Stutson v. United States of America
MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 10/13/2017. (PSM)
2017 Oct-13 PM 03:41
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
UNITED STATES OF AMERICA, )
MEMORANDUM OF OPINION
This is a pro se motion to vacate, set aside, or correct a sentence filed
pursuant to 28 U.S.C. § 2255 by Petitioner Efrem Stutson (“Stutson”) on
November 28, 2016. (Doc. 1.)
Respondent, the United States, opposes this
motion. (Doc. 5.) For the following reasons, the motion is due to be denied.
In June 1994, Stutson was convicted by a jury under 21 U.S.C. § 846 for his
part in a wide-ranging conspiracy to possess and distribute large quantities of drugs
in the Northern District of Alabama and elsewhere. The Government filed an
information, pursuant to 21 U.S.C. § 851, alleging Stutson had previously incurred
three drug convictions—convictions he expressly admitted to at his sentencing.
These included a 1988 conviction for cocaine possession in San Bernardino,
California Superior Court, a 1989 conviction for the sale of a controlled substance
in Pomona Judicial District Superior Court, and a 1992 conviction for possession of
cocaine in the San Bernardino, California Superior Court. At the time Stutson was
sentenced by this Court, all three convictions were for offenses classified as felonies
under California law. After attributing Stutson with 16 kilograms of powder
cocaine, this Court applied the prior drug convictions, in accordance with 21
U.S.C. § 841(b)(1)(A), and sentenced him to a mandatory term of Life
Stutson filed an appeal that was unsuccessful. Since then, he has pursued a
number of post-conviction actions, including two habeas motions filed under §
2255, both of which were denied. See 2:01-cv-8005-LSC-PWG and 2:07-cv-8001LSC-PWG.
In November 2014, California enacted Proposition 47, known as the “Safe
Neighborhoods and Schools Act.” Cal. Penal Code § 1170.18 (codifying
Proposition 47). Among other things, Proposition 47 reduces future convictions for
certain low-level drug offenses (i.e., possession) from felony to misdemeanor.
Proposition 47 also permits previously-convicted defendants to petition the court
for a “recall of sentence,” which, if granted, effectively reclassifies their qualifying
felonies as misdemeanors.
Pursuant to Proposition 47, Stutson petitioned a California state court for a
reclassification of his two prior felony drug convictions for cocaine possession.
Stutson’s petitions were granted in March and September 2016, and, accordingly,
the convictions were reduced to misdemeanors.
Stutson now contends in the instant § 2255 motion that because two of his
prior felony drug convictions are no longer countable under 21 U.S.C. §
841(a)(1)(A), his Life sentence is illegal, and he is due to be re-sentenced without
application of the 21 U.S.C. § 851 enhancements.
This Court Lacks Jurisdiction to Consider the Motion
This is Stutson’s third numerically-filed § 2255 motion. The United States
acknowledges that ordinarily this would mean that this Court would lack
jurisdiction to consider it because it is “second or successive” and Stutson has not
sought or received permission from the Eleventh Circuit Court of Appeals to file it.
See 28 U.S.C. § 2255(h) (“A second or successive motion must be certified as
provided in section 2244 by a panel of the appropriate court of appeals to contain—
(1) newly discovered evidence that, if proven and viewed in light of the evidence as
a whole, would be sufficient to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty of the offense; or (2) a
new rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.”); 28 U.S.C. § 2244(b)(3)(A)
(“Before a second or successive application permitted by this Section is filed in the
District Court, the applicant shall move in the appropriate Court of Appeals for an
Order authorizing the District Court to consider the application.”); United States v.
Holt, 417 F.3d 1172, 1175 (11th Cir. 2005) (“Without authorization, the district
court lacks jurisdiction to consider a second or successive petition.”).
However, relying upon Stewart v. United States, 646 F.3d 856 (11th Cir.
2011), the United States’s position is that Stutson’s failure to seek the requisite
permission is not fatal to his claim because the basis for his claim did not exist
before the reclassification of his two prior California felonies through operation of
Proposition 47 and well after his first and second § 2255 motions had been filed and
In Stewart, the Eleventh Circuit held that there are limited circumstances in
which a numerically-second § 2255 motion may not be “second or successive”
under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 646
F.3d at 857; see also Slack v. McDaniel, 529 U.S. 473, 486 (2000) (explaining that
the phrase “second or successive,” as used in AEDPA, is a term of art); Panetti v.
