Anderson v. Snyder-Norris
Filing
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MEMORANDUM OPINION & ORDER 1) petition for writ of habeas corpus 1 is DENIED 2) Court will enter an appropriate judgment 3) habeas proceedings is DISMISSED AND STRICKEN FROM Court's docket. Signed by Judge Henry R. Wilhoit, Jr on 9/2/15.(SMT)cc: COR, Anderson via USMail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND
DAVID RAHEEM ANDERSON,
Petitioner,
v.
JODIE L. SNYDER-NORRIS,
Warden,
Respondent.
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Civil Action No. 15-CV-57-HRW
MEMORANDUM OPINION
AND ORDER
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Petitioner David Raheem Anderson is an inmate confined by the Bureau of Prisons in the
Federal Correctional Center in Ashland, Kentucky. Anderson has filed a prose petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2241 [D. E. No. 1], challenging the enhancement of his
federal sentence under the residual clause of the Armed Career Criminal Act ('ACCA:), 18
U.S.C.A. § 924(e)(2)(B)(ii). 1 Anderson has paid the $5.00 filing fee. [D. E. No.3]
In conducting an initial review of habeas petitions under 28 U.S.C. § 2243, the Court
must deny the relief sought"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 !(b)). Because Anderson
1
Under the ACCA, a defendant convicted of being a felon in possession of a firearm faces more severe punishment
if he has three or more previous convictions for a violent felony. See 28 U.S.C. § 924(e)(l) (discussing punishment
for § 922(g) offenders). The ACCA defines a violent felony as "any crime punishable by imprisonment for a term
exceeding one year ... that-{i) has as an element the use, attempted use, or threatened use of physical force against
the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves
conduct/hat presents a serious potelllial risk ofphysical in}WJ' to another." 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis
added). The last clause of that statute, "or otherwise involves conduct that presents a serious potential risk of
physical injury to another," is known as the "residual clause.,
I
is not represented by an attorney, the Court evaluates his petition under a more lenient standard.
Erickson v. Pardus, 55! U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003).
Thus, at this stage of the proceedings, the Court accepts Anderson's factual allegations as true and
and liberally construes his legal claims in his favor.
The Court has reviewed Anderson's habeas petition but for the reasons set forth below,
determines that that it cannot grant the relief which Anderson seeks, i.e., an order granting him
relief from the 180-month federal sentence which he is currently serving.
BACKGROUND
In July 2007, Anderson pleaded guilty in a South Carolina federal court to being a felon
in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(l ), 924( e).
United States v.
Anderson, No. 6:07-CR-252-MGL-1 (D. S. C. 2007) [R. 16-17, therein] Pursuant to the"residual
clause' of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), the district court determined that Anderson
was an armed career criminal based on his five prior convictions for violent felony or serious
drug offenses, and on November I, 2007, sentenced Anderson to the mandatory minimum 180month (IS-year) prison term. [R. 23, therein].
Anderson's counsel filed an appeal under Anders v. California, 386 U.S. 738 (1967),
acknowledging that no meritorious grounds for appeal existed, but suggesting the district court
had erred in sentencing Anderson under the ACCA, because the prior convictions used to
support that designation were not set forth in the indictment.
The Fourth Circuit rejected
Anderson's arguments and affirmed the sentence. United States v. Anderson, 321 F. App'x 334
(4th Cir. 2009)
2
In April 2010, Anderson filed his first motion in the district court seeking to vacate his
sentence under 28 U.S.C. § 2255. [Anderson Criminal Case, No. 6:07-CR-525; R. 40, therein].
Anderson alleged that in two respects, he had been denied affective assistance of counsel in
violation of his rights guaranteed under the Sixth Amendment of the U.S. Constitution. First,
Anderson argued that his counsel failed to object to the fact that the district comi had used his
youthful offender convictions to classify him as an armed career criminal, and that those
youthful offender convictions could not serve as predicate offenses under the ACCA. Second,
Anderson asserted that his counsel failed to object to the fact that the district court used his prior
conviction for simple possession as a predicate offense to satisfy the ACCA, arguing that simple
possession cannot constitute a "serious drug offense' and thus qualify as a predicate offense.
Anderson further argued that he did not appeal those issues because his counsel advised him that
no factual basis existed for an appeal.
The govennnent responded that Anderson had received effective assistance of counsel in
all respects. The government argued that Anderson's counsel had both objected to the use of the
youthful offender convictions as predicate offenses under the ACCA and had filed a
supplemental brief as to whether juvenile convictions could serve as predicate offenses, but that
the Fourth Circuit did not consider the issue because Anderson's counsel agreed that Anderson's
convictions were not juvenile convictions. The government also argued that Anderson's simple
possession convictions were not used as predicate offenses at sentencing.
