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Shelton v. Barnhart

United States District Court, E.D. Kentucky, Southern Division

February 8, 2019

KENNETH E. SHELTON, Petitioner,
v.
J.A. BARNHART, Warden, Respondent.

          OPINION AND ORDER

          ROBERT E. WIER UNITED STATES DISTRICT JUDGE

         Kenneth Shelton, an inmate at FCI Manchester, filed a pro se[1] petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, broadly contending that he is no longer a career offender in light of Mathis v. United States, 136 S.Ct. 2243 (2016). See DE #1. The matter is ripe for initial screening, per 28 U.S.C. § 2243.

         The Court “has a duty to screen out a habeas corpus petition which should be dismissed for lack of merit on its face.” Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970). The Court dismisses at screening “when the petition is frivolous, or obviously lacking in merit, or where . . . the necessary facts can be determined from the petition itself without need for consideration of a return.” Id.; see also Alexander v. N. Bureau of Prisons, 419 Fed.Appx. 544, 545 (6th Cir. 2011) (describing screening process and standard).

         In July 2013, Shelton and an accomplice robbed First Financial Bank in Farmersburg, Indiana. See DE ##1 (Complaint), 19 (Indictment), No. 2:13-CR-29- WTL-CMM (S.D. Ind.). A federal grand jury charged each with violating 18 U.S.C. § 371 (conspiracy to commit bank robbery), and 18 U.S.C. § 2113(a) (bank robbery). See Id. Shelton pleaded guilty to both charges. See, e.g., DE #79 (Plea Agreement), No. 2:13-CR-29-WTL-CMM. At sentencing, Shelton did “not contest the [USPO's] career offender determination.” DE #92 (Sent. Memo.), at 2, No. 2:13-CR-29-WTL-CMM. Judge Lawrence, in October 2014, imposed a total 160-month sentence. See DE #94 (Judgment), No. 2:13-CR-29-WTL-CMM.

         The Guidelines in effect at the time of Shelton's sentencing provided that a defendant is a career offender, as relevant here, if “(1) [he] was at least eighteen years old at the time [he] committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is . . . a crime of violence . . .; and (3) [he] has at least two prior felony convictions of . . . a crime of violence[.]” U.S.S.G. § 4B1.1(a) (Nov. 1, 2013). Shelton nowhere contests element 1. See also DE #120 (Sent. Tr.), at 5 (Judge Lawrence noting that Shelton was “at least 18 years old at the time of the instance offense”), No. 2:13-CR-29-WTL-CMM. The Guidelines defined “crime of violence” to mean, as relevant, “any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that has as an element the use, attempted use, or threatened use of physical force against the person of another[.]” U.S.S.G. § 4B1.2(a)(1) (Nov. 1, 2013).

         In June 2016, Shelton moved to vacate his sentence pursuant to 28 U.S.C. § 2255, arguing that Johnson v. United States, 135 S.Ct. 2551 (2015), rendered invalid the career offender enhancement. See DE #1, No. 2:16-CV-250-WTL-DKL (S.D. Ind.). The district judge ultimately (post-Beckles) denied the effort, see DE #10, No. 2:16-CV- 250-WTL-DKL, and the Seventh Circuit denied certificate of appealability issuance. See DE #22, at 3, No. 2:16-CV-250-WTL-DKL.

         In the present § 2241 petition (DE #1), Shelton essentially contends that, in light of Mathis, the career offender enhancement is improper-in his words, that “Mathis has rendered application of the career offender enhancement erroneous[.]” DE #1, at 5. He argues that convictions under 18 U.S.C. § 2113(a), his “offense of conviction, ” see DE #1, at 5, and (predicate) Indiana Code § 35-42-5-1 no longer properly constitute crimes of violence. See generally DE #1-1 (Memorandum of Law). As remedy, Shelton seeks sentence vacation and resentencing “under correct guideline range without the erroneous imposition of the career offender enhancement.” DE #1, at 8 (all as in original). For distinct procedural and substantive reasons, the Court denies Shelton relief.

         As an initial matter, Shelton's petition constitutes an impermissible collateral attack under Hill. A prisoner must generally challenge a federal conviction or sentence by filing a § 2255 motion in the court of conviction. See, e.g., Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 2003). Under a narrow exception to this overarching rule, a prisoner in Shelton's general circumstances may challenge an alleged sentencing error in a § 2241 petition only if he “show[s] (1) a case of statutory interpretation, (2) that is retroactive and could not have been invoked in the initial § 2255 motion, and (3) that the misapplied sentence presents an error sufficiently grave to be deemed a miscarriage of justice or a fundamental defect.” Hill v. Masters, 836 F.3d 591, 595 (6th Cir. 2016). Thus, in another formulation, Hill clarified that it “addresse[d] only a narrow subset of § 2241 petitions: (1) prisoners who were sentenced under the mandatory guidelines regime pre-United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), (2) who are foreclosed from filing a successive petition under § 2255, and (3) when a subsequent, retroactive change in statutory interpretation by the Supreme Court reveals that a previous conviction is not a predicate offense for a career-offender enhancement.” 836 F.3d at 599-600.

         The Court does not question, at least at this stage, that Shelton satisfies some Hill prongs. See, e.g., Sutton v. Quintana, No. 16-6534, 2017 WL 4677548, at *2 (6th Cir. July 12, 2017) (holding in the § 2241 context that “Mathis is a case of statutory interpretation” and that “Mathis applies retroactively”).