Quarterman, 551 U.S. 930, 943-44 (2007) (“The phrase ‘second or successive’ is
not self-defining. It takes its full meaning from our case law, including decisions
predating the enactment of the [AEDPA.”). The Stewart prisoner, convicted of
distributing more than 50 grams of cocaine base in violation of 21 U.S.C. §
841(a)(1), (b)(1)(A)(iii) and 18 U.S.C. § 2, had filed his first § 2255 motion, and
had then successfully challenged the state convictions that were predicate
convictions for his career offender sentence. 646 F.3d at 857–58. One month after
his state convictions were vacated, he filed a second-in-time § 2255 motion, and
requested vacatur of the career offender enhancement pursuant to Johnson v.
United States, 544 U.S. 295 (2005). Id. at 858. In Johnson, the Supreme Court
addressed the fourth paragraph of 28 U.S.C. § 2255(f)(4), which states: “A 1-year
period of limitation shall apply to a motion under this section. The limitation
period shall run from the latest of—(4) the date on which the facts supporting the
claim or claims presented could have been discovered through the exercise of due
diligence.” The Johnson Court held that a state court vacatur is a matter of “fact”
that refreshes the one-year AEDPA statute of limitations period, as long as the
petitioner has shown due diligence in seeking the vacatur order. 544 U.S. at 302.
The district court in Stewart had dismissed the prisoner’s second-in-time § 2255
motion as successive, but the Eleventh Circuit reversed, explaining that the basis
for the second-in-time § 2255 motion—vacatur of the predicate state convictions—
did not exist at the time of the prisoner’s first § 2255 motion, and thus the
numerically second motion was not “second or successive” within the meaning of
AEDPA. 646 F.3d at 863–65. The court also said that the prisoner had acted
diligently in pursuing the vacatur and in bringing a subsequent § 2255 motion
raising a claim, under Johnson, that the statute of limitations for bringing his claim
had been refreshed. Id. at 863–64.
In reaching the conclusion that the Stewart prisoner’s motion was not
“second or successive,” the Eleventh Circuit discussed with approval the Fifth
Circuit’s decision in Leal Garcia v. Quarterman, 573 F.3d 214 (5th Cir. 2009),
where that court held that a prisoner’s second habeas petition, based upon a 2005
declaration by President George W. Bush to enforce an order of the International
Court of Justice, was not “second or successive.” According to Leal Garcia, the
prisoner’s second motion to vacate was not “second or successive” because the
defect complained of did not even come into existence until the state of Texas
decided it would not respect the President’s 2005 directive to comply with the
International Court of Justice’s order. 573 F.3d at 223–24.
Stewart and Leal Garcia, however, emphasized the distinction between
claims based on a factual predicate that was “merely undiscoverable” and claims
based on a defect that was altogether nonexistent. Stewart, 646 F.3d at 863; Leal
Garcia, 573 F.3d at 222. In explaining why the Stewart prisoner could bring his
second motion to vacate without it being considered “second or successive,” the
Eleventh Circuit said:
“[C]laims based on a factual predicate not previously discoverable are
successive,” but “[i]f . . . the purported defect did not arise, or the
claim did not ripen, until after the conclusion of the previous petition,
the later petition based on that defect may be non-successive.” Leal
Garcia, 573 F.3d at 221, 222. We are not faced with a claim based on
facts that were merely undiscoverable. Rather, Stewart has presented
a claim, the basis for which did not exist before the vacatur of his
predicate state convictions—after his first § 2255 motion had already
been filed and dismissed.
Stewart, 646 F.3d at 863.
