United States District Court, E.D. Kentucky, Southern Division
KENNETH E. SHELTON, Petitioner,
J.A. BARNHART, Warden, Respondent.
OPINION AND ORDER
E. WIER UNITED STATES DISTRICT JUDGE
Shelton, an inmate at FCI Manchester, filed a pro
se 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.
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).
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),
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).
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.
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.
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.
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
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). That decides the issue and precludes
Shelton's extended advocacy effort to the contrary.
See DE #1-1, at 2-7. 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.
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).
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
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)).
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 ...