United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge
Darius Terrell Whiting 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 F.
App'x 544, 545 (6th Cir. 2011).
November 2006, a grand jury in Cedar Rapids, Iowa issued a
nine-count indictment charging Whiting with numerous drug
trafficking, firearms, fraud, and money laundering offenses.
On the eve of trial, Whiting agreed to plead guilty, without
an agreement, to three of the charges in exchange for the
dismissal of the remainder. In August 2007, the trial court
sentenced Whiting to life imprisonment for conspiracy to
manufacture and possess more than 50 grams of crack cocaine
within 1000 feet of a playground in violation of 21 U.S.C.
§ 846. It further sentenced him to a concurrent
240-month sentence for conspiracy to commit money laundering
in violation of 18 U.S.C. § 1956(a)(1), (h), and to a
consecutive 60-month sentence for possession of a firearm
during the commission of a drug trafficking offense in
violation of 18 U.S.C. § 924(c). United States v.
Whiting, No. 1: 06-CR-145-LRR-1 (N.D. Iowa 2006).
sentencing hearing, Whiting admitted that he had previously
been convicted of two felony drug offenses in Illinois.
Because his federal conviction under 21 U.S.C. § 846
came “after two or more prior convictions for a felony
drug offense have become final, ” federal law required
that he be sentenced to a mandatory minimum of life
imprisonment. 21 U.S.C. § 841(b)(1)(A). On direct
appeal, Whiting argued that this sentence violated the Eighth
Amendment's prohibition against “Cruel and Unusual
Punishments, ” a claim the Eighth Circuit rejected.
United States v. Whiting, No. 07-2935 (8th Cir.
petition, Whiting expresses his belief that his drug
conspiracy sentence was enhanced pursuant to the career
offender provision under the sentencing guidelines, U.S.S.G.
§4B1.1(a), and that following the Supreme Court's
decision in Mathis v. United States, __ U.S. __, 136
S.Ct. 2243 (2016) his prior drug convictions no longer
qualify as valid predicates to enhance his sentence. [R. 1 at
3-4; R. 5 at 1-2.] Because Whiting's claim under
Mathis may not be pursued in a § 2241 petition
and because that decision does not apply to the enhancement
of his sentence, his petition must be denied.
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
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 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 first and third
requirements. Whiting was sentenced in August 2007, two and a
half years after Booker rendered the sentencing
guidelines advisory rather than mandatory. And the Supreme
Court's decision in Mathis is not retroactively
applicable to cases on collateral review. The Supreme Court
itself made this abundantly clear, Mathis, 136 S.Ct.
at 2257, and the Sixth Circuit has expressly so held. In
re: Conzelmann, 872 F.3d 375 (6th Cir. 2017).
Whiting's claim therefore falls outside the scope of the
savings clause, and is not cognizable in a § 2241
Whiting could assert his claim in this proceeding, it is
without merit. While Whiting points to the Mathis
decision as a basis for relief, his claim is not actually
based upon 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.
noted above, Whiting is under the impression that the
sentence imposed under § 846 was enhanced under the
career offender provision found in the sentencing guidelines,
U.S.S.G. § 4B1.1(a). It was not. Instead, his sentence
was increased because he had two or more prior convictions
for “felony drug offenses” pursuant to 21 U.S.C.
§ 841(b)(1)(A). While Mathis does apply to
sentence enhancements under 18 U.S.C. § 924(e) and
U.S.S.G. § 4B1.1(a), it does not address or relate to
sentence enhancements under § 841(b)(1)(A). 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)).
it is hereby O ...