United States District Court, E.D. Kentucky, Southern Division, London
JUSTIN J. ALLEE, Petitioner,
J. RAY ORMOND, Warden, Respondent.
MEMORANDUM OPINION & ORDER
Gregory F.Van Tatenhove United States District Judge
inmate Justin Allee has filed a pro se petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
[R. 1.] This matter is before the Court to conduct the
initial screening required by 28 U.S.C. § 2243.
Alexander v. Northern Bureau of Prisons, 419 F.
App'x 544, 545 (6th Cir. 2011).
February 2000, two masked gunmen robbed the First National
Bank in Omaha, Nebraska. A witness followed the men as they
fled in a stolen Chevy Blazer, but the pair abandoned it a
few blocks later and sped off in a white Monte Carlo. The
robbers were not apprehended.
later, two masked gunmen robbed the Westgate Bank in Lincoln,
Nebraska using guns similar to those used in the Omaha
robbery. The pair drove off in stolen Jeep Cherokee, but
abandoned it shortly thereafter. Later that day a police
officer attempted to pull over a Mazda Navajo headed towards
Omaha on the interstate, but the vehicle and its passengers
escaped when they drove off the highway and through a field.
The two men in the vehicle - later identified as brothers
Justin Allee and James Allee - then forced their way into a
rural home, shot the elderly couple who lived there, and
carjacked a vehicle. Police captured the men two days later.
In light of the similarities between the two robberies,
police investigated the Allees for both crimes, and they were
ultimately charged with both.
a jury trial in May 2001, Justin Allee was found guilty of
conspiracy to commit bank robbery in violation of 18 U.S.C.
§ 371; bank robbery in violation of 18 U.S.C. §
2113(a), (d); carjacking in violation of 18 U.S.C.
§§ 2119(2); brandishing a firearm during a crime of
violence in violation of 18 U.S.C. §§
924(c)(1)(A)(ii); using and discharging a firearm during a
crime of violence in violation of 18 U.S.C. §§
924(c)(1)(A)(iii), (C)(ii); and being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1). The
trial court sentenced Allee to 235-month sentences for each
of the conspiracy, bank robbery, carjacking, and
felon-in-possession charges, all to run concurrently with one
another. It separately sentenced him to 84 months
imprisonment on the first § 924(c)(1)(A) conviction and
300 months imprisonment on the second, these two sentences to
run concurrently with one another but consecutively to the
first set of sentences, for a total sentence of five hundred
thirty-five (535) months imprisonment. United States v.
Allee, No. 8: 00-CR-83-JFB-1 (D. Neb. 2000).
Court of Appeals for the Eighth Circuit rejected Allee's
challenges to his conviction on direct appeal. However, the
Eighth Circuit agreed with the government that because his
two § 924(c) convictions arose from two separate
incidents, it was improper to run the two sentences
concurrently, and remanded for consecutive resentencing.
United States v. Allee, 299 F.3d 996 (8th Cir.
2002). In November 2002, the trial court entered a revised
judgment in accord with the Eighth Circuit's opinion and
imposed a total sentence of six hundred nineteen (619) months
imprisonment. Allee subsequently sought post-judgment relief
from his convictions and sentences by various means,
including filing several motions under 28 U.S.C. § 2255
and a petition for a writ of audita querela, all
§ 2241 petition before this Court asserts three
substantive grounds for relief. First, he contends that his
federal conspiracy and bank robbery offenses are no longer
“crimes of violence” to support his two §
924(c) convictions in light of the Supreme Court's
decision in Mathis v. United States, __ U.S. __, 136
S.Ct. 2243 (2016). Second, he argues that if the trial court
had the benefit of the Supreme Court's recent decision in
Dean v. United States, __ U.S. __, 137 S.Ct. 1170
(2017), he might have received much shorter sentences for his
convictions other than for the § 924(c) convictions and
suggests that he is entitled to unspecified relief. Third,
Allee asserts that the 235-month sentence imposed for being a
felon in possession of a firearm exceeds the 120-month
maximum sentence allowed by § 924 and is thus
unconstitutional under Apprendi v. New Jersey, 530
U.S. 466 (2000). [R. 1 at 6-8; R. 6 at 3]
Allee invokes Mathis in his first claim, he does so
not to challenge the sentences imposed but instead to
challenge his § 924(c)(1)(A) convictions themselves. To
properly challenge a conviction in a § 2241 petition,
the petitioner must fall within the narrow scope of the
“savings clause” found in 28 U.S.C. §
2255(e) by demonstrating that a motion under § 2255(a)
is “inadequate or ineffective” to test the
legality of the prisoner's detention. Truss v.
