United States District Court, E.D. Kentucky
MEMORANDUM OPINION AND ORDER
M. HOOD SENIOR U.S. DISTRICT JUDGE
inmate Jamal Mitchell 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 an initial
screening of the petition pursuant to 28 U.S.C. § 2243.
Alexander v. Northern Bureau of Prisons, 419
Fed.Appx. 544, 545 (6th Cir. 2011).
petition will be denied “if it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief.” Rule 4 of the Rules Governing
§ 2254 Cases in the United States District Courts
(applicable to § 2241 petitions pursuant to Rule 1(b)).
The Court evaluates Mitchell's petition under a more
lenient standard because he is not represented by an
attorney. Erickson v. Pardus, 551 U.S. 89, 94
(2007); Franklin v. Rose, 765 F.2d 82, 84-85 (6th
Cir. 1985) (noting that “allegations of a pro se habeas
petition, though vague and conclusory, are entitled to a
liberal construction” including “active
interpretation” toward encompassing “any
allegation stating federal relief” (citations and
internal quotation marks omitted)).
April 2002, Mitchell was found guilty of conspiracy to
distribute 5 kilograms or more of cocaine within 1, 000 feet
of a public school in violation of 21 U.S.C. § 846, as
well as conspiracy to commit money laundering in violation of
18 U.S.C. § 1957. Prior to trial the government filed a
notice pursuant to 21 U.S.C. § 851(b) indicating that it
would seek to enhance his sentence pursuant to a provision of
the Controlled Substances Act, 21 U.S.C. § 841(b), in
light of his prior 1993 conviction for attempted possession
with intent to distribute cocaine in the District of
Columbia. In July 2002, the trial court imposed a 360-month
sentence on the first count and a concurrent 120-month
sentence on the second. United States v. Mitchell,
No. 1:02-CR-25-JCC-1 (E.D. Va. 2002). The Fourth Circuit
affirmed on direct appeal over Mitchell's challenges to
both his convictions and to the enhancement of his sentence.
United States v. Mitchell, 70 Fed.Appx. 707 (4th
moved to vacate his convictions and sentences pursuant to 28
U.S.C. § 2255, but the trial court denied relief and the
Fourth Circuit denied Mitchell a certificate of appealability
in 2007. United States v. Mitchell, 256 Fed.Appx.
603 (4th Cir. 2007). Mitchell filed several additional post-
judgment motions, all of which were denied save one: in 2015
the trial court reduced his 360-month sentence to 292 months
pursuant to 18 U.S.C. § 3582(c)(2). Mitchell has filed a
prior habeas corpus petition pursuant to 28 U.S.C. §
2241 in this Court to challenge his convictions and
sentences, without success. Mitchell v. Quintana,
No. 5: 13-CV-58-KKC, 2013 WL 5503030 (E.D. Ky. Oct. 1, 2013).
current § 2241 petition, Mitchell argues that the Fourth
Circuit's decision in United States v. Simmons,
649 F.3d 237 (4th Cir. 2011) (en banc) establishes
that his prior state conviction no longer qualifies as a
“felony drug offense” which may be used to
enhance his sentence pursuant to 21 U.S.C. § 841(b)(1).
In Simmons, the Fourth Circuit held that a federal
court must look to the characteristics of the particular
defendant before it in determining whether he or she faced a
possible prison sentence of more than one year for the
commission of a prior “felony drug offense, ” not
the characteristics possessed by a hypothetical defendant.
Id. at 241. This was a straightforward application
of the Supreme Court's then-recent decision in
Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010),
which held that to determine whether a lawful permanent
resident may seek cancellation of removal because he had not
committed an “aggravated felony” under the
Immigration and Nationality Act (“INA”) the court
must look at the offense the alien was actually convicted of
committing, not the offense for which his conduct would have
warranted conviction. Id. at 581-82 (“... the
defendant must also have been actually convicted of a crime
that is itself punishable as a felony under federal law. The
mere possibility that the defendant's conduct, coupled
with facts outside of the record of conviction, could have
authorized a felony conviction under federal law is
insufficient to satisfy the statutory command that a
noncitizen be ‘convicted of a[n] aggravated felony'
before he loses the opportunity to seek cancellation of
asserts that his 1993 District of Columbia conviction was not
for a “felony drug offense” permitting
enhancement of his sentence under the CSA because he could
not have been sentenced to more than one year in prison. This
is so, he appears to argue, because the District's
statutory definition of attempt contemplates only present or
future conduct, not past conduct. Mitchell contends that he
may assert his Simmons claim in a § 2241
petition because that case is one of statutory interpretation
and because the Fourth Circuit in Miller v. United
States, 735 F.3d 141, 147 (4th Cir. 2013) held that
Simmons was retroactively applicable to cases on
collateral review. [R. 1 at 4-7]
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 an initial or 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).
claim appears to satisfy the first two criteria, but does not
satisfy the third. In this regard, Mitchell's reliance
upon Simmons - a case decided by the Fourth Circuit
rather than the Supreme Court of the United States - is
misplaced. The longstanding rule in this and other circuits
is that a habeas petitioner seeking relief under § 2241
must invoke a retroactively applicable decision made by the
Supreme Court: a decision by a federal circuit court of
appeals will not do. Charles v. Chandler, 180 F.3d
753, 755 (6th Cir. 1999) (per curiam); Wooten v.
Cauley, 677 F.3d 303 (6th Cir. 2012). See also
Williams v. Warden, Federal Bureau of Prisons, 713
F.3d 1332, 1342-44 (11th Cir. 2013).
said, Mitchell's petition may be construed to rely
primarily upon Carachuri-Rosendo itself, the Supreme
Court decision upon which Simmons was squarely
based. However, courts considering the question have
routinely held that Carachuri- Rosendo is not
retroactively applicable to cases on collateral review. Cf.
United States v. Bowman, 561 Fed.Appx. 294 (4th Cir.
2014); Lansdowne v. Wilson, 897 F.Supp.2d 404,
406-07 (E.D. Va. 2012); Stewart v. Warden, FCC
Coleman-Low, No. 5: 11-CV-98-OC-29SPC, 2011 WL 6004594,
at *3 (M.D. Fla. Nov. 30, 2011).
Mitchell's claim is not actually predicated upon the
Supreme Court's holding in Carachuri-Rosendo.
The Supreme Court's decision in that case more narrowly
defined the meaning of the term “aggravated
felony” set forth in 8 U.S.C. § 1229b(a)(3) for
purposes of the INA; it did not address, directly or
inferentially, the question presented here based upon the
definition of “felony drug offense” for purposes
of the career offender enhancement set forth in the §
841(b)(1). Fields v. Warden, FCC Coleman-USP1, 612
Fed.Appx. 980, 982 (11th Cir. 2014); Stewart v. Warden,
FCC Coleman-Low, 589 Fed.Appx. 934, 937 (11th Cir. 2014)
(“[Carachuri-Rosendo]'s ultimate holding
that non-recidivist simple drug possession could not be an
“aggravated felony” [under the INA] has no
bearing on whether such an offense could be a “felony
drug offense” under 21 U.S.C. § 841.”).
claim is also without merit. 21 U.S.C. § 841(b)(1)
provides that “[i]f any person commits such a violation
after a prior conviction for a felony drug offense has become
final, such person shall be sentenced to a term of
imprisonment which may not be less than 20 years and not more
than life imprisonment ...” Federal law defines a
“felony drug offense” as any state or federal
offense related to narcotic drugs “that is ...