United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION AND ORDER DENYING HABEAS
HORN BOOM, UNITED STATES DISTRICT COURT JUDGE
Lonnie Bernard Davis is a federal inmate currently housed at
the Federal Correctional Institution (“FCI”) -
Butner Medium II located in Butner, North Carolina.
Proceeding without a lawyer, Davis has filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241. [R.
The Respondent has filed a response to the petition [R. 14].
Davis did not originally file a reply to the response and the
time for doing so has now expired. However, after filing its
Response, the Respondent filed a notice directing the
Court's attention to a published decision recently issued
by the United States Court of Appeals for the Fourth Circuit,
United States v. Dinkins, 928 F.3d 349 (4th Cir.
2019). [R. 25; R. 26] In Dinkins, the Fourth Circuit
recognized that the case that Davis primarily relies upon in
his habeas petition, United States v. Gardner, 823
F.3d 793 (4th Cir. 2016), has been abrogated by a subsequent
decision issued by the United States Supreme Court.
Accordingly, the Court provided Davis with additional time
within which to file a reply to address the impact of the
Dinkins decision on his pending habeas petition. [R.
27] Davis filed his reply addressing the impact of
Dinkins on August 1, 2019. [R. 28] Thus, this matter
has been fully briefed and is ripe for review.
2009, Davis pled guilty in the United States District Court
for the Western District of Tennessee to one count of being a
felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g). United States v. Davis, No.
2:08-cr-20316-SHM-1 (W.D. Tenn.) at R. 2, 37. At his August
26, 2009 sentencing hearing, the District Court determined
that Davis qualified as an armed career criminal under the
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e)(1), which provides for an enhanced mandatory
minimum sentence of 180 months imprisonment for a defendant
convicted under § 922(g) who has three previous
convictions for violent felonies or serious drug offenses.
Specifically, the District Court determined that, as set
forth in the Presentence Investigation Report
(“PSR”) prepared by the United States Probation
Office, Davis's criminal history includes the following
four convictions, each of which qualify as an ACCA predicate
offense: 1) a 1991 conviction for North Carolina common law
robbery; 2) a 1992 conviction for North Carolina felony
robbery with a dangerous weapon; 3) a 1992 conviction for
federal bank robbery; and 4) a 1992 conviction for North
Carolina felony common law robbery. [R. 16 at p. 12-17].
See also United States v. Davis, No.
2:08-cr-20316-SHM-1 (W.D. Tenn.) at R. 49, p. 16.
Accordingly, in light of his convictions for four qualifying
ACCA predicate offenses, Davis was sentenced to the statutory
minimum term of imprisonment of 180 months. Id. at
Davis appealed his conviction to the United States Court of
Appeals for the Sixth Circuit, the District Court's
Judgment was affirmed. Id. at R. 55. His subsequent
efforts to obtain relief from his sentence, including a
motion filed pursuant to 28 U.S.C. § 2255, have all been
denied or dismissed. [R. 14 at p. 2-4, discussing the history
of Davis's post-convictions motions seeking relief from
his conviction and sentence]
§ 2241 petition filed in this Court, Davis challenges
the use of his two prior convictions for North Carolina
common law robbery for purposes of the enhancement of his
sentence under the ACCA. Specifically, he argues that North
Carolina common law robbery no longer qualifies as a
“violent felony” for purposes of an ACCA
enhancement pursuant to United States v. Gardner,
823 F.3d 793 (4th Cir. 2016). However, having thoroughly
reviewed the petition, the response filed by Respondent, and
the subsequent briefing regarding Dinkins, the Court
must deny relief.
federal prisoner generally may not use a § 2241 petition
to challenge the enhancement of his sentence. See United
States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001).
Rather, a prisoner who wishes to challenge the legality of
his conviction or sentence must file a motion under §
2255. Id. (explaining the distinction between a
§ 2255 motion and a § 2241 petition). A § 2241
petition may not be used for this purpose because it does not
function as an additional or alternative remedy to the one
available under § 2255. Hernandez v. Lamanna,
16 Fed.Appx. 317, 320 (6th Cir. 2001).
“savings clause” of 28 U.S.C. § 2255(e)
creates an extraordinarily narrow exception to this
prohibition if the remedy afforded by § 2255 is
“inadequate or ineffective” to test the legality
of the prisoner's detention. Truss v. Davis, 115
Fed.Appx. 772, 773-74 (6th Cir. 2004). A motion under §
2255 is not “inadequate or ineffective” simply
because the prisoner's time to file a § 2255 motion
has passed; he did not file a § 2255 motion; or he did
file such a motion and was denied relief. Copeland v.
