Powell v. Sepanek
Filing
3
MEMORANDUM OPINION & ORDER; 1) petition for writ of habeas corpus is DENIED WITHOUT PREJUDICE 2) Court will enter an appropriate judgment 3) Matter is stricken from docket. Signed by Judge Henry R. Wilhoit, Jr on 7/8/13.(SMT)cc: COR, Powell via USMail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT ASHLAND
TROY JAMES POWELL,
Petitioner,
V.
M. SEPANEK, Warden,
Respondent.
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Civil No. 0: 13-072-HRW
MEMORANDUM OPINION
AND ORDER
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Troy James Powell is an inmate confined at the Federal Correctional Institution
in Ashland, Kentucky. Proceeding without counsel, Powell has filed a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2241. [D. E. No.1]
The Court conducts an initial review of habeas corpus petitions. 28 U.S.C.
§ 2243; Alexander v. Northern Bureau ofPrisons, 419 F. App'x 544, 545 (6th Cir.
2011). The Court must deny the petition "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 l(b)). The Court evaluates Powell's petition under a more
lenient standard because he is not represented by an attorney. Erickson v. Pardus,
551 U.S. 89,94 (2007); Burton v. Jones, 321 F.3d 569,573 (6th Cir. 2003). At this
stage, the Court accepts the petitioner's factual allegations as true, and his legal
claims are liberally construed in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555-56 (2007).
In his petition, Powell indicates that a jury found him guilty in 2002 of
possession with intent to distribute cocaine base in violation of 21 U.S.C. §§
841(a)(1) and 846, and that he was subsequently sentenced to a 240-month term of
incarceration. l [D. E. No.1, pp. 1-2] Powell contends that under the Sixth Circuit's
recent decision in United States v. Blewitt, No. 12-5226,2013 WL 2121945 (6th Cir.
May 17,2013), he is entitled to retroactive application ofthe Fair Sentencing Act of
2010 ("FSA"), and to resentencing under that provision's more lenient 18-1 ratio. [D.
E. No.1, pp. 2-3]
In Blewitt, a divided panel of the Sixth Circuit held that the 100-1 ratio of
cocaine to crack embodied in the Anti-Drug Abuse Act of 1986 ("ADAA") was
racially discriminatory in its effect. Blewitt, 2013 WL 2121945, at *4. The majority
further held that a judge who determines that, as a matter of construction, the FSA is
not retroactively applicable, is at least perpetuating, if not actively engaging in,
intentional racial discrimination. Id. at *5 ("If we continue now with a construction
I In a prior petition filed with this Court, Powell indicated that this conviction was entered
in a federal court in North Carolina in United States v. Powell, 0 l-CR-05-07 (W.D.N.C. 2001). See
Powell v. Holland, No. 10-12-HRW (E.D. Ky. 2010).
of the statute that perpetuates the discrimination, there is no longer any defense that
the discrimination is unintentional. The discriminatory nature of the old sentencing
regime is so obvious that it cannot seriously be argued that race does notplaya role
in the failure to retroactively apply the Fair Sentencing Act.") (emphasis added).
The majority concluded that, in order to avoid constitutional concerns under the
Equal Protection Clause, the doctrine of constitutional doubt required that the FSA
be interpreted to be retroactively applicable to all defendants sentenced under the
ADAA. Id. at *6. Finally, the majority contended that retroactive application ofthe
FSA is compelled by the Sentencing Guidelines and 18 U.S.C. § 3582(c)(2) itself.
Blewitt, 2013 WL 2121945, at *7-8.
The dissent in Blewitt noted that a constitutional challenge to the ADAA was
not raised by either of the parties, but sua sponte by the majority without the benefit
ofbriefing; that the majority decision violated the Sixth Circuit's procedural rules by
overruling a published decision of a prior panel on the same legal question2 ; and that
the majority's decision conflicted with Dorsey v. United States, _
U.S. _ , 132
S.Ct. 2321,2335 (2012) ("in federal sentencing the ordinary practice is to apply new
penalties to defendants not yet sentenced, while withholding that change from
United States v. Hammond, 712 F.3d 333, 336 (6th Cir. April 05, 20 13)("[T]he FSA is not
retroactive to defendants like Hammond whose sentences were modified after the effective date of
the FSA but who were originally sentenced before its effective date. ")
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defendants already sentenced.") (emphasis added). Blewitt, 2013 WL 2121945, at
*9-13 (Gilman, J., dissenting).
Seeking to take advantage of the Sixth Circuit's decision in Blewitt, Powell
filed his petition under § 2241 seeking an order requiring him to be resentenced under
the FSA. However, the Court must deny Powell's petition, without prejudice, as he
seeks relief prematurely and in the wrong court.
First, while the Sixth Circuit has entered its opinion in Blewitt, the decision of
a federal appeals court is not final until the court enters its mandate. Fed. R. App. P.
41; United States v. Jackson, 549 F.3d 963,980 (5th Cir. 2008); Youghioghenyand
Ohio Coal Co. v. Milliken, 200 F.3d 942 (6th Cir. 1999) ("Unlike district courts, the
courts of appeals direct the district courts and administrative agencies over which
they have appellate or reviewing jurisdiction through mandates, not through orders
and judgments."). The delay before the mandate issues is designed to permit the
parties to the appeal to seek rehearing, either by the panel or by the Sixth Circuit
sitting en bane. Reliance upon a decision of an appellate court prior to entry of the
mandate invites unnecessary error, and will thus be avoided.
Second, even if the Blewitt decision were final, a defendant sentenced under
the ADAA make not seek relief under that authority pursuant to a habeas corpus
petition filed under § 2241. Blewitt authorized such a defendant to seek relief only
by filing a motion for "retroactive resentencing under 18 U.S.C. § 3582(c)(2)," a
motion which by its terms must be filed in the court that sentenced him. Cf Dillon
v. United States, _
U.S. _ , 130 S.Ct. 2683,2688,2689-91 (2010). In contrast,
while the "savings clause" found in 28 U.S.C. § 2255(e) permits a petitioner to
challenge his conviction in a habeas corpus petition filed under § 2241 in narrowlydefined circumstances, the reach of the "savings clause" does not extend to
challenges only to the sentence imposed. Hayes v. Holland, 473 F. App'x 501,502
(6th Cir. 2012) ("The savings clause of section 2255(e) does not apply to sentencing
claims."); Wyatt v. United States, 574 F.3d 455,460 (7th Cir. 2009); United States v.
Poole, 531 F.3d 263,267 n.7 (4th Cir. 2008). To the extent Powell seeks reliefunder
§ 3582(c)(2), he most do so by motion filed in the court that sentenced him.
Accordingly, IT IS ORDERED that:
1.
Powell's petition for a writ of habeas corpus [D. E. No.1] is DENIED
WITHOUT PREJUDICE.
2.
The Court will enter an appropriate judgment.
3.
This matter is STRICKEN from the docket.
This the 8th day of July, 2013.
SM]1edByo
Henry R. MDt S.
United States ~_
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