United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
C. REEVES, UNITED STATES DISTRICT JUDGE.
Everton Bartley has filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. [Record No. 1] This
matter is pending for initial screening of Bartley's
petition. 28 U.S.C. § 2243; Alexander v. Northern
Bureau of Prisons, 419 F. App'x 544, 545 (6th Cir.
October 2001 a jury in Charlotte, North Carolina found
Bartley guilty of conspiracy to possess with intent to
distribute cocaine and crack cocaine in violation of 21
U.S.C. 846 and unlawful importation of both drugs in
violation of 21 U.S.C. § 960(a). Prior to trial, the
government had filed notices pursuant to 21 U.S.C. § 851
establishing that Bartley had nine prior felony drug
convictions. Because Bartley's federal conviction under
21 U.S.C. § 846 came “after two or more prior
convictions for a felony drug offense have become final,
” his mandatory minimum sentence increased from ten
years to life imprisonment. 21 U.S.C. § 841(b)(1)(A).
The trial court imposed that sentence in October 2002.
United States v. Bartley, No. 00-CR-210-4 (W.D. N.C.
United States Court of Appeals for the Fourth Circuit
affirmed on direct appeal. United States v. Bartley,
62 F. App'x 547 (4th Cir. 2003). Bartley challenged the
enhancement of his sentence on numerous grounds in his
initial motion for relief under 28 U.S.C. § 2255.
However, the trial court denied relief and the Fourth Circuit
declined to issue a certificate of appealability on any of
the grounds asserted. United States v. Bartley, 272
F. App'x 239 (4th Cir. 2008).
contends in his present petition that his prior drug
convictions were not a proper basis to enhance his sentence
in light of Descamps v. United States, __ U.S. __,
133 S.Ct. 2276 (2013) and Mathis v. United States,
__ U.S. __, 136 S.Ct. 2243 (2016). [Record No. 1-1] A federal
prisoner challenging the legality of his federal conviction
or sentence must generally do so by filing a motion for
post-conviction relief under 28 U.S.C. § 2255 in the
court that convicted and sentenced him. Capaldi v.
Pontesso, 135 F.3d 1122, 1123 (6th Cir. 2003). A habeas
corpus petition pursuant to 28 U.S.C. § 2241 may not be
used for this purpose because it does not function as an
additional or alternative remedy to the one available under
§ 2255. Hernandez v. Lamanna, 16 F. App'x
317, 320 (6th Cir. 2001).
savings clause of § 2255(e) provides a narrow exception
this rule. To properly invoke it, the petitioner must be
asserting a claim that he is “actual innocent” of
the underlying offense by showing that after the
petitioner's conviction became final, the Supreme Court
reinterpreted the substantive terms of the criminal statute
under which he was convicted in a manner that establishes
that his conduct did not violate the statute. Wooten v.
Cauley, 677 F.3d 303, 307-08 (6th Cir. 2012) (citing
United States v. Peterman, 249 F.3d 458, 461-62 (6th
Cir. 2001)); Hayes v. Holland, 473 F. App'x 501,
501-02 (6th Cir. 2012) (“To date, the savings clause
has only been applied to claims of actual innocence based
upon Supreme Court decisions announcing new rules of
statutory construction unavailable for attack under section
2255.”). The Supreme Court's newly-announced
interpretation must, of course, be retroactively applicable
to cases on collateral review. Wooten, 677 F.3d at
strict requirements to meet this test apply with particular
force to challenges to the petitioner's sentence, as
opposed to his conviction. In this circuit, to challenge the
enhancement of a sentence in a § 2241 petition (1) the
petitioner's sentence must have been imposed when the
Sentencing Guidelines were mandatory prior to the Supreme
Court's decision in United States v. Booker, 543
U.S. 220 (2005); (2) the petitioner must have been 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 v. Masters, 836 F.3d 591, 599-600 (6th
claim fails to satisfy at least the third requirement. In
Descamps, the Supreme Court held that when a federal
trial court determines whether to apply the career offender
enhancement found in 18 U.S.C. § 924(e)(1), it may only
consult Shepard materials when the prior conviction
sought to be used as a predicate offense was committed under
a divisible statute, meaning one that defines multiple
offenses. Descamps, 133 S.Ct. at 2283-85.
Mathis merely reminded courts that a statute is not
divisible simply because it describes alternative factual
means to commit a single offense. Mathis, 136 S.Ct.
Descamps and Mathis involved enhancements
under § 924(e), and their holdings are applicable to
enhancements under that section and the
functionally-identical guidelines counterpart found in
U.S.S.G. § 4B1.1(a). But Bartley's sentence was
enhanced under the far simpler provision found in 21 U.S.C.
§ 841(b)(1)(A) because he had previously committed two
“felony drug offenses.” To qualify as a
“felony drug offense, ” no detailed comparison of
elements is required. Rather, 21 U.S.C. § 802(44) merely
requires that the prior state or federal offense (1) be
punishable by more than one year in prison, and (2) that it
“prohibits or restricts conduct relating to
narcotic drugs, marihuana, anabolic steroids, or depressant
or stimulant substances.” (emphasis added).
terms, 21 U.S.C. § 802(44) does not require that the
prior offense constitute any particular species of crime, but
only that it “relat[e] to” conduct involving
drugs. Given the breadth of this definition, the use of the
categorical approach is neither necessary nor appropriate.
See United States v. Graham, 622 F.3d 445, 456-57
(6th Cir. 2010); United States v. Spikes, 158 F.3d
913, 932 (6th Cir. 1998) (“[Section] 802(44) only
requires that the state statute criminalize conduct
‘relating' to drugs. The use of the expansive term
‘relating' as the only substantive limitation on
the reach of the statutory phrase ‘felony drug
offense' clearly indicates that the statute encompasses
drug offenses that involve the simple possession of
drugs”), cert. denied, 525 U.S. 1086 (1999).
The more complex analysis involved in cases governed by
Descamps and Mathis is simply not relevant
to Bartley's circumstances.
these reasons, Bartley's petition fails to establish any
basis for habeas relief Cf, United States v. Smith,
No. 1:12-CR-88-1, 2017 WL 3528954, at *5-6 (W.D. La. July 11,
2017) (rejecting the exact argument presented here and
correctly noting that “[t]he categorical approach in
Moncrieffe and Taylor has never been
applied to the enhanced penalty provisions of §
841(b)(1)(A) and has never been used to interpret the phrase
‘felony drug offense' in 21 U.S.C. §
802(44).”) (citing United States v. Wing, No.
5:13-CR-87-JMH, 2016 WL 3676333, at *2 (E.D. Ky. 2016)).
Accordingly, it is hereby
1. Everton Bartley's petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 [Record ...