United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge.
Shannon Keith Harris has filed a pro se petition for a writ
of habeas corpus. [Record No. 1] Harris contends that several
prior offenses should not have been used to enhance his
federal sentence because they did not qualify as “drug
trafficking offenses” under the United States
Sentencing Guidelines and should have counted as only one
prior offense. The Court now conducts an initial screening of
Harris's petition. 28 U.S.C. § 2243; Alexander
v. Northern Bureau of Prisons, 419 F. App'x 544, 545
(6th Cir. 2011). Because Harris's claims cannot be
asserted in a petition under 28 U.S.C. § 2241, and
because they are substantively meritless, the requested
relief will be denied.
April 11, 2007, a federal jury in Galveston, Texas, found
Harris guilty of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1); possessing a firearm
in furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c); possessing fifty or more grams of
cocaine base with intent to distribute it in violation of 21
U.S.C. § 841(a)(1); and of conspiring to possess fifty
or more grams of cocaine base with intent to distribute it in
violation of 21 U.S.C. § 846. The trial court sentenced
Harris on January 31, 2008, to a 120-month term of
incarceration on the felon-in-possession charge and to a
consecutive 60-month term of incarceration for possessing a
firearm in furtherance of a drug trafficking crime.
was subject to 360 months to life imprisonment for both drug
trafficking convictions under the United States Sentencing
Guidelines even without application of any sentencing
enhancements. However, Harris had 19 prior convictions for
offenses involving theft, violence, drug trafficking and
robbery. Because at least two of these convictions
constituted “felony drug offenses” as that term
is defined in 21 U.S.C. § 802(44), Harris was subject to
a mandatory life term of imprisonment under 21 U.S.C. §
841(b)(1)(A). The trial court imposed a life sentence on both
drug trafficking convictions and ran them concurrently with
his other terms of incarceration. United States v.
Harris, No. 3:03-cr-14-1 (S.D. Tex. 2003).
Fifth Circuit affirmed Harris's conviction and sentence
on direct appeal. United States v. Harris, 566 F.3d
422 (5th Cir. 2009). In 2011, the trial court denied
Harris's two motions for relief from his conviction and
sentence filed under 28 U.S.C. § 2255. Harris v.
United States, No. 3:11-cv-280 (S.D. Tex. 2011). This
Court has denied Harris relief from his convictions pursuant
to § 2241 twice before. Harris v. Holland, No.
6: 13-73-DLB (E.D. Ky. 2013); Harris v. Holland, No.
6: 13-223-DCR (E.D. Ky. 2013).
argues in his current petition that the enhancement of his
drug trafficking sentence was improper in light of
Descamps v. United States, ___ U.S. ___, 133 S.Ct.
2276 (2013), which according to the Sixth Circuit's
recent decision in Hill v. Masters, 836 F.3d 591
(6th Cir. 2016), is retroactively applicable to cases on
collateral review. Harris also invokes Mathis v. United
States, ___ U.S. ___, 136 S.Ct. 2243 (2016), and relies
on the Fifth Circuit's conclusion in United States v.
Hinkle, 832 F.3d 569, 575-76 (5th Cir. 2016), that Texas
Health & Safety Code § 481.112(a) (i.e., the statute
that criminalizes delivery of a controlled substance and
under which Harris was at least twice convicted) is an
indivisible statute defining only a single offense. [Record
No. 1 at 3-4, 6-7]
separately contends that three of his prior offenses should
have been treated as “related” under U.S.S.G.
§ 4A1.2(a)(2) and count as one for purposes of
enhancement because the sentences were imposed on the same
day and ordered to run concurrently with one another.
Id. at 8-11. He further argues that his convictions
for delivery of a controlled substance did not constitute
“drug trafficking offenses” as defined by the
United States Sentencing Guidelines because the Texas
criminal statute includes an “offer to sell” as a
form of delivery. [Record No. 1 at 9-10]
Harris makes a variety of additional, conclusory arguments,
including that: (1) application of the 2005 amendment to
U.S.S.G. § 2L1.2 would violate the Ex Post Facto Clause;
(2) his Texas conviction for third-degree burglary derived
from an unconstitutionally-vague statute in light of
Johnson v. United States, ___ U.S. ___, 135 S.Ct.
2551 (2015); and (3) his Texas conviction for possession of a
controlled substance did not qualify as a “drug
trafficking offense” under U.S.S.G. §§ 2L1.2
or 4B1.2. [Record No. 1 at 10-12] As explained more fully
below, these arguments are predicated upon Harris's
fundamental misunderstanding of both the prior state
convictions used to enhance his sentence and the applicable
Court noted in addressing Harris's last petition, the
current petition is subject to rejection as an abuse of the
writ because his claims could and should have been asserted
in a prior habeas proceeding. McClesky v. Zant, 499
U.S. 467, 480-84 (1991); Schlup v. Delo, 513 U.S.
298, 318 n. 34 (1995) (“An ‘abusive petition'
occurs ‘where a prisoner files a petition raising
grounds that were available but not relied upon in a prior
petition, or engages in other conduct that disentitle[s] him
to the relief he seeks.'”); Rosales-Garcia v.
Holland, 322 F.3d 386, 398-99 (6th Cir. 2003). Indeed, a
number of his claims were rejected by the trial court when it
denied his initial § 2255 motion.
claim that several of his prior offenses were
“related” under § 4A1.2(a)(2) and,
therefore, should have been counted as only one prior offense
is a claim of ordinary trial error that could have been
asserted on direct appeal. Thus, it is not a claim he may
pursue under § 2241. Capaldi v. Pontesso, 135
F.3d 1122, 1123 (6th Cir.2003); Goudelock v.
Quintana, No. 5:13-423-DCR, 2014 WL 6577946, at *1-2
(E.D. Ky. Feb. 19, 2014) (citing Hernandez v.
Lamanna, 16 F. App'x 317, 320 (6th Cir. 2001)). The
claim is also meritless because the offenses were committed
on separate occasions and were punctuated by an intervening
arrest. [Record No. 1-1] In short, the convictions were
properly counted as separate predicates. U.S.S.G. §
4A1.2(a)(2) (“Prior sentences always are counted
separately if the sentences were imposed for offenses that
were separated by an intervening arrest.”); United
States v. Hill, 440 F.3d 292, 297 (6th Cir. 2006);
United States v. Brady, 988 F.2d 664, 670 (6th Cir.
1993) (en banc).
also argues that the Texas statute under which he was
convicted for third-degree burglary is unconstitutionally
vague under Johnson. But Harris cannot challenge the
validity of his underlying predicate offenses in this §
2241 proceeding as he is no longer “in custody”
pursuant to those judgments. He may only do so -if at all -
in a § 2254 proceeding, filed in the proper venue, after
exhausting his state court remedies. 28 U.S.C. §§
his references to Descamps, Hill,
Mathis, and Hinkle, Harris's primary
argument is that he did not qualify as a career offender
under U.S.S.G. § 4B1.1(a) because his 1997 conviction
for third-degree armed robbery [Record No. 1-1 at 1] did not
constitute a “crime of violence” as defined in
U.S.S.G. § 4B1.2(a), and because neither his conviction
for first-degree delivery of a controlled substance nor his
conviction for second-degree possession of a controlled
substance [Record No. ...