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White v. Ormond

United States District Court, E.D. Kentucky, Southern Division, London

December 6, 2017

COREY WHITE PETITIONER
v.
v. J. RAY ORMOND, Warden RESPONDENT

          MEMORANDUM OPINION AND ORDER

          DAVID L. BUNNING UNITED STATE DIASTRICT JUDGE.

         Petitioner Corey White has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. # 1). This matter is before the Court to conduct an initial screening of White's petition. 28 U.S.C. § 2243; Alexander v. N. Bureau of Prisons, 419 F. App'x 544, 545 (6th Cir. 2011). Because White's claim cannot be asserted in a petition under 28 U.S.C. § 2241, the Court will deny the petition.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In June 2005, a federal grand jury returned an indictment charging White with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). In February 2007, White pled guilty without a written agreement. Because White had previously been convicted of three or more violent felonies or serious drug offenses-including burglary, possession with intent to deliver marijuana, attempted capital murder, battery, and murder-he faced a statutory mandatory minimum sentence of 180 months imprisonment pursuant to the Armed Career Criminal Act (“ACCA”) enhancement, 18 U.S.C. § 924(e)(2)(B). White acknowledged this fact during his plea hearing.

         In November 2007, White was sentenced to a term of imprisonment of 180 months, to run consecutively to an undischarged term of imprisonment in the Arkansas Department of Correction. During the sentencing hearing, the trial court explained that, although the guideline range for White's total offense level of 30 and criminal history category of VI would be 168 to 210 months, given the statutory minimum sentence of 180 months under Section 924(e), the guideline range was instead 180 to 210 months. Thus, the sentence imposed was at the bottom of this range. White did not appeal.

         In 2008, White filed a Motion to Vacate his sentence under 28 U.S.C. § 2255 alleging that he had been misled by his counsel regarding his potential sentence. This motion was denied. In 2014, White filed a motion for a “nunc pro tunc amendment order” seeking an order directing that his federal sentence run concurrently to his state sentence. This motion was also denied and the judgment of the trial court was affirmed by the United States Court of Appeals for the Eighth Circuit. United States v. White, No. 4:05-cr-166-JM-1 (E.D. Ark. 2005) (Docs. # 83, 93, 94, and 95 therein).

         In 2016, White filed a second or successive § 2255 motion in the Eastern District of Arkansas, in which he argued that, pursuant to the United States Supreme Court decision in Johnson v. United States, 135 S.Ct. 2551 (2015), his prior offenses no longer qualify as predicate offenses for purposes of the ACCA's sentencing enhancement. Id. (Docs. # 98 and 99). The district court denied White's motion, both because White had failed to obtain certification from the Eight Circuit prior to filing his successive § 2255 petition[1] and also because the ruling in Johnson did not apply to White's case. Specifically, the court explained:

         Under the Armed Career Criminal Act (“ACCA”) a defendant receives an increased sentence if he had three separate, previous convictions for “a violent felony or a serious drug offense, or both . . . .” “Violent felony” was defined, in part, as a felony that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another . . . .
The phrase “or otherwise involves conduct that presents a serious potential risk of physical injury to another” is known as the “residual clause.” In Johnson, the Supreme Court held that the “residual clause” of the ACCA was unconstitutionally vague and violated due process. However, the Court noted that “[t]oday's decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony.” In other words, the subsection defining physical force and the “enumerated offenses” of burglary, arson, extortion, and use of explosives are not affected by the ruling.
Defendant has previous convictions for burglary, possession with intent to deliver marijuana, attempted capital murder, battery, and murder. These convictions do not fall under the “residual clause” found unconstitutional in Johnson. Accordingly, Defendant's sentence is unaffected by the ruling in United States v. Johnson.

United States v. White, No. 4:05-cr-166-JM-1 (E.D. Ark. 2005) (Doc. # 100 at 1-2 therein).

         In September 2016, White again filed a petition seeking permission from the Eighth Circuit to file a second or successive § 2255 petition, this time arguing that, in light of Mathis v. United States, 136 S.Ct. 2243 (2016), his prior burglary conviction no longer qualifies as a predicate offense for purposes of the ACCA enhancement of ...


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