United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove, United States District Judge.
Cornell Augustus McKenzie has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. [R. 11.]
This matter is before the Court to conduct an initial
screening of his petition. 28 U.S.C. § 2243;
Alexander v. Northern Bureau of Prisons, 419
Fed.Appx. 544, 545 (6th Cir. 2011).
a grand jury in Alexandria, Virginia, issued an indictment
charging McKenzie with drug and firearms offenses for his
leadership role in operating a drug trafficking ring in
Washington, D.C. Specifically, McKenzie was charged with
conspiracy to possess with intent to distribute 50 or more
grams of crack cocaine in violation of 21 U.S.C. § 846,
conducting a continuing criminal enterprise
(“CCE”) in violation of 21 U.S.C. § 848,
possession of a firearm by a convicted felon in violation of
18 U.S.C. § 922(g), and two counts of possession with
intent to distribute 50 or more grams of crack cocaine in
violation of 21 U.S.C. § 841(a)(1). Prior to trial, the
government filed a notice pursuant to 21 U.S.C. § 851
establishing that McKenzie was subject to enhanced sentences
on the drug trafficking counts because he had several prior
convictions for drug-related offenses.
elected to have the trial judge determine his guilt or
innocence. Following an extensive trial, the judge found
McKenzie guilty on all counts in February 1992. McKenzie
indicates that the trial judge later dismissed his conspiracy
conviction under § 846 as a lesser included offense to
his CCE conviction under § 858. Because McKenzie had
“two or more prior convictions for a felony drug
offense” when he engaged in drug trafficking in
violation of § 841(a), the statute required that he be
“sentenced to a mandatory term of life
imprisonment” for those offenses. 21 U.S.C. §
841(b)(1)(A). The trial court sentenced McKenzie to
concurrent terms of life imprisonment on the two § 841
drug trafficking convictions. United States v.
McKenzie, No. 1: 91-CR-429-AVB-1 (E.D. Va. 1991). The
Fourth Circuit affirmed on direct appeal. United States
v. McKenzie, 983 F.2d 1058, 1993 WL 6832 (4th Cir.
petition, McKenzie argues that the trial court erred when it
imposed life sentences for the drug trafficking convictions
under §841 because it failed to evaluate his prior state
drug convictions using the categorical approach described in
Mathis v. United States, ___ U.S. ___, 136 S.Ct.
2243 (2016). [R. 11 at 5.] Those prior convictions included
three prior Florida convictions for felony drug possession
and one prior Florida conviction for felony drug trafficking.
[R. 11 at 4; 11-1] See also McKenzie, No. 1:
91-CR-429-AVB-1 [Record No. 129-8]
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 Fed.Appx. 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[ly]
innocent” of the underlying offense by showing that
after the petitioner's conviction became final, the
Supreme Court re-interpreted 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 Fed.Appx. 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 308.
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 second and third
requirements. While McKenzie points to the Mathis
decision as a basis for relief, his claim is not actually
based on it. In Mathis, the Supreme Court reminded
courts that for purposes of determining whether to apply the
career offender enhancement found in 18 U.S.C. §
924(e)(1), a statute defining a predicate offense is
divisible (thus permitting review of extrinsic materials
under Shepard) only when it defines multiple
offenses, not when it merely describes alternative factual
means to commit a single offense. Mathis, 136 S.Ct.
contends that Mathis precludes reliance upon his
prior Florida convictions for drug possession and drug
trafficking as a basis to enhance his sentence under §
841(b)(1)(A). But Mathis does not address or relate
to enhancement under that provision. Mathis involved
enhancements under 18 U.S.C. § 924(e), and its holding
is applicable to enhancements under that section and the
functionally-identical guidelines counterpart found in
U.S.S.G. § 4B1.1(a). McKenzie's sentence was not
enhanced under either of these provisions. Instead, his
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”
terms, § 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 Mathis is simply not relevant to
petition thus fails to establish a 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 pressed 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)).
the Court will grant McKenzie's recent motion to amend
his petition to note the Supreme Court's remand order in
Persaud v. United States, 134 S.Ct. 1023 (2014). [R.
12] In Persaud, the Supreme Court agreed to remand
the case for further consideration only because the Solicitor
General flatly conceded the petitioner's argument that a
challenge to a sentence may be pursued under the savings
clause of § 2255(e). Id.
courts throughout the country have consistently rejected the
argument that the proceedings in Persaud have any
bearing on the scope of the savings clause because the
Supreme Court's remand order was not a reversal on the
merits, nor was it a suggestion that the Fourth Circuit was
wrong. Communities for Equity v. Mich. High Sch. Athletic
Ass'n, 459 F.3d 676, 681 (6th Cir. 2006). Rather,
the grant/vacate/remand order used in Persaud is
“a device that allows a lower court that had rendered
its decision without the benefit of an intervening
clarification to have an opportunity to reconsider that
decision and, if warranted, to revise or correct it.”
Gonzalez v. Justices of the Man. Ct. of Boston, 420
F.3d 5, 7 (1st Cir. 2005). While the remand order in
Persaud gave the Fourth Circuit an opportunity to
reconsider its own decision, it does not give district courts
free license to ignore binding circuit precedent. Cf.
Sharbutt v. Vasquez, 600 Fed.Appx. 251 (5th Cir.