United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
L. BUNNING UNITED STATE DIASTRICT JUDGE.
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
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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
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 and also because the ruling in
Johnson did not apply to White's case.
Specifically, the court explained:
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.
United States v. White, No. 4:05-cr-166-JM-1 (E.D.
Ark. 2005) (Doc. # 100 at 1-2 therein).
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