Davis, 115 F. App'x 772, 773-74 (6th Cir. 2004). In
sum, 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)). The Supreme Court's
newly-announced interpretation must, of course, be
retroactively applicable to cases on collateral review.
Id. at 308.
claim under Mathis fails to satisfy these
requirements. First, Mathis did not decide - or even
address - the meaning of the phrase “crime of
violence” used to determine if the defendant violated
18 U.S.C. § 924(c)(1)(A) by using or possessing a
firearm during its commission. Instead, the sole issue in
Mathis was the proper analytical approach to be used
by district courts in evaluating prior offenses to determine
if they warrant an increase in the defendant's sentence
under the Armed Career Criminal Act. Mathis, 136
S.Ct. at 2248-50. Because the Supreme Court in
Mathis did not more narrowly construe the meaning of
a “crime of violence” for purposes of §
924(c)(1)(A), Allee's reliance upon it for that
proposition is wholly misplaced. In addition, the gatekeeping
requirements of Wooten are not satisfied because
binding Sixth Circuit precedent establishes that
Mathis is not applicable to cases on collateral
review. In re: Conzelmann, 872 F.3d 375 (6th Cir.
2017); see also Mathis, 136 S.Ct. at 2251, 57
(indicating that its holding is dictated by well-established
precedent dating back to Taylor v. United States,
475 U.S. 600 (1990)).
claim is also substantively without merit. His first §
924(c) conviction was imposed for brandishing a firearm
during the robbery. Allee, 299 F.3d at 1003. That
conviction remains entirely valid because even after
Mathis, the robbery he committed in violation of
Section § 2113(a), (d) constituted a “crime of
violence” for purposes of Section 924(c)(1)(A).
United States v. McBride, 826 F.3d 293, 295-96 (6th
Cir. 2016); Moore v. United States, No. 2:
16-CV-598, 2016 WL 5408882, at *3-4 (S.D. Ohio Sept. 28,
2016); see also United States v. Jordan, 680 F.
App'x 634, 635 (9th Cir. 2017) (“... § 2113(a)
bank robbery categorically qualifies as a ‘crime of
violence' under § 924(c)(3)(A).”). Allee's
second § 924(c) conviction was based upon his
discharging a firearm during the carjacking. Allee,
299 F.3d at 1003. Carjacking in violation of 18 U.S.C.
§§ 2119 also constitutes a “crime of
violence” after the Supreme Court's decision in
Mathis. United States v. Evans, 848 F.3d
242, 246-47 (4th Cir. 2017); United States v. Jones,
854 F.3d 737, 740 (5th Cir. 2017); Guthrie v. United
States, No. 3: 16-CV-347-TBR, 2017 WL 3204505, at *3-6
(W.D. Ky. Feb. 14, 2017).
second claim implies that his sentence is no longer valid in
light of the recent decision in Dean v. United
States, __ U.S. __, 137 S.Ct. 1170 (2017). The Sixth
Circuit only permits resort to a § 2241 petition as a
vehicle for a challenge to the validity of a sentence where
(1) the petitioner's sentence was imposed when the
Sentencing Guidelines were mandatory before the Supreme
Court's decision in United States v. Booker, 543
U.S. 220 (2005); (2) the petitioner was 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
sentence, imposed in 2002, certainly satisfies the first
criteria. But in Dean, the Supreme Court held only
that the mere fact that 18 U.S.C. § 924(c) requires the
imposition of a mandatory minimum sentence for a conviction
under it does not preclude the sentencing court from
considering that sentence when determining the sentence to be
imposed for other convictions. Dean, 137 S.Ct. at
1175-78. There is no evidence here that the trial court
considered itself barred from considering the impact of the
924(c) sentences when settling upon the sentences to be
imposed for the other offenses. But more fundamentally,
Dean does not relate to career offender enhancements
at all, and there is no indication that it falls within the
narrow class of decisions contemplated by Hill as a
basis to challenge a sentence. Hill, 836 F.3d at
599-600. See Bennett v. Terris, No. 2: 17-CV-11251,
2017 WL 4551471, at *2 (E.D. Mich. Oct. 12, 2017); United
States v. Payne, No. 94-CR-150-TCK, 2017 WL 3730612, at
*2 (N.D. Okl. Aug. 29, 2017) (“All authority located by
this Court indicates that Dean does not announce a
new rule of law that was made retroactive to cases on
collateral review.”) (collecting cases); Simmons v.
Terris, No. ...