United States District Court, E.D. Kentucky, Central Division, Lexington
WILLIAM L. TOLBERT, JR., Petitioner,
FRANCISCO QUINTANA, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge
inmate William L. Tolbert, Jr. has filed a pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. Tolbert contends that, in light of the United
States Supreme Court's decision in Mathis v. United
States, ___ U.S. ___, 136 S.Ct. 2243 (2016), his prior
Kentucky convictions for first degree robbery no longer
qualify as “violent felonies, ” and, therefore,
his federal sentence should not have been enhanced pursuant
to the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1)
(“ACCA”). [Record No. 1] This matter is before
the Court to review the petition pursuant to 28 U.S.C. §
October 2008, Tolbert robbed a Long John Silver's
restaurant at gunpoint. He was arrested shortly thereafter
and charged with several federal crimes, including
interfering with interstate commerce by threat or violence,
possessing or brandishing a firearm during the commission of
a crime of violence, and being a felon in possession of a
firearm. United States v. Tolbert, No. 3:
08-CR-142-JHM-CHL-1 (W.D. Ky. 2008) [Record No. 1 therein].
On the eve of trial, Tolbert agreed to plead guilty to these
offenses. As part of the plea agreement Tolbert admitted that
he had previously been convicted of five separate robbery
offenses in Case Number 92-CR-2125 in the Circuit Court of
Jefferson County, Kentucky. Tolbert also stipulated that he
faced a minimum term of 15 years imprisonment and a maximum
term of life imprisonment for his federal crimes; for its
part, the government agreed to recommend that his three
sentences be ordered to run concurrently with one another.
Finally, Tolbert expressly agreed that he:
... knowingly and voluntarily waives the right (1) to
directly appeal his conviction and the resulting sentence
pursuant to Fed. R. App. P. 4(b) and 18 U.S.C. § 3742,
and (b) to contest or collaterally attack his conviction and
the resulting sentence pursuant to 28 U.S.C.§ 2255or
[Record No. 48 therein at Page ID # 116] The trial court
accepted the plea agreement, and in February 2011 sentenced
Tolbert to two concurrent terms of 180 months imprisonment,
those terms to be served consecutively to the state sentence
that Tolbert was already serving for his five robbery
convictions. [Record No. 56 therein]
November 2016, Tolbert filed a motion pursuant to 28 U.S.C.
§ 2255, asserting that his Kentucky convictions for
first degree robbery no longer qualified as valid predicate
offenses under the ACCA's “use of force”
clause and that the Supreme Court's intervening decision
in Johnson v. United States, ___ U.S. ___, 135 S.Ct.
2251 (2015), rendered the ACCA's “residual”
clause invalid. In response, the government argued that
Tolbert's motion was untimely, both because it was filed
more than one year after Johnson was decided as
required by 28 U.S.C. § 2255(f)(3) and because his
argument regarding the “use of force” clause was
not based upon Johnson at all. United States v.
Tolbert, No. 3: 08-CR-142-JHM-CHL-1 (W.D. Ky. 2008)
[Record Nos. 89, 94 therein]
trial court concluded in October 2018 that Tolbert's
motion was time-barred and substantively without merit:
The Court rejects Tolbert's argument that his three prior
robbery convictions do not qualify as predicates under the
“elements/force clause” of the ACCA. 18 U.S.C.
§ 924(e)(2)(B)(i). As previously addressed by other
courts, Kentucky's first-degree robbery statute
... satisfies the ACCA's physical force requirement to
constitute a violent felony. One of the elements of the
first-degree robbery statute is using or threatening
immediate use of physical force. Even if the level of force
required under the Kentucky statute is less than the level of
force required under the ACCA's elements clause, the
statute also requires one of three aggravating factors:
“(a) caus[ing] physical injury to another ... (b)
[possessing] a deadly weapon, or (c) using or threatening the
use of a dangerous instrument upon any person who is not a
participant in the crime.” KRS 515.020(a)-(c). The
element of physical force combined with any one of these
aggravating factors rises to the level of violent force.
Dean v. United States, 2018 WL 3350403, at *3 (W.D.
Ky. July 9, 2018). See also United States v. Ingram,
276 F.Supp.3d 717 (E.D. Ky. 2017); United States v.
Mounts, 2017 WL 2691418, at *2 (E.D. Ky. June 22, 2017)
(rejecting the argument that facilitation of first-degree
robbery is not a violent felony). Accordingly, the Court
finds that a Kentucky first-degree robbery conviction falls
under the elements clause of the ACCA.
[Record Nos. 106 therein at Page ID # 437-38] As of this
writing, Tolbert's motion for a certificate of
appealability remains pending before the United States Court
of Appeals for the Sixth Circuit. Tolbert v. United
States, No. 18-6199 (6th Cir. 2018).
argues in his present that “Kentucky 1st Degree
robbery, § 515.020, does not fall under the
element/physical force clause, and is not listed in the
enumerated clause.” [Record No. 1 at Page ID # 8] As
grounds to seek relief pursuant to 28 U.S.C. § 2241,
Tolbert purports to rely upon the Supreme Court's
decision in Mathis: “So as dictated by
Descamps [v. United States, 570 U.S. 254
(2013)] and Mathis, the categorical approach must be
applied to Kentucky's 1st degree robbery statute.”
[Record No. 1 at Page ID #10-17] The Court will deny the
petition for the reasons set forth more fully below.
Tolbert knowingly and voluntarily waived his right to appeal
or collaterally attack his conviction or sentence.
Tolbert, No. 3: 08-CR-142-JHM-CHL-1 (W.D. Ky. 2008)
[Record No. 48 therein at Page ID # 116] Such waivers are
enforceable and apply to proceedings under § 2241.
Slusser v. United States, 895 F.3d 437, 439 (6th
Cir.) (“It is well-settled that a knowing and voluntary
waiver of a collateral attack is enforceable.”) (citing
Watson v. United States, 165 F.3d 486, 489 (6th Cir.
1999)), petition for cert. filed, No. 18-6807 (Nov.
26, 2018). In his plea agreement, Tolbert bargained for and
received a substantial reduction in the sentence he faced -
life imprisonment - in exchange for his agreement to plead
guilty and to waive his right to challenge his conviction or
sentence by any means, whether by direct appeal or collateral
attack. He therefore is barred from challenging his
conviction or sentence in this proceeding. Moser v.
Quintana, No. CV 5: 17- 386-DCR, 2017 WL 5194507, at *2
(E.D. Ky. Nov. 9, 2017), aff'd, No. 17-6421 (6th
Cir. June 21, 2018); Rivera v. Warden, FCI, Elkton,
27 Fed.Appx. 511, 515 (6th Cir. 2001).
Tolbert's claims are not cognizable in a § 2241
petition. To challenge the legality of his federal conviction
or sentence a federal prisoner must file a motion 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). Under a narrow exception to this rule a prisoner
may challenge the enhancement of his federal sentence in a
§ 2241 petition, but only if: (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 ...