The Eleventh Circuit later applied the Stewart holding in Boyd v. United
States, 754 F.3d 1298 (11th Cir. 2014). In Boyd, the petitioner, whose sentence was
enhanced pursuant to 21 U.S.C. § 851 based on two prior state convictions, filed an
initial § 2255 motion in which he did not argue the validity of those state
convictions. Id. at 1300. His convictions were later vacated, and the petitioner
requested to be resentenced in his second and third § 2255 motions, which were
dismissed as successive. Id. After his fourth § 2255 motion, in which he raised the
same claim, was also dismissed as successive, the court held that, under Stewart,
the petitioner’s initial § 2255 motion did not render his fourth § 2255 motion
successive because the grounds for the fourth § 2255 motion—the vacatur of his
state conviction—did not exist at the time of the initial § 2255 motion. Id. at 1300–
Even though both parties agree that Stutson’s situation is similar enough to
the facts of Stewart and Boyd that it is fair to conclude that Stutson’s third § 2255
motion is not successive, and thus considerable on its merits by this Court, the
Court is hesitant to extend Stewart’s holding to the facts under consideration here.
As an initial matter, the jurisdiction of this Court cannot be established
through waiver. See In re Morgan, 717 F.3d 1186, 1193 (11th Cir. 2013) (“The bar on
second or successive motions is jurisdictional . . .”); Gonzalez v. Thaler, 132 S. Ct.
641, 648 (2012) (“Subject-matter jurisdiction can never be waived or forfeited.”).
Additionally, the Stewart and Boyd petitioners’ prior felonies were vacated,
and not merely reclassified as misdemeanors, as were Stutson’s. This factual
difference is important because both the Stewart and Boyd petitioners were able to
utilize the Supreme Court’s holding in Johnson that “a defendant given a sentence
enhanced for a prior conviction is entitled to a reduction if the earlier conviction is
vacated.” 544 U.S. at 303 (emphasis added); see also Stewart, 646 F.3d at 859, 864–
65 (“The vacatur order gives a defendant . . . the basis to challenge an enhanced
federal sentence . . . .”). In other words, the Stewart and Boyd petitioners’ § 2255
motions were more likely to be meritorious because of Johnson, a fact that may have
influenced the Eleventh Circuit in its decision that the “gatekeeping” provision of
§ 2255(h) did not apply in those cases.
In contrast here, there is no corresponding authority that Stutson may avail
himself of stating that reclassification of a prior felony necessarily entitles a
prisoner to a sentence reduction on collateral review. In fact, and as explained in
the next section addressing the merits of Stutson’s claim, Stutson’s argument has
been squarely rejected by the Ninth Circuit. See United States v. Diaz, 838 F.3d
968, 972 (9th Cir. 2016) (“California’s actions [in enacting Proposition 47]—taken
long after [the defendant’s] state conviction became ‘final’—have no bearing on
whether § 841’s requirements are satisfied.”).
Further, the Eleventh Circuit, sitting en banc, refused to extend Stewart to
allow a petitioner to file an otherwise successive petition in order to argue that his
classification as a career offender under the U.S. Sentencing Guidelines was
erroneous because his prior conviction for felony child abuse can no longer be
considered a “crime of violence” after Begay v. United States, 553 U.S. 137 (2008).
See Spencer v. United States, 773 F.3d 1132, 1143 (11th Cir. 2014) (en banc). The
Spencer’s prior conviction has not been vacated [as it was in Johnson
and Stewart], and that distinction matters. When a conviction is
vacated, that vacatur constitutes a “new ‘fact’” with which the
petitioner can challenge his sentence. Stewart, 646 F.3d at 858. But
here, Spencer argues no new factual basis for reversing his sentence.
He presents instead an argument of legal innocence. Even if we were
to agree with Spencer that he is “innocent” as a career offender, that
legal innocence falls far short of factual innocence, the kind of
innocence involved in Johnson and Stewart. See McKay v. United
States, 657 F.3d 1190, 1199 (11th Cir. 2011) (“[A]ctual innocence
means factual innocence, not mere legal insufficiency.” (internal
quotation marks omitted)). If we were to conclude that felony child
abuse was not a “crime of violence,” that legal conclusion would not
negate the fact that Spencer committed a serious crime. The
sentencing judge would consider his prior conviction for felony child
abuse anew during resentencing. Johnson and Stewart cannot stand for
the proposition that a prisoner sentenced under advisory guidelines
whose prior convictions remain valid can establish that an error in
sentencing is a complete miscarriage of justice.
