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Gibson v. Barnhart

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

November 15, 2019

J.A. BARNHART, Warden, Respondent.


          Gregory F. Van Tatenhove United States District Judge

         Petitioner Joboyd Undre Gibson is a federal inmate currently housed at the Federal Correctional Institution (“FCI”) - Forrest City Medium located in Forrest City, Arkansas.[1] Proceeding without a lawyer, Gibson has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking relief from his sentence. [R. 1]

         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).


         On December 11, 1998 (while he was serving sentences for two prior convictions in Mississippi state court), Gibson was charged in an indictment issued by a federal grand jury in the United States District Court for the Northern District of Mississippi with being a convicted felon who knowingly conspired to make false statements to unlawfully acquire firearms in violation of 18 U.S.C. §§ 922(a), (g) and 924 (a) (Count One); knowingly disposing of a loaded firearm to a convicted felon in violation of 18 U.S.C. § 922(d) (Count Two); being a convicted felon knowingly in possession of a loaded firearm in violation of 18 U.S.C. § 922(g) (Counts Three and Six); knowingly making false written statements to purchase firearms in violation of 18 U.S.C.§§ 922(a) and 924 (Count Four); and knowingly disposing of firearms to a convicted felon in violation of 18 U.S.C. § 922(d) (Counts Five and Seven). United States v. Gibson, No. 1:98-cr-120-NBB-DAS-1 (N. D. Miss. 1998) at R. 1.[2]

         Pursuant to a plea agreement with the United States, on March 18, 1999, Gibson pled guilty to Counts One and Six of the Indictment. Id. at R. 38. On September 16, 1999, Gibson was sentenced to the terms of imprisonment of 60 months on Count One and 120 months on Count Six, to be served consecutively to each other and to Gibson's imprisonment under any previous state or federal sentence. Id. at R. 54. After sentencing, Gibson was returned to the custody of the Mississippi Department of Corrections. Id. at R. 56.[3]

         Gibson has filed multiple motions seeking relief from his sentence, none of which have been granted. Gibson's efforts were first focused on seeking relief from the federal court's imposition of a sentence to be served consecutively to Gibson's state sentence. See United States v. Gibson, No. 1:98-cr-120-NBB-DAS (N.D. Miss. 1998) at R. 57 (motion for reconsideration of judgment filed March 6, 2000); R. 59 (petition for reconsideration of order to run sentence concurrent to state sentence filed May 25, 2001); R. 60 (motion to amend judgment filed June 20, 2001); R. 61 (motion to release federal detainer filed March 28, 2008); R. 62 (motion to modify sentence filed April 24, 2008); R. 63 (motion for order to show cause filed July 18, 2008); R. 64 (motion to reduce sentence filed December 11, 2013); R. 67 (motion for reconsideration filed April 14, 2014); R. 73 (motion requesting clarification and an amended judgment filed November 28, 2016). While these motions were filed by Gibson in the federal sentencing court, he has also previously sought relief from his consecutive federal sentence in this Court, via an unsuccessful petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Gibson v. Barnhart, 6:18-cv-216-GFVT (E.D. Ky. 2018).

         In addition to these miscellaneous motions seeking post-conviction relief from his sentence, on March 21, 2016, Gibson filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255 in his criminal case. United States v. Gibson, No. 1:98-cr-120-NBB-DAS (N.D. Miss. 1998) at R. 69. In his original § 2255 petition, Gibson argued, in part, that, in light of the United States Supreme Court's decision in United States v. Johnson, 135 S.Ct. 2551 (2015), which held that the “residual clause” of 18 U.S.C. § 924(e)(2)(B) is unconstitutional, Gibson's sentencing enhancement under the United States Sentencing Guidelines “Career Offender” residual clause was in error. Id. at p. 4-5.

         On February 9, 2017 (before the District Court had ruled on his § 2255 petition), Gibson filed a “Memorandum in Support” of his § 2255 petition. Id. at R. 74. In his Memorandum, Gibson clarified that his sentence was enhanced under U.S.S.G. § 2K2.1 for a prior “crime of violence, ” but that, post-Johnson, the basis for this enhancement (a prior conviction for “strong arm robbery”) is invalid. On March 3, 2017 (again before the District Court ruled on his § 2255 petition), Gibson filed another § 2255 petition, this time seeking relief from his sentence in light of Mathis v United States, 136 S.Ct. 2243 (2016). Id. at R. 75. In this petition, Gibson argued that, in light of Mathis and the United States Court of Appeals for the Fifth Circuit's decision in United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), Gibson's prior Mississippi drug convictions are no longer valid predicate “controlled substance” offenses for purposes of the Guidelines Career Offender provision, U.S.S.G. § 4B1.1. On May 3, 2017, Gibson filed a “Supplement and Memorandum of Motion to Amend this Brief, ” repeating the same Johnson argument that he had set forth in his original § 2255 petition. Id. at R. 76.

         After the Government filed a response in opposition to Gibson's § 2255 petition, id. at R. 78, the District Court issued a Memorandum Opinion and Order on February 7, 2019, denying Gibson's § 2255 petition on the grounds that it was untimely and, in the alternative, it was without merit. Id. at R. 81. With respect to the merits of Gibson's claims, the Court explained that “Gibson has three convictions which qualify as controlled substance offenses or crimes of violence in the enumerated offenses under U.S.S.G. § 2K2.1(a)(2).” Id. at p. 8. After noting that the Application Notes to U.S.S.G. § 2K2.1(a)(2) explicitly incorporate the definitions of “crime of violence” and “controlled substance offense” provided by U.S.S.G. § 4B1.2, the Court then analyzed Gibson's prior convictions to determine whether they fit these definitions. Id. at p. 8. The Court specifically found that Gibson's robbery conviction is an enumerated crime of violence in U.S.S.G. § 4B1.2(a)(2) and also contains “as an element the use, attempted use, or threatened use of physical force against the person of another, ” as set forth in 18 U.S.C. § 924(e)(2)(B)(i) and U.S.S.G. § 4B1.2(a)(1). Id. at p. 7-8. The Court further found that “Gibson's state drug convictions fit the definition of controlled substance offenses under U.S.S.G. definitions, ” as “[o]ne was for the sale of drugs, for which he received a 1 ½ year sentence. PSR, ¶ 60. The other was for possession of drugs with intent to distribute, for which he received a six-year sentence.” Id. at p. 8. Accordingly, the Court concluded that Gibson's Guidelines Range and sentence were appropriate. Id.

         Gibson has now filed a new petition for writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2241, his third such petition. In his § 2241 petition, Gibson argues that the Career Offender provision of the United States Sentencing Guidelines, U.S.S.G. § 4B1.2, should not have applied to him because Gibson's crime of conviction is neither a “crime of violence” nor a “controlled substance offense.” [R. 1 at p. 6] Gibson invokes the “savings clause” provision of 28 U.S.C. § 2255(e) to contend that he may assert these claims in a § 2241 petition. However, after reviewing the petition and the record in Gibson's underlying criminal case, [4] the Court must deny relief because Gibson's claims are not cognizable in a habeas corpus petition filed pursuant to § 2241 and because they are without merit.


         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 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).

         The “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...”). Rather, to properly invoke the savings clause, the petitioner must be asserting a claim that he is “actually innocent” of the underlying offense by showing that, after the petitioner's conviction became final, the United States Supreme Court issued a retroactively applicable decision re-interpreting the substantive terms of the criminal statute under which he was convicted in a manner that ...

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