United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION AND ORDER
E. WIER UNITED STATES DISTRICT JUDGE.
Harris is a former inmate at the Federal Correctional
Institution (FCI) in Manchester, Kentucky. 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.
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.
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
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.
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.
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.
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.
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.”
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 ...