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Harris v. Barnhart

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

April 18, 2019

TYRONE HARRIS, Petitioner,
v.
J.A. BARNHART, Warden, Respondent.

          MEMORANDUM OPINION AND ORDER

          ROBERT E. WIER UNITED STATES DISTRICT JUDGE.

         Tyrone Harris is a former inmate at the Federal Correctional Institution (FCI) in Manchester, Kentucky.[1] Proceeding without a lawyer, Harris filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, in which he challenges the sentence from his underlying criminal case. DE #1. The United States responded (DE #15), and Harris replied (DE #18). This matter is therefore ripe for decision. However, before the Court can fully resolve the petition, it requires supplemental briefing on the outstanding issues identified in this Order. The Court will, in the interests of justice, appoint an attorney to assist Harris going forward.

         I.

         In February 2012, Harris pleaded guilty to one count of being a felon in possession of a firearm. See United States v. Tyrone Harris, No. 4:11-cr-038-GAF-1 at DE #128 (W.D. Mo. Feb. 3, 2012). The offense ordinarily carries a maximum imprisonment term of ten years. See 18 U.S.C. § 924(a)(2). However, at Harris's plea hearing, the United States argued that he was subject to a fifteen-year mandatory minimum sentence pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), because he had at least three prior convictions in Missouri for second-degree burglary and all of those convictions qualified as “violent felonies” under the ACCA. See Id. at DE #158 at 7-8.

         After the trial court accepted Harris's guilty plea, the United States Probation Office prepared a presentence investigation report (PIR). DE #14. The Probation Office determined that Harris was indeed an armed career criminal under ACCA in light of his criminal history, including the Missouri second-degree burglary convictions. Id. at 7-25, 35. As a result, the Probation Office concluded that Harris's final Guidelines range was 180 to 210 months. Id. at 35.[2]

         At sentencing, the district court agreed with the Probation Office, stating: “The sentencing guidelines recommend consideration of a range of 168 to 210 months, but the bottom of that . . . is overridden by the statutory range of 15 years or 180 months, and that results in a guideline recommended range of sentence of 180 to 210 months.” United States v. Tyrone Harris, No. 4:11-cr-038-GAF-1 at DE #159 at 8. The district court then considered the various factors set forth under 18 U.S.C. § 3553(a) and sentenced Harris to 210 months in prison. See Id. at DE #159 at 10-11.

         Harris appealed, but the United States Court of Appeals for the Eighth Circuit affirmed the district court's judgment. See Id. at DE #161-1. Harris then filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. See Tyrone Harris v. United States, No. 4:15-cv-124-GAF at DE #1 (W.D. Mo. Feb. 19, 2015). The district court denied that motion, see Id. at DE #11, and the Eighth Circuit denied Harris a certificate of appealability, as well as his application for leave to file a second § 2255 motion. See No. 4:15-cv-124-GAF at DE #18.

         Harris has now filed a § 2241 petition with this Court. Harris argues for the first time that his prior second-degree burglary convictions in Missouri no longer qualify as ACCA violent felonies, given the United States Supreme Court's decision in Mathis v. United States, 136 S.Ct. 2243 (2016), as well as the Eighth Circuit's recent en banc decision in United States v. Naylor, 887 F.3d 397 (8th Cir. 2018). In Mathis, the Supreme Court clarified the correct approach for determining whether prior offenses qualify as violent felonies for purposes of a sentence enhancement under ACCA, and, in Naylor, the Eighth Circuit held that Missouri second-degree burglary does not qualify as an ACCA violent felony. In light of these decisions, Harris claims that he should be resentenced without the ACCA enhancement.

         II.

         Here, Harris may collaterally attack his underlying sentence via § 2241. Generally, a federal prisoner may challenge the legality of his sentence only on direct appeal, in an initial § 2255 motion, and through a warranted second or successive § 2255 motion. See United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001). Harris already pursued a direct appeal and an initial § 2255 motion to no avail, and the Eighth Circuit previously denied him leave to file a second § 2255 motion. Thus, it would appear that Harris could only pursue his latest claim by seeking leave to file a successive § 2255 motion. However, a successive § 2255 motion is proper only if it (1) contains newly discovered evidence that “would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty, ” or (2) is based on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h). Here, there is no dispute that Harris has not made either showing; indeed, he puts forth no new evidence, and his petition is based on a case, Mathis, centering on statutory construction.

         Still, under binding Sixth Circuit law, Harris can proceed with his petition because of the savings clause found in § 2255(e). That provision states:

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

28 U.S.C. § 2255(e) (emphasis added). The Sixth Circuit has determined that “where the remedy under § 2255 is inadequate or ineffective, the savings clause allows a federal prisoner to bring a claim challenging his conviction or imposition of sentence under § 2241.” Hill v. Masters, 836 F.3d 591, 594 (6th Cir. 2016) (quotation marks and citation omitted). The Sixth Circuit also articulated the test that applies, in this context, when a petitioner attempts to come within the savings clause. Id. at 595. When the target of a § 2241 petition is a misapplied sentence, the petitioner must establish: “(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.” Id.

         Harris meets Hill's first two requirements. The Sixth Circuit has repeatedly said in § 2241 cases that Mathis-which clarified the correct analysis for assaying ACCA predicates-is a case of statutory interpretation that is retroactive. See Sutton v. Quintana, No. 16-6534, 2017 WL 4677548, *2 (6th Cir. July 12, 2017); Dowell v. Quintana, No. 17-5297, 2017 U.S. App. LEXIS 23409, *2 (6th Cir. Nov. 17, 2017); Muir v. Quintana, No. 17-6050, 2018 WL 4276133, *2 (6th Cir. Apr. 26, 2018). And, the ...


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