         Shelton, however, fatally falters on other Hill requisites. He does not show-even assuming he is no longer properly a career offender-that his sentence, imposed under advisory Guidelines, “presents an error sufficiently grave to be deemed a miscarriage of justice or a fundamental defect.” See Hill, 836 F.3d at 595. The Circuit has explicitly held that erroneous application of a career offender enhancement under advisory Guidelines is not itself a “fundamental defect” or a “miscarriage of justice.” Snider v. United States, 908 F.3d 183, 189-92 (6th Cir. 2018).[2] That decides the issue and precludes Shelton's extended advocacy effort to the contrary. See DE #1-1, at 2-7.[3] Hill's requirement of pre-Booker sentencing is, thus, effectively (in a case of this type) just a restatement (in more specific form) of the third prong of the more generally-phrased test. See, e.g., Jones v. Batts, No. 2:18-cv-2464-TLP-tmp, 2019 WL 254244, at *2 (W.D. Tenn. Jan. 17, 2019). Serving a sentence imposed under a mandatory Guidelines range, calculated erroneously- particularly post-Snider-is how a prisoner like Shelton satisfies Hill prong three.

         Judge Lawrence sentenced Shelton in 2014, long after Booker rendered the Guidelines advisory. See DE #93 (Sent. Minutes), No. 2:13-CR-29-WTL-CMM; see also DE #120 (Sent. Tr.), at 4 (the district judge telling Shelton that “these guidelines are simply advisory” and “are not mandatory”), No. 2:13-CR-29-WTL-CMM. Shelton's sentence (13 years, 4 months) falls well under the statutory maximum (25 years). Under Hill, Shelton's post-Booker sentencing independently precludes-regardless of any other issue-the availability of § 2241 relief, in context. See 836 F.3d at 599-600 (limiting application of decision to, inter alia, “prisoners who were sentenced under the mandatory guidelines regime pre-[Booker]”); Burgess v. Merlak, No. 17-4147, 2018 WL 5778364, at *1 (6th Cir. June 22, 2018) (“Hill is inapplicable to this case because Burgess was sentenced in 2012, after the guidelines became advisory.”); Pittman v. Quintana, No. 16-6857, 2017 WL 6759113, at *2 (6th Cir. Sept. 18, 2017) (same principle); DE #18 (Sixth Circuit Order), at 3, Arroyo v. Ormond, No. 6:17-CV-69-GFVT, aff'd, No. 17-5837 (6th Cir. Apr. 6, 2018) (“Arroyo was sentenced in October 2006, after the Supreme Court's decision in Booker[.] On this basis alone, Arroyo's claim does not fall within Hill's limited exception for bringing a § 2241 habeas petition to challenge a federal sentence.”); DE #16 (Sixth Circuit Order), at 2-3, Contreras v. Ormond, No. 6:17-CV-329-GFVT, aff'd, No. 18-5020 (6th Cir. Sept. 10, 2018) (“Contreras's § 2241 petition . . . does not fall within the narrow exception recognized by Hill because he was sentenced post Booker in 2009, under the advisory sentencing guidelines.”); Anderson v. Ormond, F.Supp.3d,, No. 6:18-CV-254-CHB, 2018 WL 6594539, at *3-4 (E.D. Ky. Dec. 14, 2018) (“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[.] Hill itself is clear that only pre-Booker sentences may be challenged in a § 2241 petition, and that conclusion binds this Court.”), appeal filed, No. 19-5010 (6th Cir. 2019).

         Hill specifically addressed only “whether a misapplied sentence enhancement calculated under the mandatory Sentencing Guidelines Manual constitutes a fundamental error that may be redressed in a successive habeas corpus proceeding.” 836 F.3d at 596. Although one subsequent panel-via footnoted dictum in an unpublished order-has questioned whether sentencing under mandatory Guidelines is a prerequisite to qualify for relief under Hill, see Neuman v. United States, No. 17-6100, 2018 WL 4520483, at *2 n.1 (6th Cir. May 21, 2018); see also Thomson v. Terris, No. 16-cv-14453, 2019 WL 108843, at *2 (E.D. Mich. Jan. 4, 2019); Miller v. Batts, No. 16-1213-JDT-egb, 2018 WL 5091906, at *3 n.3 (W.D. Tenn. Oct. 18, 2018), the Court's reading of Hill and related case law inescapably indicates that it is.

         Apart from the primary Snider-centric reasons described above, Hill itself said so. See 836 F.3d at 599-600 (“reiterat[ing]”-implying that the latter formulation is merely a restatement of the former-“that our decision addresses only a narrow subset of § 2241 petitions, ” requiring that the prisoner be “sentenced under the mandatory guidelines regime pre-[Booker]”); id. at 600 (“Hill's challenge to his misapplied career-offender enhancement is properly brought under § 2241 because he was sentenced under the mandatory Guidelines Manual[.]” (emphasis added)).

         Hill, further, strongly suggested-multiple times-such a result. See Id. at 593 (italicizing “mandatory”); id. at 596 (emphasizing that the case only presented a prong 3 question under “mandatory Sentencing Guidelines”); id. (stating that § 2241 may provide relief “when a sentence exceeds the maximum prescribed by statute”); id. at 598 n.5 (specifically flagging and differentiating Seventh Circuit precedent on which Hill relied with separate Seventh Circuit precedent that rejected analogous relief “where the prisoner was sentenced under the advisory Guidelines Manual”); id. at 599 (reminding the reader that “Hill was sentenced pre-Booker” and was “serving a sentence imposed under mandatory guidelines, ” which “shares similarities with serving a sentence imposed above the statutory maximum” and “raise[s] a fundamental fairness issue”). Judge Boom has, likewise, catalogued additional indicia, which the Court finds persuasive and incorporates here by reference. See Anderson, 2018 WL 6594539, at *3-4. Indeed, the Circuit itself has subsequently characterized Hill as addressing only such an issue. See Snider, 908 F.3d at 192 n.5; see also ...


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