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Hawkins v. J.A. Barnhart

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

July 8, 2019

ROBERT A. HAWKINS, PETITIONER
v.
J.A. BARNHART, Warden, RESPONDENT

          MEMORANDUM OPINION AND ORDER

          DAVID L. BUNNING UNITED STATES DISTRICT JUDGE.

         Federal inmate Robert A. Hawkins has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. # 1) as well as a supplemental petition (Doc. # 9). Hawkins contends that the enhancement of his federal sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), was improper because none of his prior offenses constituted valid predicates under the ACCA. See Id. The government raises a procedural and substantive argument in response: first, the government counters that Hawkins's arguments are not properly asserted in a § 2241 petition; second, the government contends that the § 2241 petition is without merit in any event. (Doc. # 13). Hawkins has filed his reply in further support of his petition (Doc. # 15), and this matter is therefore ripe for decision.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In December 2005 a federal jury in Rockford, Illinois found Hawkins guilty of armed robbery affecting interstate commerce in violation of 18 U.S.C. § 1951(a), using and carrying a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A), and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The Presentence Investigation Report (PSR) concluded that Hawkins had three or more prior convictions for “violent felonies”: a 1978 Alabama conviction for robbery, a 1977 Georgia conviction for armed robbery, and a 1977 Georgia conviction for aggravated assault. Hawkins thus qualified as an armed career criminal and faced a mandatory minimum sentence of 180 months' imprisonment for the § 922(g) conviction. 18 U.S.C. § 924(e).

         In March 2006 the trial court adopted the PSR and sentenced Hawkins to two 240-month prison terms for the robbery and felon-in-possession counts. United States v. Hawkins, No. 3:04-CR-50028-1 (N.D. Ill. 2004). The trial court ordered those terms to be served concurrently with one another, followed by a consecutive 84-month prison term on the Section 924(c) count. Id. The resulting 324-month prison term fell at the midpoint of the applicable guidelines range. The Seventh Circuit affirmed on direct appeal. United States v. Hawkins, 499 F.3d 703 (7th Cir. 2007).

         Hawkins filed a motion to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255, asserting 16 distinct claims of ineffective assistance of counsel. The trial court denied that motion in August 2010 and the United States Court of Appeals for the Seventh Circuit denied a certificate of appealability in May 2011. United States v. Hawkins, No. 3: 09-CV-50243 (N.D. Ill. 2009).

         In August 2016 the Seventh Circuit granted Hawkins's motion to file a second or successive § 2255 motion to present his argument that the enhancement of his sentence under the ACCA was improper in light of the Supreme Court's then-recent decision in Johnson v. United States, 135 S.Ct. 2251 (2015). Hawkins, represented by counsel, noted that Johnson rendered the ACCA's residual clause void and further argued that his prior convictions did not qualify as violent felonies under the ACCA's “elements” clause in light of the Supreme Court's decisions in Mathis v. United States, 136 S.Ct. 2243 (2016) and Descamps v. United States, 570 U.S. 254 (2013). The trial court concluded that even under Mathis, Hawkins's prior offenses qualified as violent felonies under the elements clause. The Seventh Circuit declined to issue a certificate of appealability. United States v. Hawkins, No. 3: 16-CV-50227 (N.D. Ill. 2016).

         II. ANALYSIS

         In his present § 2241 petition, Hawkins again contends that none of his prior state offenses constitute “violent felonies” for purposes of the ACCA in light of Mathis and Descamps. (Docs. # 1 and 9). However, the Court must deny the petition because Hawkins's claims are not cognizable in a § 2241 petition and because they are without merit.

         A. Hawkins's claims may not be pursued under § 2241.

         Hawkins does not satisfy the threshold criteria to assert his claims in a habeas corpus petition under § 2241. The near-exclusive means to challenge a federal conviction or sentence is to file a motion in the court of conviction pursuant to 28 U.S.C. § 2255, not to file a § 2241 petition in a remote district. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 2003). In Hill v. Masters, 836 F.3d 591 (6th Cir. 2016), the Sixth Circuit described a very narrow exception to this overarching rule: a prisoner may challenge a federal sentence in a § 2241 petition only if (1) his sentence was imposed under a mandatory Sentencing Guidelines regime before the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005); (2) he was foreclosed from asserting the claim in a successive petition under § 2255; and (3) after his sentence became final, the Supreme Court issued a retroactively-applicable decision establishing that - as a matter of statutory interpretation - a prior conviction used to enhance his or her federal sentence no longer qualified as a valid predicate offense. Hill, 836 F.3d at 595, 599-600.

