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Hall v. Kizziah

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

December 6, 2019

TIMOTHY W. HALL, Petitioner,
v.
GREGORY KIZZIAH, Warden, Respondent.

          OPINION & ORDER

          Robert E. Wier United States District Judge.

         Timothy W. Hall, an inmate at USP McCreary in Pine Knot, Kentucky, filed a pro se petition under 28 U.S.C. § 2241. DE #1. Warden Kizziah responded, see DE #14, and Hall replied, see DE #19. This matter is thus ripe for decision.[1] Because Hall has not shown that his remedy under 28 U.S.C. § 2255 is legally inadequate or ineffective, he may not seek relief via § 2241, and the Court dismisses his petition.

         I.

         In 2014, a Southern District of Florida jury convicted Hall of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). See United States v. Timothy Wesley Hall, No. 9:14-cr-80060-DPG, at E.C.F. No. 77 (S.D. Fla. 2014). At sentencing, the district court determined that Hall was subject to sentence enhancement under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e); it found that several of Hall's prior convictions qualified as ACCA predicates, including 1987 and 1988 convictions for possession with intent to sell cocaine in West Palm Beach, Florida (in violation of Fla. Stat. § 893.13) and a 2009 conviction for aggravated battery with a firearm in Riviera Beach, Florida (in violation of Fla. Stat. § 784.021). See id., at E.C.F. No. 124, pp. 29-30; see also DE #16-1 (Final Presentence Investigation Report (PIR)) at ¶¶ 16, 24-25, 49; DE ##14-6, 14-7, 14-8 (Florida Judgments).[2] The court ultimately sentenced Hall to 262 months' incarceration. See No. 9:14-cr-80060-DPG, at E.C.F. No. 101.

         The Eleventh Circuit summarily affirmed Hall's conviction and sentence on direct appeal. See United States v. Hall, 618 Fed.Appx. 657 (11th Cir. 2015). Hall then filed a motion to vacate his sentence under § 2255, arguing, based on Johnson v. United States, 135 S.Ct. 2551 (2015), that invalidation of the ACCA's residual clause rendered his enhanced sentence unconstitutional. See Hall, No. 9:14-cr-80060-DPG, at E.C.F. No. 148. The district court denied the sought relief, concluding that “none of [Hall's] three ACCA predicate convictions fall under the now-unconstitutional residual clause.” See id., at E.C.F. No. 149, p. 4.[3] Though Hall appealed the denial of his § 2255 motion, the Eleventh Circuit dismissed the appeal on March 6, 2018 for failure to prosecute. See id., at E.C.F. No. 159.

         Hall now pursues relief via § 2241, attempting to fit within the narrow § 2255(e) “savings clause.”[4] DE #1. He challenges the three here-identified ACCA predicate offenses, arguing that his cocaine possession convictions violated the Fifth Amendment's double jeopardy prohibition and that he does not actually have a valid aggravated assault conviction. Petitioner further contends, relying in part on the Supreme Court's clarification of the categorical and modified categorical approaches to ACCA predicate analyses in Mathis v. United States, 136 S.Ct. 2243 (2016), that the three convictions are not ACCA-qualifying offenses. Hall's failure to demonstrate inability to raise these arguments earlier, however, is fatal to his petition and warrants dismissal.

         II.

         Federal prisoners generally may not use § 2241 to collaterally attack their sentences, as Hall here seeks to do. See United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001). Section 2255 is the proper vehicle for collaterally asserting perceived detention illegality; § 2241, rather, is reserved “for claims challenging the execution or manner in which the sentence is served[, ]” such as those involving sentence credit computation issues. Id. A § 2241 petition 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 narrow exception to this rule is the “savings clause” of § 2255(e). The savings clause permits a petitioner to assert a sentencing error claim via § 2241 only if it “appears that the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of [the prisoner's] detention.” § 2255(e); see Truss v. Davis, 115 Fed.Appx. 772, 773-74 (6th Cir. 2004). Critically, a § 2255 motion 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 a previous § 2255 motion failed. See 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, § 2241 does not provide prisoners another “bite at the apple.” Hernandez, 16 Fed.Appx. at 360. “It is the petitioner's burden to establish that his remedy under Section 2255 is inadequate or ineffective.” Martin v. Perez, 319 F.3d 799, 803 (6th Cir. 2003) (citation and footnote omitted).