On October 10, 2010, the district court denied Anderson's first § 2255 motion. [R. 52,
therein] The court determined that based on applicable Fourth Circuit precedent, it properly
concluded that Anderson's 1981 convictions--which included convictions for housebreaking--
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were violent felonies punishable by a term of imprisonment exceeding one year, and that they
qualified as predicate offenses for sentence enhancement purposes under ACCA. [!d., pp. 4-9] 2
The district court also rejected as unfounded Anderson's second claim alleging ineffective
assistance of counsel based on his counsefs alleged failure to object to the use of his prior simple
possession conviction as a predicate offense, stating that it did not use that particular conviction
as a predicate offense to enhance his sentence under the ACCA. [!d., p. 9 therein] The district
court explained that it instead used five other previous convictions which were classified as
predicate offenses, i.e., Anderson's 1981 convictions and his convictions for accessory after the
fact to burglary or housebreaking with intent to steal and grand larceny, ABHAN, and voluntary
manslaughter.
[ld.,]
Anderson appealed, but on June 1, 2011, the Fom1h Circuit Court of
Appeals denied his motion for a certificate of appealability. [R. 63, therein]
On August 13, 2012, Anderson filed his second § 2255 motion in the district court,
seeking relieffrom his sentence based on United States v. Simmons, 649 F.3d 237 (4111 Cir. 2011.
[ld., R. 68, therein]
On January 13, 2014, the district court denied Anderson's second§ 2255
motion for lack of jurisdiction because Anderson had not obtained the Fourth Circuits permission
permission to file a second or successive § 2255 motion.
2
[!d., pp. 3-5, therein] Anderson
On October 19, 1981, Anderson pleaded guilty in South Carolina's Court of General Sessions to two separate sets
of crimes (his 1981 convictions). The first set of crimes to which he pleaded guilty involved housebreaking and
larceny that took place at a store house called the "Catalina Club." The incident occurred on October 29, 1980,
when Anderson was seventeen. The circuit court judge sentenced Anderson under the Youthful Offenders Act
("YOA''), S.C. Code Amr. §§ 24-19-10 to -160, for a period not to exceed six years. The second set of crimes to
which Anderson pleaded guilty involved housebreaking, receiving stolen goods, and larceny that took place at a
store house called "Wilson's Curb Market, Inc." This incident occurred on July 31, 1981, when Anderson was still
seventeen. Anderson was again sentenced under the YOA for a term not to exceed five years. On October 22, 1982,
Anderson pleaded guilty in General Sessions to accessory after the fact to burglary or housebreaking with intent to
steal and grand larceny that occurred at a dwelling house on or about August 14 or 15, 1982. Anderson was
nineteen at the time of the incident. He received another YOA sentence not to exceed six years, but the sentence
was suspended to two years' probation. In 1986, Anderson pleaded guilty in state coutt to voluntary manslaughter,
and in 2000, he was convicted in state court of as he was convicted in state court of assault and battery of a high and
aggravated nature (ABHAN).
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appealed that order, but the Fourth Circuit Court of Appeals denied his motion for an order
authorizing the district court to consider second or successive § 2255 motion.
[!d., R. 81,
therein; see In re: David Raheem Anderson, No. 140381 (4th Cir. Aug. 4, 2014)]
ALLEGATIONS ASSERTED IN THE§ 2241 PETITION
Jolmson asserts that based on the Supreme Courfs recent decision in Johnson v. United
States, 135 S.Ct. 2551 (2015), the district court improperly enhanced his sentence under the
residual clause of the ACCA, and that he should be resentenced and/or released from federal
custody. Johnson addressed the constitutionality of the residual clause of the ACCA, holding
that it violates due process because it is unconstitutionally vague. Johnson, 135 S.Ct. at 2557.
Anderson contends that because his 180-month sentence was based on the residual clause
of the ACCA, and because the Supreme Court held in Johnson that the residual clause is
unconstitutionally vague, his enhanced sentence violates the U.S. Constitution's guarantee of due
process.
Anderson further contends that Johnson announces a new substantive rule of
constitutional law that applies retroactively to final convictions such as his, and that pursuant to
28 U.S.C. § 2241, he is entitled to immediate relief from his 180-month sentence.
DISCUSSION
As a general rule, 28 U.S.C. § 2255 provides the correct avenue to challenge a federal
conviction or sentence, whereas a federal prisoner may file a § 2241 petition if he is challenging
issues which relate to the execution of his sentence (i.e., the BOP's calculation of sentence credits
or other issues affecting the length of his sentence). See United States v. Peterman, 249 F.3d
458, 461 (6th Cir. 2001); see also Charles v. Chandler, 180 F.3d 753, 755-56 (6th Cir. 1999).
