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Jividen v. Streeval

United States District Court, E.D. Kentucky, Northern Division, Ashland

August 22, 2019

BERNARD R. JIVIDEN, Petitioner,
v.
J.C. STREEVAL, Respondent.

          MEMORANDUM OPINION AND ORDER

          HENRY R. WILHOIT. JR. UNITED STATES DISTRICT JUDGE.

         Petitioner Bernard R. Jividen is a federal inmate currently confined at the Federal Correctional Institution ("FCI")-Ashland, located in Ashland, Kentucky. Proceeding without a lawyer, Jividen has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking relief from his conviction and sentence and has paid the $5.00 filing fee. [D.E. No. 1, 5]

         Petitions filed under § 2241 are subject to initial screening by the Court required by 28 U.S.C. § 2243. Alexander v. Northern Bureau of Prisons, 419 Fed.Appx. 544, 545 (6th Cir. 2011). A petition will be denied "if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule 1(b)). See also Alexander, 419 Fed.Appx. at 545 (applying the pleading standard set forth in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), to habeas corpus petitions).

         I.

         In October 2013, pursuant to a plea agreement with the United States, Jividen pled guilty to one count of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) (Count I). As part of the plea agreement, the United States agreed to dismiss Count II of the indictment, which charged Jividen with possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) (Count II). In the pies. agreement, the parties agreed to jointly recommend sentencing guideline calculations, including that Jividen's base offense level of 22 should be increased by the following: (1) pursuant to U.S.S.G. § 2G2.2(b)(2), an increase by 2 levels because the material involved children under 12 years of age; (2) pursuant to U.S.S.G. § 2G2.2(b)(4), an increase by 4 levels because the material portrayed sadistic conduct or depictions of violence; and (3) pursuant to U.S.S.G. § 2G2.2(b)(7)(D), an increase by 5 levels because the offense involved over 600 images.[1]

         Jividen also expressly waived the right to appeal or collaterally attack his guilty plea, conviction, and sentence (with the exception of a claim of ineffective assistance of counsel), so long as his sentence is not above the recommended guideline range. In addition, notwithstanding the joint recommendation for guideline calculations, Jividen reserved the right to argue for a variance downward from the guideline range and a departure downward from any guideline range not contemplated by the plea agreement. For its part, the United States agreed to recommend the lowest within-guideline term of imprisonment.

         On February 20, 2014, Jividen was sentenced to a term of imprisonment of 133 months on Count I of the indictment, to be followed by a life term of supervised released, with the condition that, after 10 years of completion of supervision, with no violations, Jividen may be terminated early from supervised release. As it has previously agreed, the United States moved to dismiss Count II of the indictment Although Jividen did not appeal his conviction or sentence, he did file a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 in light of the United States Supreme Court's decision in Johnson v. United States, ____U.S. ____, 135 S.Ct. (2551 (2015). Jividen's § 2255 petition was denied by the District Court and, although Jividen appealed to the United States Court of Appeals for the Sixth Circuit, his appeal was dismissed for want of prosecution. United States v. Jividen, No. 2: 13-cr-045-DLB-CJS (E.D. Ky. 2013).

         II.

         In his § 2241 petition filed in this Court, Jividen argues that United States v. Morrissey, 895 F.3d 541 (8th Cir. 2018), narrowed the scope of the conduct criminalized by 18 U.S.C. § 2252, such that § 2252 does not permit a dual conviction for receipt and possession of child pornography arising from the same facts. [D.E, No. 1; D.E. No. 1-1] Jividen further argues that the indictment in his case was defective because it did not allege that the pornographic images depicted a minor under twelve years of age and did not identify which images were possessed and which were distributed. He therefore contends that it was improper to apply 18 U.S.C. § 2252(b)(2), which increases the statutory maximum sentence for a violation of § 2252(a)(4) (possession of child pornography) from 10 to 20 years. Jividen also contends that the failure to submit the question of the age of the minor depicted in the images to a jury was a violation of his Sixth Amendment rights under Alleyne v. United States, 570 U.S. 99 (2013).

