United States District Court, E.D. Kentucky, Southern Division, London
DAVID F. ANDERSON, Petitioner,
J. RAY ORMOND, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
HORN BOOM, UNITED STATES DISTRICT COURT JUDGE.
David F. Anderson has filed a pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241 to
challenge the enhancement of his federal sentence based upon
prior state felony convictions. [R. 1] The Court must screen
the petition pursuant to 28 U.S.C. § 2243. Alexander
v. Northern Bureau of Prisons, 419 Fed.Appx. 544, 545
(6th Cir. 2011).
October 2008, Anderson pled guilty in Miami, Florida to
federal charges of possession with intent to distribute 50
grams or more of cocaine base. In his sentencing memorandum,
his attorney asserted that Anderson's role in the offense
was minor, but conceded that he was a career offender under
§ 4B1.1(a) of the Sentencing Guidelines based upon prior
felony convictions imposed by the State of Florida in 2002
and 2003. Specifically, Anderson had been convicted of
battery upon a police officer and resisting or obstructing
with violence in one case, and of aggravated assault, two
counts of battery upon a police officer, and resisting or
obstructing with violence in another. Although the Sentencing
Guidelines established a sentencing range of 262 to 327
months imprisonment, the trial court departed below the
guidelines range and in December 2008 imposed a sentence of
210 months imprisonment, a term below the 20-year statutory
maximum applicable to his offense under 21 U.S.C. §
841(b)(1)(C). United States v. Anderson, No. 1:
08-CR-20601-JIC-4 (S.D. Fla. 2008) [R. 105, R. 125, R. 133,
R. 144 therein] Anderson challenged the reasonableness of his
sentence on direct appeal, but in June 2009 the United States
Court of Appeals for the Eleventh Circuit found no error and
affirmed. United States v. Anderson, 334 Fed.Appx.
275 (11th Cir. 2009).
Anderson sets forth a wide variety of arguments in his
petition, none of them provide a basis for habeas relief. He
first contends that his “[s]tate predicates are not
crimes of violence for the purpose of enhancements, ”
an assertion he initially supports only with unexplained
references to various decisions by the United States Supreme
Court and different federal courts of appeal:
“Vague statutes unconstitutional, See
“Johnson/Welch” “Dimaya” under New
Intervening change of Law and “Camp v. US” 6th
Cir. 2018 for Circuit precedent effecting Career Offenders,
Lenity Allowed under Beckles, “Edling 9th Cir.”
“U.S v Wheeler” 4th Cir 2017 allows Circuit
precedent to be held retroactive for collateral
[R. 1 at 5] While this argument challenges the enhancement of
Anderson's sentence on constitutional grounds, in an
attached memorandum he separately challenges the enhancement
on statutory grounds. Anderson argues that his three Florida
convictions for battery upon a law enforcement officer
pursuant to Fl. Stat. § 784.07(2)(B) are not
“crimes of violence” within the meaning of §
4B1.2(a) because the statute does not require a violent or
forceful touching when it is inflicted upon a police officer.
[R. 1-1 at 8-10 (citing Johnson v. United States,
559 U.S. 133 (2010) and United States v. Arroyo, 636
Fed.Appx. 989 (11th Cir. 2016)] Anderson separately argues
that his convictions for aggravated assault are not crimes of
violence because the state statute of conviction, Fl. Stat.
§ 784.07(2)(c), proscribes a broader range of conduct
than the generic definition of assault. [R. 1-1 at 17-18
(citing Descamps v. United States, 570 U.S. 254
(2013) and Mathis v. United States, ___U.S.___, 136
S.Ct. 2243, 195 L.Ed.2d 604 (2016)] As will be discussed
below, Anderson's arguments fail on both procedural and
Anderson's constitutional and statutory claims are not
cognizable in a habeas corpus petition filed pursuant to 28
U.S.C. § 2241. A federal prisoner must generally
challenge the legality of his federal conviction or sentence
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 generally 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). The
“savings clause” of 28 U.S.C. § 2255(e)
creates an extraordinarily narrow exception to this
prohibition if the remedy afforded by § 2255 is
“inadequate or ineffective” to test the legality
of the prisoner's detention. Truss v. Davis, 115
Fed.Appx. 772, 773-74 (6th Cir. 2004). Under this exception,
a prisoner may use a habeas corpus proceeding under §
2241 to challenge the validity of his conviction where, after
the prisoner's conviction became final, the Supreme Court
re-interprets 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. Hayes v.
Holland, 473 Fed.Appx. 501');">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.”); United States v.
Prevatte, 300 F.3d 792, 800-801 (7th Cir. 2002).
Hill v. Masters, 836 F.3d 591 (6th Cir. 2016), the
Sixth Circuit held that challenges to the enhancement of a
federal sentence, as opposed to a conviction, could be
pursued in a § 2241 petition, but only in a certain
class of cases. To qualify, the petitioner must:
(1) point to a Supreme Court decision of statutory
interpretation which establishes that one or more of his
prior convictions were not for offenses that could properly
be used to enhance his federal sentence;
(2) show that the decision could not have been invoked in an
initial § 2255 motion;
(3) demonstrate that the decision is retroactively applicable
to cases on collateral review;
(4) establish that his sentence was miscalculated in a manner
sufficiently grave to be deemed a miscarriage of justice or a
fundamental defect; and
(5) have been sentenced under a mandatory guidelines regime
before the Supreme Court's decision in United States
v. Booker, 543 U.S. 220 (2005) rendered the Sentencing
Guidelines merely advisory.
Hill, 836 F.3d at 595, 599-600. Here, Anderson was
sentenced in 2008, three years after Booker was
decided, at a time when the Sentencing Guidelines were
advisory rather than mandatory. He therefore fails to satisfy
at least one of the requirements set forth in Hill,
rendering his challenge to the ...