United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT
Maurice Pernell McKinney 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
screening required by 28 U.S.C. § 2243. Alexander v.
Northern Bureau of Prisons, 419 Fed.Appx. 544, 545 (6th
2004, McKinney pleaded guilty to possession with intent to
distribute cocaine base in violation of 21 U.S.C. §
841(a)(1); possession of a firearm in furtherance of a
drug-trafficking crime in violation of 18 U.S.C. §§
924(c)(1)(A); and being a felon in possession of a firearm
and ammunition in violation of 18 U.S.C. § 922(g)(1).
to McKinney's sentencing, in Blakely v.
Washington, 542 U.S. 296 (2004), the Supreme Court held
that a state court judgment which imposed a sentence above
the statutory maximum based upon facts found solely by the
judge rather than the jury violated the defendant's
rights under the Sixth Amendment. Based upon
Blakely, and just prior to oral argument in
United States v. Booker, 543 U.S. 200 (2005), the
trial court issued an extensive opinion concluding that the
Sentencing Guidelines were unconstitutional and must
therefore be applied only in an advisory rather than
mandatory fashion. United States v. McKinney, 339
F.Supp.2d 1314 (M.D. Fla. 2004).
the trial court sentenced McKinney to 180 months imprisonment
for the drug trafficking count and the felon-in-possession
count, the two terms to run concurrently with one another,
and to a consecutive 120-month term on the Section 924(c)
count. Although a Section 922(g) conviction ordinarily
carries a 120-month maximum sentence, the trial court
concluded that McKinney had three prior convictions for
violent felonies in Florida, including one robbery conviction
and two third-degree burglary convictions, thus mandating a
minimum 15-year sentence pursuant to 18 U.S.C. § 924(e).
The resulting 300-month aggregate sentence still fell below
the 330-month sentence that the Sentencing Guidelines would
have required if treated as mandatory. United States v.
McKinney, No. 4: 04-CR-3-RH (N.D. Fla. 2004).
Eleventh Circuit affirmed on direct appeal, concluding that
McKinney's below-guidelines sentence was entirely
consistent with Booker. United States v.
McKinney, 135 Fed.Appx. 313, 325-26 (11th Cir. 2005).
See also United States v. Rollins, 135 Fed.Appx.
296, 298 (11th Cir. 2005) (affirming sentence of
filed a motion to vacate his sentence pursuant to 28 U.S.C.
§ 2255, challenging the enhancement of his sentence
under § 924(e)(1) on the theory that his prior Florida
convictions for burglary of a structure did not count as
violent felonies within the meaning of 18 U.S.C. §
924(e)(2)(B). The trial court rejected that claim as without
substantive merit. United States v. McKinney, 2007
WL 2083639, at *5 (N.D. Fla. July 16, 2007) (citing
Taylor v. United States, 495 U.S. 575, 599 (1990)
(“a person has been convicted of burglary for purposes
of [§ 924(e)] if he is convicted of any crime ... having
the basic elements of unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit
petition, McKinney reiterates his contention that his
third-degree burglary convictions were not valid predicates
for an enhancement, this time relying upon the Supreme
Court's decisions in Descamps v. United States,
570 U.S. 254 (2013) and Mathis v. United States,
___U.S. ___, 136 S.Ct. 2243 (2016). [R. 1]
to a § 2241 petition as a vehicle to challenge the
validity of a sentence is only permissible 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 Cir. 2016).
claims likely satisfy the second criteria, but not the first
or the third, and hence they are not cognizable in this
§ 2241 proceeding. First, although McKinney was
sentenced six months before the Supreme Court issued its
decision in Booker, the trial court anticipated its
ruling in that case, held that the Sentencing Guidelines were
unconstitutional, and imposed a guidelines sentence below the
range mandated by the Sentencing Guidelines.
McKinney, 339 F.Supp.2d at 1318. After
Booker was decided by the Supreme Court, the
Eleventh Circuit affirmed McKinney's sentence as properly
imposed by treating the Sentencing Guidelines as merely
advisory. McKinney, 135 Fed.Appx. at 325-26.
McKinney therefore does not meet the threshold criteria for
cognizability set forth in Hill. Hill, 836 F.3d at
599-600 (“[W]e reiterate that our decision addresses
only a narrow subset of § 2241 petitions: (1) prisoners
who were sentenced under the mandatory guidelines regime
the third criteria satisfied. Neither Descamps nor
Mathis involved any statutory interpretation of the
substantive meaning of the phrase “violent
felony” in § 924(e), or decided whether the
Florida statute used to enhance McKinney's sentence
qualified as such. Instead, both decisions were entirely
procedural, discussing the analytical framework established
in Taylor v. United States, 495 U.S. 575 (1990), a
decision issued well before
McKinney's sentence was imposed. In Descamps,
the Supreme Court only clarified that under Taylor,
resort to the modified categorical approach is not
appropriate where the underlying state conviction was
pursuant to an indivisible statute. Descamps, 570
U.S. at 261-62 (citing Taylor, 495 U.S. at 602). For
its part, Mathis merely reiterated that under
Taylor a statute is divisible, hence permitting
resort to the modified categorical approach, only when it
sets forth alternative elements, hence defining multiple
crimes in a single statute, but not when it merely sets forth
alternative factual means to commit a single offense.
Mathis, 136 S.Ct. at 2249, 2251-52 (citing
Taylor, 495 U.S. at 602).
does not allege the trial court impermissibly used the
modified categorical approach to analyze his prior
offenses. He thus hence makes no claim actually
grounded in Mathis or Descamps at all.
Instead, he vaguely suggests a claim actually predicated upon
Taylor: that the Florida statute under which he was
convicted is broader than its “generic”
counterpart. Because Taylor was decided before his
sentence was imposed, McKinney was obligated to, and actually
did, pursue a claim of this kind on direct appeal, rendering
resort to § 2241 impermissible. Capaldi v.
Pontesso, 135 F.3d 1122, 1123 (6th Cir. 2003);
Hernandez v. Lamanna, 16 Fed.Appx. 317, 320 (6th
even if this were not so, McKinney's claims do not fall
within the scope of the narrow exception carved out in
Hill because neither of these decisions is
retroactively applicable to cases on collateral review. The
Supreme Court in Mathis made plain that its
decision, being “all but resolved” by 25-year-old
precedent, was not retroactive. Mathis, 136 S.Ct. at
2257. The Sixth Circuit has expressly so held. In re:
Conzelmann, 872 F.3d 375 (6th Cir. 2017).
Descamps is likewise not retroactively applicable to
cases on collateral review in order to permit resort to
§ 2241. See United States v. Davis, 751 F.3d
769, (6th Cir. 2014) (“The Supreme Court in
Descamps explained that it was not announcing a new
rule, but was simply reaffirming the
Taylor/Shepard approach, which some courts
had misconstrued. Id. at 2283 (“Our caselaw
explaining the categorical approach and its
‘modified' counterpart all but resolves this
case.”)); United States v. Montes, 570
Fed.Appx. 830, 831 (10th Cir. 2014); Rucker v.
Cross, No. 15-CV-206-DRH, 2015 WL 1344435, at *3 (S.D.
Ill. Mar. 23, 2015); Greer v. Wilson, No. 13-3185
SRN/FLN, 2015 WL 179387, at *5 (D. Minn. Jan. 14, 2015)
McKinney's claims are not actually based upon
Descamps and Mathis, and could not be
pursued under § 2241 even ...