         That Hall's § 2255 and subsequent appeal efforts were unsuccessful as a practical matter, due to procedural failures, does not mean that the § 2255 remedy itself was or is legally inadequate or ineffective. See DE #1 at 4 (arguing that, given his § 2255 motion's dismissal on procedural grounds, he “did an ineffective job” pursuing relief under that section and thus falls within the savings clause); Copeland, 36 Fed.Appx. at 795 (“A prisoner's remedy under § 2255 is not inadequate or ineffective merely because the prisoner is time-barred or otherwise procedurally barred from seeking relief under § 2255[.]”). Rather, to demonstrate that the § 2255 remedy is inadequate or ineffective within the meaning of § 2255(e), a petitioner must satisfy certain specific conditions.

         In this Circuit, “[w]hen seeking to petition under § 2241 based on a misapplied sentence, the petitioner must show[, ]” among other things, “a case of statutory interpretation . . . that is retroactive and could not have been invoked in the initial § 2255 motion[.]” Hill v. Masters, 836 F.3d 591, 595 (6th Cir. 2016); accord Id. at 600 (requiring “a subsequent, retroactive change in statutory interpretation by the Supreme Court”); see also Wright v. Spaulding, 939 F.3d 695, 703 (6th Cir. 2019) (clarifying that “in this circuit, a federal prisoner who has already filed a § 2255 motion and cannot file another one cannot access § 2241 just because a new Supreme Court case hints his conviction or sentence may be defective . . . [T]he prisoner must also show that binding adverse precedent (or some greater obstacle) left him with no reasonable opportunity to make his argument earlier, either when he” appealed his conviction or initially sought § 2255 relief) (emphases, quotation marks, and citations omitted).

         None of Hall's sentencing challenges meets the Hill/Wright criteria for savings clause qualification. First, neither the assertion that his predicate drug felony convictions violated the double jeopardy bar, nor the cursory contention that he, in fact, had no valid prior aggravated assault conviction, is based on any intervening Supreme Court case of statutory interpretation. Nor does he argue that binding adverse precedent-or any greater obstacle-prevented him from earlier making these arguments, whether when he was convicted of the predicate offenses, at the time of his federal sentencing or relevant direct appeal, or in his initial § 2255 motion.[5] Hall thus “had several opportunities” to argue these claims, “free of any procedural impediments or hostile precedents.” Wright, 939 F.3d at 706. That he did not do so, or that he did so unsuccessfully, does bring him within savings clause ambit.[6]

         Hall's claim that the district court erred in failing to analyze his ACCA predicates under the modified categorical approach similarly fails. Without explicitly arguing that § 893.13 or § 784.021 is divisible, Hall maintains that the modified categorical approach required the district court to substantiate the ACCA predicate convictions under these sections with Shepard[7]documents. See DE #1-2 (arguing that the § 893.13 convictions “were never proven with legal document only my [PIR]”); DE #1 at 7 (referring to the § 893.13 convictions and asserting that “[t]he government [failed] to do the modified categorical approach by consulting the trial records-charging document, plea agreement, transcripts of plea”); id. at 7-8 (discussing the § 784.021 conviction and stating that “[o]nce again the government only use[d] my [PIR] . . . not the Shepard approve[d] document” and that “[t]he government did not do the modified categorical approach”). To the extent Hall bases this claim on Shepard itself-a 2005 case-he had ample opportunity to raise it at the time of the 2014 § 922(g) sentencing, subsequent direct appeal, and 2015 initial § 2255 motion. See, e.g., No. 9:14-cr-80060-DPG, at E.C.F. No. 101 (December 2014 Final Judgment). As discussed, “[t]hat he failed to seize [such opportunity] does not mean that § 2255 was ‘inadequate or ineffective' to test his sentence.” Wright, 939 F.3d at 706.[8]

         Further, to the extent that Hall bases this claim on Mathis's 2016 (post-sentencing, appeal, and initial § 2255) clarification of the categorical and modified categorical approaches, [9] he did not need the case to raise the claim. An inability to specifically cite Mathis at the time of Hall's sentencing, appeal, or § 2255 effort is insufficient to demonstrate that Hall had no reasonable prior opportunity to argue for application of the modified categorical approach. See Wright, 939 F.3d at 705 (“To be sure, Wright could not cite Mathis, specifically, before it existed. But a claim for habeas relief is more than the talismanic force of a new case name.”). The case merely clarified- but did not create-the categorical or modified categorical approaches. “A new case ...


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