The Sixth Circuit explains the difference between the two statutes:
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[C]ourts have uniformly held that claims asserted by federal prisoners that seek to
challenge their convictions or imposition of their sentence shall be filed in the
[jurisdiction of the] sentencing court under 28 U.S.C. § 2255, and that claims
seeking to challenge the execution or manner in which the sentence is served shall
be filed in the court having jurisdiction over the prisoner's custodian under 28
u.s.c. § 2241.
Terrell v. United States, 564 F.3d 442, 447 (6th Cir. 2009) (internal quotation marks omitted). In
short, 28 U.S.C. § 2255 provides the primary avenue for federal prisoners seeking relief from an
unlawful conviction or sentence, not§ 2241. See Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th
Cir. 2003).
Here, Anderson is not challenging the manner in which the BOP is executing his
sentence, such as its computation of sentence credits or consideration of parole eligibility, issues
which fall under the purview of § 2241. Instead, Anderson contends that his sentence, which
was enhanced under the ACCA's residual clause, violates his due process constitutional rights,
and that based on Johnson, he should be resentenced without the enhancement and/or released
from federal custody.
A federal prisoner may challenge the legality of his detention under § 2241 only if his
remedy under§ 2255(e) is found to be inadequate or ineffective. Wooten v. Cauley, 677 F.3d
303, 306-07 (6th Cir. 2012); Charles, 180 F.3d at 756. This exception does not apply where a
prisoner fails to seize an earlier opportunity to correct a fundamental defect in his or her
convictions under pre-existing law, or actually asserted a claim in a prior post-conviction motion
under § 2255 but was denied relief. !d. "It is the petitione1's burden to establish that his remedy
under§ 2255 is inadequate or ineffective:' !d., 180 F.3d at 756. 3
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The remedy under § 2255 is not inadequate where a petitioner either failed to asse1i a legal argument in a § 2255
motion, or where he asse1ied a claim but was denied relief on it. Charles, 180 F.3d at 756-58; Rumler v.
Hemingway, 43 F. App'x 946, 947 (6th Cir. 2002).
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Johnson was not decided until June 26, 2015, long after Anderson filed his § 2255
motion in the South Carolina district court, so to that extent, his remedy under § 2255 could be
considered inadequate and ineffective. But even so, a federal prisoner proceeding under § 2241
can invoke the savings clause of § 2255 only if he alleges "actual innocence;' Bannerman v.
Snyder, 325 F.3d 722, 724 (6th Cir. 2003), and an actual innocence claim can proceed under §
2241 only when it is "based upon a new rule of law made retroactive by a Supreme Court case:'
Townsend v. Davis, 83 F. App'x 728, 729 (6th Cir. 2003).
As to establishing an actual innocence claim, Anderson faces an obstacle: he asserts a
challenge to his enhanced sentence, but the Sixth Circuit has never extended to savings clause to
a § 2241 petitioner who challenges only the enhancement of his sentence. In fact, the Sixth
Circuit has repeatedly held (and in no uncertain terms): "Claims alleging 'actual innocence' of a
sentencing enhancement cannot be raised under§ 2241:' Jones v. Castillo, 489 F. App'x 864, 866
(6th Cir. 2012); see also Reminsky v. United States, 523 F. App'x 327, 329 (6th Cir. 2013) ('The
savings clause under§ 2255(e) does not apply to sentencing claims:); Hayes v. Holland, 473 F.
App'x 501, 502 (6th Cir. 2012) (same); Contreras v. Holland, 487 F. App'x 287, 288 (6th Cir.
2012) (holding that prisonet's challenge to his sentencing enhancement under§§ 841 and 846 was
not cognizable under § 2241); Anderson v. Hogsten, 487 F. App'x 283, 284 (6th Cir. 2012)
(same); Brown v. Hogsten, 503 F. App'x 342, 343 (6th Cir. 2012) ('[C]Iaims of sentencing error
may not serve as the basis for an actual innocence claim:); see also, Hoskins v. Coakley, No.
4:13-CV-1632, 2014 WL 245095 (N.D. Ohio Jan. 22, 2014) (denying§ 2241 petition in which
federal prisoner challenged only his enhanced sentence).
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Anderson does not challenge his underlying § 922(g) firearm conviction in this § 2241
proceeding; instead, he challenges the length of his sentence, arguing that under Johnson, he
should be re-sentenced to a sh01ier prison term. Because Anderson asserts a sentencing claim,
and because the savings clause of§ 2255 extends only to petitioners asserting a claim of actual
innocence regarding their convictions, not their sentences, Anderson has not alleged a valid
actual ilmocence claim that is cognizable under § 2241. Thus, his § 2241 petition must be
denied.
