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Davis v. Kizziah

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

May 10, 2019

JONATHAN H. DAVIS, Petitioner,
GREGORY KIZZIAH, Warden, Respondent.

          OPINION & ORDER


         Pro se Petitioner Jonathan Davis-a federal inmate-seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. DE 1. The Court screens this matter under 28 U.S.C. § 2243 and the applicable standards.[1] Davis, for the following reasons, is not entitled to the writ.

         In December 2012, Davis pleaded guilty to possessing crack cocaine with distributive intent in violation of 21 U.S.C. § 841(a)(1) (Count II) and possessing a firearm as a convicted felon (Count I) and in furtherance of a drug trafficking offense (Count III) in violation of 18 U.S.C. §§ 922(g)(1) & 924(c)(1). United States v. Davis, No. 1:11-CR-245-PLM-1 (W.D. Mich. 2011) (Davis I), ECF No. 23. In his plea agreement, Davis acknowledged that he faced an ACCA-enhanced[2] “sentence of at least fifteen years' up to life imprisonment” because he had three (or more) prior convictions for serious drug offenses or violent felonies. Id. at ECF No. 22 at 3. Davis further agreed that he was subject to a sentence of “five years up to life imprisonment” for the § 924(c) offense. Id.[3]

         Notwithstanding the plea agreement, Davis, at sentencing, disputed the ACCA enhancement. Davis conceded that he had two qualifying predicates. Davis I, ECF No. 39 at 13. Davis's juvenile criminal history included two candidates for the third § 924(e) predicate: a 1994 Michigan conviction for possession of cocaine with intent to deliver, M.C.L. § 333.7401(2)(a)(iv), and a 1995 Michigan conviction for second degree home invasion. See Davis I, ECF No. 39 at 15 & 39. At the conclusion of a lengthy sentencing hearing, the trial court found that Davis had “three or possibly four” ACCA predicate convictions. Id. at 59. Ultimately, the trial court sentenced Davis to 324 total months[4] based on the Sentencing Guidelines, which far exceeded the ACCA's mandatory minimum. See Davis v. United States, 533 Fed.Appx. 576, 583 (6th Cir.) (Davis II), cert. denied, 571 U.S. 1114 (2013).

         On direct appeal, the Sixth Circuit did not reach the merits of Davis's challenge to the sentencing enhancement, noting instead that even if the trial court erred in applying the ACCA, such error was harmless because the sentence fell within the applicable Guideline range and, being “well more than the 15-year mandatory minimum established by the ACCA, ” was based upon the Guidelines rather than the statutory mandatory minimum. Id.; see also Brief of Appellee United States of America, 2013 WL 635493, at *44-46 (6th Cir. Feb. 12, 2013) (noting that, with or without the ACCA enhancement, Davis faced a 262-327 month Guideline range based on an uncontested career-offender enhancement).

         A. Statutory Max

         Here, Davis first argues that his 264-month sentence for Counts I and II exceeded the applicable statutory maximum. Per Davis, the statutory maximum was 240 months on Count II because he was not sentenced as an Armed Career Criminal on Count I. See DE 1 at 6; DE 1-1 at 5; DE 5. However, the record conclusively shows that Davis is simply incorrect.

         As discussed, Davis agreed that he was an Armed Career Criminal, and the sentencing court explicitly found that Davis had sufficient predicate offenses. The Sixth Circuit, on direct appeal, specifically noted that the trial court “appl[ied] the ACCA's mandatory minimum.” Davis II, 533 Fed.Appx. at 583. In truth, it seems that Davis simply misunderstands the Sixth Circuit's ruling. The Sixth Circuit did not say that the trial court did not sentence Davis under the ACCA, or that the sentencing court was wrong to apply it. Rather, the Court of Appealsfound that even if the ACCA was inapplicable, the undisputed effect of the career offender enhancement would have given him the same Guideline range and, based on the sentencing court's findings, the same ultimate total sentence. See Davis II, 533 Fed.Appx. at 583; Davis v. United States, No. 1:14-CV-1300 (Davis III), 2017 WL 1159807, at *2 (W.D. Mich. Mar. 29, 2017) (“[T]he Court found that [Davis] was an armed career criminal[.]”).

         Davis had and lost his shot on ACCA application. Count 1 carried a possible life term, so the total Count 1 & 2 264-month sentence did not exceed the Count 1 max, which is Petitioner's current complaint.[5]

         B. Mathis Claim

         Second, Davis challenges his career offender enhancement in light of Mathis v. United States, 136 S.Ct. 2243 (2016), and United States v. Hinkle, 832 F.3d 596 (5th Cir. 2016). Per Davis, his Michigan convictions for possession with intent to deliver cocaine no longer qualify as “controlled substance offenses” because the Michigan statute criminalizes a broader range of conduct than a generic controlled substance offense as defined in U.S.S.G. § 4B1.2(b). DE 1-1 at 5-8. Because the argument challenges the validity of his sentence (rather than the manner of its execution), Davis needed to assert this claim in a § 2255 motion in the court that convicted and sentenced him. Capaldi v. Pontesso, 135 F.3d 1122, 1123-24 (6th Cir. 2003). Under a narrow exception to this rule, a prisoner may challenge the enhancement of his federal sentence in a § 2241 petition if: the petitioner was foreclosed from asserting the claim in a successive petition under § 2255; and after the petitioner's sentence became final, the Supreme Court issued a retroactively applicable decision invalidating-as a matter of statutory interpretation-an enhancement predicate. Hill v. Masters, 836 F.3d 591, 595, 599-600 (6th Cir. 2016). Davis fails to qualify for the Hill exception.[6]

         Mathis issued on June 23, 2016, more than a month before Davis moved to supplement his then-pending § 2255 motion and more than six months before the trial court denied § 2255 relief. See Davis III, No. 1:14-CV-1300, at ECF Nos. 26 & 28. Stated otherwise, Davis had “meaningful time to incorporate” any Mathis argument into his § 2255 filings. See Hill, 836 F.3d at 594-95. Thus, Davis, facing the burden, failed to show that the § 2255 remedy was inadequate as to his Mathis challenge. See Id. at 594. The procedural sequence forecloses savings clause relief.

         Finally, Davis, to the extent he relies on the Fifth Circuit's Hinkle decision, fails to satisfy Hill. Hill mandates reliance on Supreme Court decisions. 836 F.3d at 599-600.[7]In sum, and as to both the Mathis & Hinkle bases, Davis's career offender challenge does not qualify under the § 2255(e) savings clause and, thus, it is not cognizable on § 2241 review.[8]

         Additionally, the Court notes that even if it were to find a Mathis challenge cognizable and that the Michigan manufacturing charge was too broad to qualify as a § 4B 1.2(b) “controlled substance offense, ” that conclusion would not render the career offender enhancement improper. The Guidelines require only “two prior felony convictions of either a crime of violence or a controlled substance offense” for career offender status. See U.S.S.G. § 4B1.1. Davis does not, here, challenge any of the other cited convictions that serve as career offender predicates. D ...

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