United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT.
February 2008, a federal jury in Greenville, Tennessee found
Harlan Culbertson guilty of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). Because
Culbertson had numerous prior convictions, including six for
felony drug offenses, he qualified as a career offender
subject to a mandatory minimum term of 15 years imprisonment
pursuant to 18 U.S.C. § 924(e)(1), with an advisory
guideline range of 235 to 293 months imprisonment. The trial
court overruled Culbertson's objections to the career
offender designation and imposed a 240-month sentence.
Culbertson challenged only his conviction on direct appeal.
The Sixth Circuit affirmed the conviction in 2010.
initial motion for relief filed pursuant to 28 U.S.C. §
2255, Culbertson renewed his challenge to the career offender
enhancement, the trial court denied relief and the Sixth
Circuit declined to issue a certificate of appealability. In
2016, the Sixth Circuit denied another 2255 challenge to his
sentence under Johnson v. United States, ___ U.S.
___, 135 S.Ct. 2551 (2015). The court states that
Culbertson's sentence was enhanced for prior drug
convictions, not prior violent felonies. United States v.
Culberston, No. 2: 07-CR-67-JRG-MCLC-1 (E.D. Tenn.
now petitions for a writ of habeas corpus pursuant to 28
U.S.C. § 2241. The bulk of the petition suggests that
Culbertson seeks relief from his sentence pursuant to
Mathis v. United States, ___ U.S. ___, 136 S.Ct.
2243 (2016) and Hill v. Masters, 836 F.3d 591 (6th
Cir. 2016) because his sentence was improperly enhanced
pursuant to U.S.S.G. § 4B1.1. Culbertson states without
explanation that Virginia Code § 18-248 is an
indivisible statute and is broader than the comparable
guidelines offense. [R. 1]
Court must conduct an initial review of habeas corpus
petitions. 28 U.S.C. § 2243; Alexander v. Northern
Bureau of Prisons, 419 F. App'x 544, 545 (6th Cir.
2011). A petition will be denied “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 Culbertson's petition
under a more lenient standard because he is not represented
by an attorney. Erickson v. Pardus, 551 U.S. 89, 94
(2007). At this stage of the proceedings, the Court accepts
the petitioner's factual allegations as true and
construes all legal claims in his favor. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). The Court
will deny Culbertson's petition because he cannot assert
his Mathis claim in a § 2241 petition, and
because that claim is without merit even if he could.
Mathis, the Supreme Court reiterated that a statute
is considered “divisible, ” therefore permitting
use of the modified categorical approach to determine whether
a prior offense may be used to enhance a sentence under the
career offender provision, only when it contains alternative
elements (hence defining multiple offenses), not when it
merely contains alternative factual means of committing a
single offense. Mathis, 136 S.Ct. at 2249, 2251-52.
But for a claim based upon a recently-issued Supreme Court
decision interpreting a statute to be cognizable in a §
2241 petition, the holding must be retroactively applicable
to cases on collateral review. Wooten v. Cauley, 677
F.3d 303, 307-08 (6th Cir. 2012). The Supreme Court in
Mathis itself made abundantly clear that its holding
was required by decades-old precedent and hence did not
announce any new rule, Mathis, 136 S.Ct. at 2257,
and the Sixth Circuit has expressly so held. In re:
Conzelmann, 872 F.3d 375, 376-77 (6th Cir. 2017).
Therefore Culbertson's Mathis claim is not
cognizable in a § 2241 petition.
Hill, the Sixth Circuit held that contrary to the
general rule, a § 2241 petition may be used to challenge
the enhancement of a sentence only in rare cases where (1)
the petitioner's sentence was imposed when the Sentencing
Guidelines were mandatory before the Supreme Court's
decision in United States v. Booker, 543 U.S. 220
(2005); (2) the petitioner was foreclosed from asserting the
claim in a successive petition under § 2255; and (3)
after the petitioner's sentence became final, the Supreme
Court issued a retroactively applicable decision establishing
that - as a matter of statutory interpretation - a prior
conviction used to enhance his federal sentence no longer
qualified as a valid predicate offense. Hill, 836
F.3d at 599-600. Culbertson cannot invoke Mathis in
a § 2241 petition because he was sentenced in 2008,
seven years after Booker rendered the Sentencing
Guidelines advisory rather than mandatory. Nor was
Culbertson's sentence imposed pursuant to §
924(e)(1)'s 15-year mandatory minimum; instead, the
240-month sentence actually imposed was based upon his
offense level and criminal history category. And as noted
above, Mathis is not retroactively applicable to
cases on collateral review for purposes of § 2241.