Johnson was decided very recently, and the Courfs research as of August 24, 2015, does
not reveal a case in which the Sixth Circuit has addressed Johnson in the context of a § 2241
petition and/or elaborated as to whether Johnson applies retroactively to final convictions or to
cases on collateral review. As of August 24, 2015, the Sixth Circuit has reversed and remanded
several criminal sentences based on Johnson, but those cases were in various stages of direct
appeal, not collateral review of an already final conviction. See United States v. Bell, No. 136339,2015 WL 4746360, at *1 (6th Cir. Aug. 12, 2015); United States v. Franklin, No. 14-5093,
2015 WL 4590812 (6th Cir. July 31, 2015), United States v. Bilal, No. 14-4190, 2015 WL
4568815 (6th Cir. July 29, 2015). 4
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In Bi/al, the Sixth Circuit reversed and remanded Bilal's enhanced sentence based on Johnson, explaining that
Bilal's 1995 conviction for attempted aggravated robbety was not one of the specific violent felony offenses
enumerated in§ 924 (e)(2)(B)(ii); that it qualified as a violent felony only through the ACCA's residual clause; and
that the Supreme Court had since determined (in Johnson) that the ACCA's residual clause violates the U.S.
Constitution's guarantee of due process because it is unconstitutionally vague. Bi/al, 2015 WL 4568815, at *I.
However, in doing so, the Sixth Circuit noted that " ... a new rule for the conduct of criminal prosecutions is to be
applied retroactively to all cases, state or federal, pending on direct review or not yet final." !d., (citing Griffith v.
Kentucky, 479 U.S. 314,328 (1987)). The court's use of the qualifying phrase describing cases that are "on direct
review or not yet final" suggests that Johnson may apply retroactively only to convictions which have not become
final, not to cases on collateral review in which the conviction has become final, as in Anderson's case.
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At least two other district courts have considered a § 2241 petition in which the petitioner
used Johnson to collaterally challenge a sentence enhanced under the residual clause of the
ACCA. In Cockrell v. Kreuger, No. 1:15-CV-01279, 2015 WL 4648029 (C. D. Ill., Aug 5,
2015), the Illinois district court held that because Johnson qualified as a new substantive rule of
constitutional law, Petitioner Cockrell should bring his sentence challenge under 28 U.S.C. §
2255 rather than through a habeas petition filed under 28 U.S.C § 2241, but that even in light of
Johnson, Cockrell could not challenge his ACCA-enhanced sentence in a § 2241 habeas
proceeding.
[ld. at *2-3]
The district court explained that Cockrell could proceed in the
sentencing court under § 2255 by asking the Seventh Circuit court to Appeals for permission to
file a second or successive petition based on Johnson. ld. at *3 (stating,"Section 2255 provides a
limited remedy--second or· successive petitions are appropriate when the appropriate court of
appeals certifies that it contains '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. §
2255(h)(2):')
A district court in Pennsylvania has taken a similar approach in a § 2241 proceeding filed
by a prisoner who challenged his ACCA enhanced sentence based on Johnson. See Wood v.
1Yiaiorana, No. 3:CV-15-1409, 2015 WL 4663267, at **2-6 (M. D. Pa. Aug. 6, 2015). In that
case, the district court determined that it should not and would not address the prisonel's Johnson
sentencing challenge in § 2241 petition, and actually transfened the § 2241 petition to the
sentencing court for consideration of the prisonet'sJohnson claim under 28 U.S. C.§ 2255. This
Court agrees with analysis and rationale set forth in both cases, but will follow the Illinois
district courfs procedural approach in this § 2241 proceeding.
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If Anderson wishes to challenge his ACCA enhanced sentence under Johnson, he may do
so by asking the Fourth Circuit Court of Appeals for permission to file a second or successive §
2255 motion based on Johnson in the South Carolina district court where he was sentenced. If
the Fourth Circuit interprets Johnson as a new substantive rule of constitutional law that applies
retroactively to cases which have become final, or which are proceeding on collateral review,
Anderson can then bring his retroactive Johnson challenge in a successive § 2255 motion in the
South Carolina district court where he was sentenced. That court is better equipped to analyze
Anderson's sentence in light of Johnson and its impact, if any, on the treatment of his prior state
court convictions.
For the reasons set forth above, Anderson has not demonstrated that he is actually
innocent of the underlying § 9229(g) firearm offense of which he was convicted.
Because
Anderson is not entitled to relief under § 2241, his habeas petition will be denied and this
proceeding will be dismissed.
CONCLUSION
Accordingly, it is hereby ORDERED as follows:
1.
Petitioner David Raheem Anderson's 28 U.S.C. § 2241 petition for a writ of
habeas corpus [D. E. No. 1] is DENIED.
2.
The Court will enter an appropriate Judgment.
3.
This 28 U. S. C. § 2241 habeas proceeding is DISMISSED and STRICKEN
from the Courts docket.
This September 2, 2015.
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