(HC)Wilson v. Thompson

Filing 29

ORDER signed by Chief District Judge Kimberly J. Mueller on 11/17/2022 ADOPTING 22 The Findings and Recommendations. GRANTING 10 Motion to Dismiss; The Clerk of Court is directed to file on the docket a copy of the 1995 sentencing transcript in the case of Washington v. Wilson (No. 94-1-04972-2); Within twenty-one days from the date of this order, respondent shall respond to petitioner's 28 Motion to Amend; fourteen days thereafter, petitioner may file a reply; and This matter is referred back to the assigned magistrate judge for all further pre dispositive proceedings consistent with this order. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CORNELL E. WILSON, JR.,

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Petitioner,

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v.

No. 2:21-cv-0793-KJM-KJN

ORDER

P. THOMPSON, Warden, FCI-Herlong,
Respondent.

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Petitioner, a federal prisoner proceeding pro se, filed this application for a writ of habeas

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corpus under 28 U.S.C. § 2241. The matter was referred to a United States Magistrate Judge as

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provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On March 17, 2022, the magistrate judge filed findings and recommendations, which were

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served on all parties and contained notice to all parties that any objections to the findings and

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recommendations were to be filed within fourteen days. F. & R., ECF No. 22. Petitioner filed

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objections to the findings and recommendations. Obj., ECF No. 26. Subsequently, petitioner

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filed a motion for leave to amend to include a new claim, Mot., ECF No. 28, which is not

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addressed by the findings and recommendations.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Having reviewed the file, the court finds the

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findings and recommendations to be supported by the record and by the proper analysis.
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As the magistrate judge sets out in the findings and recommendations, the petitioner was

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charged and later sentenced to a 646-month term in the Central District of California. F. & R. at

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1–2; see Mins. Sent’g, United States v. Wilson, No. 00-1025, (C.D. Cal. Sept. 17, 2001), ECF

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No. 173. The sentencing judge determined petitioner was a career offender under the Sentencing

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Guidelines based on his two prior offenses. F. & R. at 2; see Presentence Report (PSR), ECF

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No. 16 (sealed). The petitioner then moved to vacate, set aside, or correct his sentence under

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28 U.S.C. § 2255 three separate times, all of which were denied by the sentencing court. Id. at 2–

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3. The petitioner has now filed a 28 U.S.C. § 2241 petition with this court, the court with

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jurisdiction over his current custodian, invoking the § 2255(e) “escape hatch” clause, id. at 4,

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which is available “when a petitioner (1) makes a claim of actual innocence, and (2) has not had

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an ‘unobstructed procedural shot’ at presenting that claim[,]” Stephens v. Herrera, 464 F.3d 895,

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898 (9th Cir. 2006). The magistrate judge found the petitioner has not sufficiently demonstrated

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actual innocence and recommends dismissing this petition. F. & R. at 6–7.

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The court addresses and rejects the petitioner’s objections to the magistrate judge’s

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findings and recommendations. The petitioner alleges he is actually innocent of the career

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offender enhancement and asserts the magistrate judge “over-looks the crucial fact that a

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Washington State conviction for conspiracy to distribute a controlled substance does not qualify

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as a controlled substance offense for the purposes of the Federal Sentencing Guidelines.” Obj. at

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1 (citing United States v. Brown, 879 F.3d 1043 (9th Cir. 2018)). In Brown, the Ninth Circuit

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held the defendant’s previous conviction for conspiracy to deliver methamphetamine under the

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Revised Code of Washington section 69.50.407 did not qualify as a “controlled substance

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offense” under the Sentencing Guidelines “because the Washington drug conspiracy statute is not

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a categorical match to conspiracy under federal law.” 879 F.3d at 1046. The court interpreted the

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statute to cover conduct not covered under federal law, i.e., an agreement with a government

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agent or informant. Id. at 1048–49. Here, petitioner previously was convicted of conspiracy to

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deliver cocaine under the same statute. See J. & Sent’g (Mar. 21, 1995), Washington v. Wilson

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(No. 94-1-04972-2), microfilm 1283-794.1 While the court agrees the petitioner’s prior drug

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trafficking conviction does not support his career offender enhancement, the court’s analysis does

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not end there.

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To demonstrate actual innocence with respect to the career offender enhancement, the

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petitioner first must show he received a mandatory sentence under a mandatory sentencing

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scheme. See Allen v. Ives, 950 F.3d 1184, 1190 (9th Cir. 2020), reh’g en banc denied, Allen v.

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Ives, 976 F.3d 863 (9th Cir. 2020); see Shepherd v. Unknown Party, Warden, FCI Tucson,

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5 F.4th 1075, 1077–78 (9th Cir. 2021) (limiting holding in Allen to petitioners who “received a

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mandatory sentence under a mandatory sentencing scheme”).

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Here, petitioner has not shown he received a mandatory sentence under a mandatory

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sentencing scheme. As the magistrate judge notes, the sentencing court in the Central District of

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California sentenced the petitioner “to the low end of the guidelines range set forth in the

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presentence report.” F. & R at 6; see PSR; Mins. Order at 3, United States v. Wilson,

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No. 00-1025 (C.D. Cal. Mar. 1, 2018), ECF No. 353. In denying petitioner’s third section 2255

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motion, the sentencing court noted the career offender enhancement only affected petitioner’s

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sentence on counts two and four, and the “increased guideline range remained within the

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aggregated . . . statutory maximum applicable to those counts.” Mins. Order at 3, United States v.

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Wilson, No. 00-1025. Counts two and four each carried a 25 year (300 month) maximum, id.;

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PSR at 23, and the sentencing court exercised its discretion to sentence the petitioner to

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262 months as to counts two and four with the terms to be served concurrently, Mins. Sent’g,

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United States v. Wilson, No. 00-1025. Thus, as to the counts affected by the enhancement based

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on career offender status, the petitioner did not receive a mandatory sentence under a mandatory

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sentencing scheme. The petitioner has not met a threshold requirement for showing actual

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innocence.

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In light of the petitioner’s motion to amend, further briefing is ordered to determine

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whether petitioner should be allowed to file a second amended petition.

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The transcript is not on the court’s docket but the court was able to obtain a copy from
the Pierce County Superior Court’s docket. That copy, of which the court takes judicial notice,
will be filed on the docket of this case for reference.
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Accordingly, IT IS HEREBY ORDERED:

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1. The findings and recommendations filed March 17, 2022, are adopted;

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2. Respondent’s motion to dismiss the first amended petition (ECF No. 10) is granted;

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3. The Clerk of Court is directed to file on the docket a copy of the 1995 sentencing

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transcript in the case of Washington v. Wilson (No. 94-1-04972-2);

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4. Within twenty-one days from the date of this order, respondent shall respond to

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petitioner’s motion to amend (ECF No. 28); fourteen days thereafter, petitioner may file a reply;

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and

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5. This matter is referred back to the assigned magistrate judge for all further

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predispositive proceedings consistent with this order.

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DATED: November 17, 2022.

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