Culbertson's claim therefore falls outside the decidedly
narrow exception set forth in Hill, and his
sentencing claim therefore does not fall within the narrow
scope of Section 2255(e)'s savings clause.
Peterman, 249 F.3d at 462.
Culbertson's claim under Mathis is without
merit. As an initial matter, Mathis dealt with the
“violent felony” provision of the ACCA, and
numerous courts have held that Mathis affords no
basis for relief to petitioners like Culbertson whose
sentences were instead subject to enhancement based on prior
convictions for drug offenses. Cf. United States v.
Brunson, No. 3: 12-CR-113, 2017 WL 1250996, at *2 (E.D.
Va. Apr. 3, 2017); United States v. Jeffery, No.
14-CR-20427-01, 2017 WL 764608, at *2 (E.D. Mich. Feb. 28,
does not undermine the trial court's conclusion that
Culbertson's prior drug offenses constituted
“serious drug offenses.” During sentencing
proceedings, the probation office concluded that Culbertson
had six prior convictions for drug trafficking, including
four convictions in 2002 for possession of cocaine with
intent to distribute in Virginia. The pertinent Virginia
statute provides that “it shall be unlawful for any
person to manufacture, sell, give, distribute, or possess
with intent to manufacture, sell, give or distribute a
controlled substance or an imitation controlled
substance.” Va. Code § 18.2-248(A). The conduct
proscribed by Virginia statute is nearly identical to the
language of 18 U.S.C. § 924(e)(2)(A)(ii), which defines
a “serious drug offense” as a state offense
involving the manufacture, distribution, or possession with
intent to manufacture or distribute a controlled substance
that is punishable by a maximum of ten years or more
cocaine is a schedule II substance under Virginia law,
Culbertson faced a sentence of five to forty years
imprisonment under Virginia law. Va. Code § 18.2-248(C).
His convictions thus satisfied § 924(e)(2)(A)(ii)'s
requirement that he faced ten or more years imprisonment. And
consistent with § 924(e), Va. Code § 18.2-248(A)
prohibits the manufacture, distribution, or possession with
intent to manufacture or distribute a controlled substance.
While the Virginia statute includes selling or giving drugs
within its prohibition, those terms connote merely
alternative forms of the “distribution” of a
controlled substance, and hence violation of the Virginia
statute qualifies as a valid predicate for purposes of the
ACCA. Courts in the Fourth Circuit have consistently so held,
both before and after Mathis was decided. United
States v. Boysaw, 198 F. App'x 321, 324 (4th Cir.
2006); Lee v. United States, 89 F.Supp.3d 805,
812-13 (E.D. Va. 2015); United States v. Holloway,
No. 5:09-CR-30, 2017 WL 1483440, at *2-3 (W.D. Va. Apr. 24,
2017); Tarik Khalil Long v. United States, No., 2017
WL 4799798, at *3-4 (E.D. Va. Oct. 23, 2017) (concluding that
conviction under Va. Code § 18.2-248(A) constitutes a
“controlled substance offense” under the
functionally-identical U.S.S.G. § 4B1.2(b)). See also
United States v. Barker, No. 7:13-CR-72, 2016 WL
6441580, at *1-2 (W.D. Va. Oct. 28, 2016), vacated and
remanded on other grounds, 692 F. App'x 724 (4th Cir.
each of these reasons, Culbertson's petition must be
IT IS ORDERED as follows:
Harlan Culbertson's petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 [R. 1] is
action is DISMISSED and