Id. As in Spencer, and as explained further in the next section, Stutson’s claim that
his prior felonies are no longer countable for purposes of his enhanced sentence is
more akin to one of legal innocence than factual innocence. See Diaz, 838 F.3d at
975 (observing that “Proposition 47 does not change the historical fact that [the
defendant] violated § 841 ‘after two or more prior convictions for a felony drug
offense [had] become final’”) (quoting 21 U.S.C. § 841(b)(a)(A))).
In sum, it appears that whether the AEDPA’s ban on successive petitions
without prior authorization may be lifted in any particular case is a fact-specific
inquiry. The facts at issue here differ from those in Stewart and Boyd because the
event making Stutson’s third § 2255 motion “ripe” is the reclassification of his
prior felonies, not their complete vacatur. Nor is Stutson’s case similar to the facts
of the cases relied upon by the Eleventh Circuit for the proposition that the
successive petition ban is not always a bright-line rule. See, e.g., Pannetti, 551 U.S.
at 945 (carving out an exception to the ban on successive petitions for prisoners
raising a claim of incompetency to be executed pursuant to Ford v. Wainwright, 477
U.S. 399 (1986), and describing the case’s “unusual posture”). It is a close
question, but in the absence of Eleventh Circuit precedent on point, 1 the Court is of
the opinion that in the absence of an authorizing order from the Eleventh Circuit,
this Court lacks jurisdiction to consider Stutson’s claim.
The Court’s independent research has revealed that other federal district courts have
proceeded differently when faced with this issue. Compare Damper v. United States, 2017 WL
3025973 (S.D. Miss. Feb. 22, 2017) (ruling that it was without jurisdiction to consider
petitioner’s successive § 2255 motion premised on a Proposition 47 claim) with United States v.
Ogburn, 2017 WL 1067750, at *1 (D. Mont. March 21, 2017) (applying Stewart to hold that a
prisoner’s § 2255 motion based upon the reclassification of his prior felony convictions under
Proposition 47 is not a second or successive petition because it presents a ground that was not
ripe during the first habeas petition); McFarland v. United States, 2016 WL 6600071 (Nov. 8,
2016) (applying Pannetti to hold that because California’s Proposition 47 was not effective until
November 5, 2014, the petitioner’s § 2255 motion was not ripe at the time he filed his previous §
2255 motion and § 2255(h)’s requirement does not apply).
However, in an abundance of caution and in the event the Eleventh Circuit
were to determine that this Court should have, in fact, considered the merits of
Stutson’s claim, the Court will now explain why Stutson’s claim fails on its merits.2
Stutson is Not Entitled to Relief on the Merits
Stutson moves this Court to declare his current Life sentence illegal,
following the California court’s determination that the prior convictions used to
enhance his federal sentence are now deemed misdemeanors.
As noted, the Ninth Circuit has recently squarely rejected Stutson’s
argument. Diaz involved a federal drug conspiracy, as in this case, and the Ninth
Circuit held that California’s Proposition 47 does not undermine a prior
conviction’s felony status for purposes of 21 U.S.C. § 841. 838 F.3d at 972. The
court stated that federal law, not state law, governs the interpretation of federal
statutes, and described § 841 as a “backward-looking” statute, which requires
“only that a defendant have committed his federal crime ‘after two or more prior
convictions for a felony drug offense have become final.’” Id. (quoting 21 U.S.C. §
841(b)(1)(A)). Thus, the court concluded, a state’s subsequent change to a state
conviction, after it becomes final, “‘does not alter the historical fact of the [prior
Assuming Stutson’s claim is properly before this Court, it is also timely. See 28 U.S.C. §
255(f)(4) (“A 1-year period of limitation shall apply to a motion under this section. The
limitation period shall run from the latest of—(4) the date on which the facts supporting the
claim or claims presented could have been discovered through the exercise of due diligence.”).
state] conviction’ becoming final—which is what § 841 requires.” Id. (quoting
United States v. Dyke, 718 F.3d 1282, 1292 (10th Cir. 2013)). Accordingly, the
defendant in Diaz, who was sentenced to Life under § 841(b)(1)(A) and whose
prior conviction was later reclassified in the same manner as Stutson’s, was entitled
to no relief.
