United States District Court, E.D. Kentucky, Northern Division
MEMORANDUM OPINION AND ORDER
William O. Bertelsman United States District Judge
Lee Harris is a federal prisoner who filed a pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. [R. 1]. The Respondent has now filed a response
to that petition [R. 60], and Harris has filed a reply [R.
66]. This matter is therefore ripe for a decision. For the
reasons set forth below, the Court will deny Harris's
2000, a jury found Harris guilty of distributing cocaine in
violation of 21 U.S.C. § 841, as well as being a felon
in possession of a firearm in violation of 18 U.S.C. §
922(g). In light of Harris's prior Ohio drug trafficking
convictions, this Court determined that he was a career
offender pursuant to section 4B1.1 of the United States
Sentencing Guidelines (U.S.S.G.). Ultimately, the Court
sentenced Harris to a total of 360 months in prison. See
United States v. Harris, No. 2:97-cr-106-WOB (E.D. Ky.
1997). Harris then filed a direct appeal, but the United
States Court of Appeals for the Sixth Circuit affirmed his
convictions and sentence. See United States v.
Harris, 293 F.3d 970 (6th Cir. 2002).
2003, Harris filed a motion to vacate his sentence pursuant
to 28 U.S.C. § 2255, asserting that he was denied the
effective assistance of counsel and that his sentence was
wrongfully enhanced because this Court made factual findings
not submitted to the jury. This Court denied Harris's
motion, and the Sixth Circuit denied him a certificate of
appealability. Harris v. United States, No. 06-5403
(6th Cir. Apr. 3, 2007) (order).
eventually filed his § 2241 petition in this case.
Harris asserts that, pursuant to Mathis v. United
States, 136 S.Ct. 2243 (2016), his prior drug
convictions no longer constitute predicate offenses under the
career-offender provision of the U.S.S.G. This Court
conducted an initial screening of Harris's petition
pursuant to 28 U.S.C. § 2243 and concluded that the
petition was an impermissible collateral attack on
Harris's sentence. The Court therefore denied
Harris's petition and dismissed the action. [Rs. 24, 25].
appealed, and the Sixth Circuit vacated this Court's
judgment and remanded Harris's case for further
consideration. [R. 46]. In its opinion, the Sixth Circuit
discussed the interplay between § 2255 and § 2241
and acknowledged that, historically, a federal prisoner could
not challenge the legality of his sentence in a § 2241
petition. [See Id. at 3]. However, the Sixth Circuit
then recognized that, in light of its relatively-recent
decision in Hill v. Masters, 836 F.3d 591 (6th Cir.
2016), a prisoner could now challenge his sentence in a
§ 2241 petition under certain limited circumstances. The
Sixth Circuit explained: “When seeking to petition
under § 2241 based on a misapplied sentence, the
petitioner must show that there is ‘(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.'” [R. 46 at 3 (quoting
Hill, 836 F.3d at 595)].
Sixth Circuit then determined that “Harris meets the
requirements of Hill.” [R. 46 at 3]. The court
first pointed out that at least one Sixth Circuit panel
“indicated that Mathis is a retroactive case
of statutory interpretation.” [Id. (citing
Sutton v. Quintana, No. 16-6534, 2017 WL 4677548, at
*2 (6th Cir. July 12, 2017))]. The court then added that
“Mathis was also unavailable when Harris filed
his initial § 2255 motion.” [R. 46 at 3-4].
Finally, the court said, “Harris's sentence
may be erroneous under Mathis.”
[Id. at 4 (emphasis added)]. The court explained:
Harris asserts that his prior convictions were for
transporting and possession of drugs, in violation of Ohio
Revised Code § 2925.03(A)(2) and (A)(4). We have
recognized that section 2925.03 “includes both
qualifying and non-qualifying crimes, ” United
States v. Wright, 43 Fed.Appx. 848, 852 (6th Cir. 2002),
and have agreed with the Ninth Circuit that section
“2925.03(A)(4) falls short of the federal definition of
a controlled substance offense, ” United States v.
Montanez, 442 F.3d 485, 491 (6th Cir. 2006) (quoting
United States v. Foster, No. 93-50402, 1994 WL
201201, at *1 (9th Cir. May 23, 1994)). Accordingly,
Harris' Mathis claim meets all of the
requirements announced in Hill, and he may raise his
Mathis claim in a § 2241 petition.
[Id.]. Accordingly, the Sixth Circuit vacated this
Court's judgment denying Harris's § 2241
petition and remanded his case for further consideration.
the Sixth Circuit issued its mandate [R. 48], the parties
fully briefed the merits of Harris's Mathis
claim [Rs. 60, 62, 66]. Harris also moved for the appointment
of counsel and for release on bail pending the resolution of
his § 2241 petition [R. 53], which the Respondent
opposes [R. 59]. Harris's petition is now ripe for a
initial matter, the Court will deny Harris's motion for
the appointment of counsel. That is because Harris does not
have a constitutional right to counsel in this civil case,
and this matter does not present the kind of exceptional
circumstances that would otherwise justify the appointment of
counsel. See Lanier v. Bryant, 332 F.3d 999, 1006
(6th Cir. 2003). In fact, Harris's submissions to date
indicate that he is able to competently represent himself in
these proceedings. Therefore, the Court will deny
Harris's request for the appointment of counsel.
Court will also deny Harris's petition. That is because
the Respondent, through the U.S. Attorney's Office, has
clearly demonstrated on remand that Harris has three prior
convictions under Ohio Revised Code § 2925.03(A)(2), not
subsection (A)(4). [R. 60 at 2, 3 n. 8, and 7-14]. In fact,
the U.S. Attorney's Office has attached indictments and
corresponding judgments from some of Harris's state
criminal cases, and those documents make it clear that Harris
was convicted in 1989, 1994, and 1997 of violating Ohio
Revised Code § 2925.03(A)(2), not subsection (A)(4).
[Rs. 60-2, 60-4, and 60-5].
important because, as the Sixth Circuit specifically said in
its opinion in this case, Ohio Revised Code § 2925.03
includes both qualifying and non-qualifying crimes. [R. 46 at
4]. While a conviction under § 2925.03(A)(4) may not
qualify as a predicate offense for purposes of an enhancement
under the career offender guidelines, convictions under
§ 2925.03(A)(2) do qualify, as the Sixth
Circuit indicated in this case [R. 46 at 4] and has made
clear in multiple prior cases. See United States v.
Robinson, 333 Fed.Appx. 33, 35 (6th Cir. 2009)
(“Because § 2925.03(A)(2) includes an element of
‘manufacture, import, export, distribution, or
dispensing,' or intent to do those things, that
subsection of the Ohio statute falls within the ambit of
U.S.S.G. § 4B1.2(b).”); United States v.
Wright, 43 Fed.Appx. 848, 853 (6th Cir. 2002)
(concluding that subsection (A)(2) is a controlled substance
offense under the guidelines); United States v.
Black, 4 Fed.Appx. 280, 281 (6th Cir. 2001) (pointing
out that language from an indictment tracking subsection
(A)(2) “clearly brings the offense under the definition
of a ‘controlled substance offense' for purposes of
the career offender guideline”). Simply put, since it
is clear from the record that Harris had multiple prior
convictions under Ohio Revised Code § 2925.03(A)(2), and
those convictions qualify as controlled substance offenses
under the guidelines, Harris's sentence was properly
enhanced.Therefore, Harris's § 2241
petition is unavailing.