         Jividen also relies upon United States v. Raymond, 139 S.Ct. 2369 (2019 I, and argues that the imposition of his term of supervised release pursuant to 18 U.S.C. § 3585(k) is invalid because § 3585(k) is unconstitutional. Finally, Jividen argues that the District Court improperly increased his base offense level under the U.S.S.G. §§ 2G2.2(b)(2), (4), and (7)(D), citing to several court decisions issued long before his sentence was imposed. According to Jividen, the District Courts "misapplication" of the various sentencing enhancements provided by the Guidelines, is "an error sufficiently grave to be deemed a miscarriage of justice of a fundamental defect," such that he may proceed in his § 2241 petition pursuant to Hill v. Masters, 836 F.3d 591, 595 (6th Cir. 2016).

         However, Jividen's petition must be denied for several reasons. First, contrary to his repeated statements in his petition, Jividen was not convicted of both receipt and possession of child pornography, as Count II of the indictment charging him with possession of child pornography was dismissed by the United States. Thus: his argument that he was improperly convicted of both receipt and possession of child pornography based on the same underlying facts is unfounded. Moreover because he was convicted of receipt of child pornography in violation of 18 U.S.C 2252(a)(2), the basis for his statutory maximum penalty of 20 years was the statutory penalty provided by 18 U.S.C. § 2252(b)(1), not the enhanced statutory maximum penalty of 20 years provided by § 2252(b)(2) for a violation of § 2252(a)(4) involving a prepubescent minor or a minor who had not attained 12 years of age.[2]For these reasons, neither Morrissey nor Alleyne have any bearing upon Jividen's case, and his claims based upon them are substantively without merit.

         In addition, Jividen's petition is barred by the collateral attack waiver he agreed to as part of his plea agreement. Such waivers are enforceable and apply to proceedings under § 2241. Slusser v. United States, 895 F.3d 437, 439 (6th Cir.) ("It is well-settled that a knowing and voluntary waiver of a collateral attack is enforceable.") (citing Watson v. United States, 165 F.3d 486, 489 (6th Cir. 1999)). In his plea agreement, Jividen bargained for and received a substantial reduction in the sentence he faced in exchange for his agreement to plead guilty and to waive his right to challenge his conviction or sentence by any means, whether by direct appeal or collateral attack. Jividen is therefore barred from challenging his conviction or sentence in this proceeding. Moser v. Quintana, No. CV 5: 17-386-DCR, 2017 WL 5194507, at *2 (E.D. Ky. Nov. 9, 2017), aff'd, No. 17-6421 (6th Cir. June 21, 2018); Rivera v. Warden, FCI, Elkton, 27 Fed.Appx. 511, 515 (6th Cir. 2001).

         Further, in his § 2241 petition, Jividen challenges the increases to his base offense level made as part of calculating his recommended Sentencing Guideline range. Specifically, he argues that the following upward adjustments to his base offense level were improper: (1) pursuant to U.S.S.G. § 2G2.2(b)(2) because the material involved children under 12 years of age; (2) pursuant to U.S.S.G. § 2G2.2(b)(4) because the material portrayed sadistic conduct or depictions of violence; and (3) pursuant to U.S.S.G. § 2G2.2(b)(7)(D) because the offense involved over 600 images. However, as part of his plea agreement, Jividen specifically agreed to jointly recommend sentencing guideline calculations, including these specific upward adjustments to his base offense level. United States v. Jividen, No. 2: 13-cr-045-DLB-CJS (E.D. Ky. 2013) at D.E. No. 16, Plea Agreement, at ¶ 5. Having received the benefit of the plea agreement, Jividen provides no reason why he should not be held to his bargain with the United States.

         Even putting his plea agreement aside, Jividen is still precluded from relief because he may not assert his claims in a habeas corpus petition filed pursuant to 28 U.S.C. § 2241. A 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 ...


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