Hemingway, 36 Fed.Appx. 793, 795 (6th Cir. 2002);
Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002)
(holding that § 2241 is available “only when a
structural problem in § 2255 forecloses even one round
of effective collateral review...”). In other words,
prisoners cannot use a habeas petition under § 2241 as
yet another “bite at the apple.”
Hernandez, 16 Fed.Appx. at 360.
decidedly narrow scope of relief under § 2241 applies
with particular force to challenges not to convictions, but
to the sentence imposed. Peterman, 249 F.3d at 462;
Hayes v. Holland, 473 Fed.Appx. 501, 502 (6th Cir.
2012) (“The savings clause of section 2255(e) does not
apply to sentencing claims.”). In Hill v.
Masters, 836 F.3d 591 (6th Cir. 2016), the Sixth Circuit
articulated a very narrow exception to this general rule,
permitting a challenge to a sentence to be asserted in a
§ 2241 petition, but only where (1) the petitioner's
sentence was imposed when the Sentencing Guidelines were
mandatory before the Supreme Court's decision in
United States v. Booker, 543 U.S. 220 (2005); (2)
the petitioner was foreclosed from asserting the claim in a
successive petition under § 2255; and (3) after the
petitioner's 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 599-600.
was sentenced in 2009, long after Booker was
decided. See Contreras v. Ormond, No. 18-5020 at p.
2-3 (6th Cir. Sept. 10, 2018) (petitioner did not fall within
the narrow exception recognized by Hill because he
was sentenced post-Booker in 2009). It is true that
Davis was sentenced to a statutory mandatory minimum sentence
under the ACCA, rather than under Sentencing Guidelines
rendered advisory by Booker. Even so, his petition
most clearly fails to satisfy the third requirement of
Hill, as Davis fails to point to a retroactively
applicable decision issued by the United States Supreme Court
establishing that his prior common law robbery convictions no
longer qualify as valid predicate offenses for purposes of
petition, Davis argues that, in light of the Fourth
Circuit's holding in Gardner, North Carolina
common law robbery no longer qualifies as a “violent
felony” for purposes of an ACCA enhancement. In
Gardner, the Fourth Circuit analyzed North Carolina
common law robbery using the “categorical
approach” and concluded that “the minimum conduct
necessary to sustain a conviction for North Carolina common
law robbery does not necessarily include the use, attempted
use, or threatened use of ‘force capable of causing
physical pain or injury to another person,' as required
by the force clause of the ACCA.” Gardner, 823
F.3d at 804. Thus, the Court held that “North Carolina
common law robbery does not qualify categorically as a
‘violent felony' under the ACCA.”
in Dinkins, the Fourth Circuit noted that the United
States Supreme Court had “recently revisited the
definition of ‘physical force' under the ACCA's
force clause to determine whether the offense of robbery
under Florida law… constituted a predicate offense
under that clause.” Dinkins, 928 F.3d at 354
(citing Stokeling v. United States, --- U.S. ----,
139 S.Ct. 544, 202 L.Ed.2d 512 (2019)). Applying the holding
of Stokeling to North Carolina common law robbery,
the Fourth Circuit in Dinkins held that
“because North Carolina's case law establishes that
the state's common law robbery offense requires the use
of force sufficient to overcome the victim's resistance,
that offense is encompassed by the holding of
Stokeling and qualifies as a violent felony under the
ACCA's force clause.” Id. at 357. The
Court further stated that “[t]o the extent that this
outcome conflicts with our prior decision in United
States v. Gardner, 823 F.3d 793, that decision has been
abrogated by Stokeling.” Id. at
to the extent that Davis argues that his prior convictions
for North Carolina common law robbery no longer qualify as
“violent felonies” for purposes of the ACCA
enhancement, that argument is now foreclosed by
Dinkins. Davis's argument that the Court should
ignore Dinkins simply because it was issued ...