The Eighth Circuit has also rejected a similar argument made by a § 2255
petitioner that he no longer qualified as a career offender after a Minnesota state
court granted his motion for early discharge from probation on two prior state law
felonies, the effect of which changed his felony convictions to misdemeanors under
Minnesota law. See Hirman v. United States, 613 F.3d 773, 775 (8th Cir. 2010). The
Eighth Circuit distinguished the situation before it—involving state felony
convictions that were deemed to be misdemeanors by the Minnesota court—from
cases in which a defendant may successfully attack a federal sentence if that
sentence was enhanced based on a prior state conviction which is later vacated. Id.
(citing Johnson, 544 U.S. at 302–03). Also engaging in a backward-looking analysis,
the Eighth Circuit stated, “The fact remains that [the defendant] was convicted of
crimes that were ‘punishable by . . . imprisonment for a term exceeding one year,’
U.S.S.G. § 4B1.2, comment (n.1), thereby exposing him to an enhanced sentence.”
Id. at 776. The state court’s action changing the prior convictions to misdemeanors
under Minnesota law did “nothing to alter this analysis.” Id.
Even if the Court were to reject the decision in Diaz and find that Stutson’s
sentence is no longer supported by two convictions for a felony drug offense, his
claim is still without merit and he is due no relief. Section 2255, as the Eleventh
Circuit has noted, “does not provide a remedy for every alleged error in conviction
and sentencing.” Spencer, 773 F.3d at 1138. Indeed, a district court lacks authority
to review alleged errors, unless the claimed error constitutes “a fundamental defect
which inherently results in a complete miscarriage of justice.” Hill v. United States,
368 U.S. 424, 428 (1962). This standard was subsequently refined in United States
v. Addonizio, where the Supreme Court ruled that a “lawful” sentence did not
result in a “complete miscarriage of justice.” 442 U.S. 178, 186-87 (1979). A lawful
sentence is one that does not exceed the statutory maximum sentence. Spencer, 773
F.3d at 1144; Sun Bear v. United States, 644 F.3d 700, 705 (8th Cir. 2011) (en banc)
(noting that an unlawful sentence is one imposed without, or in excess of, statutory
In this case, the Life sentence that the Court imposed upon Stutson is a
lawful sentence. Because of the quantity of drugs attributable to him, Stutson was
sentenced under 21 U.S.C. § 841(b)(1)(A). That statute essentially provides a
three-tiered range of punishment: if a defendant has no prior felony drug
convictions, he faces a sentence of not less than 10 years or more than Life; with
one prior felony drug conviction, his range increases to 20 years to Life; and with
two or more prior felony drug convictions, he receives a mandatory term of Life.
Because Stutson had incurred what were then three prior convictions for a felony
drug offense, he was in the third tier—requiring the Court to impose a Life
sentence. Granted, the offenses underpinning two of those convictions are no
longer considered felonies following the Proposition 47 reclassification. But, even if
one assumes these convictions may not be used now to enhance Stutson’s
punishment, it is of no consequence; the statutory maximum he faced at the time
was Life, regardless of enhancement. If Stutson were to be re-sentenced today, this
Court would consider the reclassified convictions, along with Stutson’s lengthy
criminal history (Category VI), and impose the same sentence. See Spencer, 773
F.3d at 1140. Because Stutson’s Life sentence is entirely lawful, there has been no
“complete miscarriage of justice,” and he is due no relief.
For the reasons stated above, the § 2255 motion is due to be denied.
Additionally, the Court declines to issue a certificate of appealability. This Court
may issue a certificate of appealability “only if the applicant has a made a
substantial showing of the denial of a constitutional right.”
28 U.S.C. §
2253(c)(2). To make such a showing, a “petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable and wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that
“the issues presented were adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations
omitted). Stutson’s claim does not satisfy either standard. Accordingly, insofar as
an application for a certificate of appealability is implicit in Stutson’s motion, it is
due to be denied.
A separate closing order will be entered.
DONE and ORDERED on October 13, 2017.
L. Scott Coogler
United States District Judge
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