         The Court does not doubt at this juncture that an ACCA mandatory minimum sentence of 180 months, if imposed under the pre-Booker mandatory guidelines, could “present[] an error sufficiently grave to be deemed a miscarriage of justice or a fundamental defect.” See Hill, 836 F.3d at 595. But Hawkins was sentenced to 240 months' imprisonment under the advisory Sentencing Guidelines, well above § 924(e)'s 180-month mandatory minimum. It is therefore questionable whether Hawkins can even clear Hill's first hurdle. See Arroyo v. Ormond, No. 6: 17-CV-69-GFVT (E.D. Ky. 2017), aff'd, No. 17-5837 (6th Cir. April 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.”); Contreras v. Ormond, No. 6: 17-CV-329-GFVT (E.D. Ky.), aff'd, No. 18-5020 at p. 2-3 (6th Cir. Sept. 10, 2018).

         Hawkins plainly fails to satisfy Hill's second requirement because he has already asserted his claims under Mathis and Descamps in prior § 2255 proceedings. It is well-established that the remedy available under § 2255 is not considered “inadequate and ineffective” as required to invoke the savings clause where the petitioner was permitted to assert his claims under § 2255 but the trial court denied relief. Truss v. Davis, 115 Fed.Appx. 772, 773-74 (6th Cir. 2004). In 2016, Hawkins filed a § 2255 motion asserting that his prior offenses could not qualify as valid predicates under the residual clause in light of Johnson or under the elements clause in light of Mathis and Descamps. United States v. Hawkins, No. 3: 09-CV-50243 (N.D. Ill. 2009). Hawkins cited the same legal authority he presents here, but the trial court rejected his arguments on the merits and concluded that his Georgia and Alabama convictions were for “violent felonies” under the elements clause. Id. Because no “structural problem in § 2255 foreclose[d] even one round of effective collateral review” of Hawkins's claims, he may not attempt to relitigate the same claims simply by asserting them again in a § 2241 petition. Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002); Copeland v. Hemingway, 36 Fed.Appx. 793, 795 (6th Cir. 2002).

         Hawkins also does not satisfy the third requirement of Hill. Although he cites to the Supreme Court's decisions in Mathis and Descamps in support of his claims, his arguments do not actually rest upon them. Both of those decisions explain or clarify application of the “categorical” or “modified categorical” approaches used to determine whether a prior criminal conviction is for a “violent felony” under 18 U.S.C. § 924(e)(2)(B). But Hawkins does not contend that the trial court actually committed an error of a kind revealed by Mathis: he does not allege that it incorrectly determined that his prior offenses were committed under divisible statutes or improperly consulted Shepard materials to decide whether his prior convictions were for violent felonies. (Doc. # 1 at 10; Doc. # 9 at 42, 45). Hawkins has therefore failed to establish that his claims are actually grounded upon Mathis. Accord Potter v. United States, 887 F.3d 785, 787-88 (6th Cir. 2018) (requiring § 2255 petitioner purportedly asserting a claim under Johnson (2015) to establish that trial court actually applied the since-invalidated residual clause when it imposed sentence). Instead, Hawkins argues only that the state statutes under which he was convicted proscribe a broader range of conduct than the generic offense. See (Doc. # 1 at 11-14; Doc. # 9 at 42-45, 46-50). This is an argument under Taylor v. United States, 495 U.S. 575 (1990), not Mathis. It is an argument he could-and therefore must-have made before the trial court at the sentencing hearing, on direct appeal, or in an initial motion under § 2255. It is not one Hawkins may now assert in a habeas corpus petition under § 2241. Hill, 836 F.3d at 599-600.

         B. Hawkins's claims are without merit.

         In any event, Hawkins's arguments are without merit: his three convictions - one each for robbery, armed robbery, and aggravated assault - are for violent felonies. For a prior offense to qualify as a “violent felony, ” the scope of the conduct proscribed by the statute of conviction must “correspond in substance” to the “generic, contemporary meaning” of the offense. Taylor, 495 U.S. at 598-99. To establish the conduct criminalized by the generic version of the offense, a court reviews the criminal codes of the many States, learned treatises, and the Model Penal Code - all as they stood when the ACCA was passed in 1986 - to ascertain a prevailing definition. Id. at 598; United States v. Stitt, 139 S.Ct. 364, 405-06 (2018). To establish the offense conduct for its comparate - the statute of conviction - courts use the “categorical approach” by “looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.” Taylor, 495 U.S. at 600.

         In the years since its adoption of this baseline comparative approach, the Supreme Court has clarified and refined the appropriate analysis to address particular situations. Moncrieffe v. Holder, 569 U.S. 184, 191 (2013). To begin with, while Taylor directs a court to focus on the elements of the offense as written in the statute of conviction, the meaning of the statutory terms defining those elements is governed by decisions of courts within the enacting jurisdiction. Johnson v. Fankell, 520 U.S. 911, 916 (1997); United States v. Rede-Mendez, 680 F.3d 552, 555-56 (6th Cir. 2012) (“we are bound by a state court's interpretation of state criminal law, including the elements of a crime ...”). A federal court is not permitted to conjure up a hypothetical scenario - based only upon the statutory text but untethered to controlling state precedent - to conclude that a state statute might be overbroad. As the Supreme Court explained:

[T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute's language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic probability, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007); Moncrieffe, 569 U.S. at 191; United States v. Southers, 866 F.3d 364, ...


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