony drug conviction, but that in Alleyne, the Supreme Court had reiterated that the Constitution does not require the fact of a prior conviction either to be presented to a jury or proven beyond a reasonable doubt. [ Id., (citing Alleyne, 133 S.Ct. at 2160 n. 1)] Garcia-Valenzuela appealed, but the Eleventh Circuit denied him a certificate of appealability, finding that his § 2255 motion was "... plainly barred by § 2255(f)'s one-year statute of limitations...." [R. 61, therein; see Garcia-Valenzuela v. United States, No. 14-12033 (11th Cir. Aug. 25, 2014)]
CLAIMS ASSERTED IN § 2241 PETITION
In his § 2241 petition, Garcia-Valenzuela challenges the enhancement of his sentence based on what he contends are retroactively applicable Supreme Court cases. Garcia-Valenzuela cites Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), in which the Supreme Court examined whether a state-law burglary conviction qualified as a "violent felony" within the meaning of the Armed Career Criminal Act ("the ACCA"), 18 U.S.C. § 924(e). Descamps, 133 S.Ct. at 2282. The Supreme 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.
Garcia-Velenzuela contends that based on Descamps, the trial court should not have considered his prior Georgia state court drug trafficking conviction as a predicate offense for sentencing enhancement purposes. He asserts that a prior conviction qualifies as a predicate offense for enhancement under the ACCA only if the statute's elements are the same as, or narrower than, the elements of 21 U.S.C. § 841(a)(1), but that the Georgia drug trafficking statute under which he was convicted did not contain a "knowledge" element, i.e., the prosecutor was not required to prove the element of mens rea. Garcia-Valenzuela thus argues that under Descamps, the enhancement of his federal sentence, based on his prior state court drug trafficking conviction, was erroneous and unconstitutional.
Garcia-Valenzuela also relies on the Supreme Court's grant/vacate/remand ("GVR") order in Persaud v. United States, 134 S.Ct. 1023 (2014). Like Garcia-Valenzuela, the defendant in Persaud sought to challenge a sentencing ...