Johnson v. Federal Bureau of Prisons et al
Filing
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MEMORANDUM OPINION & ORDER: (1) DENYING petitioner's 1 Writ of habeas corpus; (2) the court will enter a judgment; (3) matter is STRICKEN from the docket. Signed by Judge Karen K. Caldwell on 2/13/15.(KJR)cc: COR, Johnson (US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
GUSTAVUS JOHNSON,
Petitioner,
Civil No. 5: 14-422-KKC
V.
FRANCISCO QUINTANA, WARDEN,
MEMORANDUM OPINION
AND ORDER
Respondent.
*** *** *** ***
Gustavus Johnson is an inmate confined at the Federal Medical Center in Lexington,
Kentucky. Proceeding without counsel, Johnson has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. [R. 1]
The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243;
Alexander v. Northern Bureau of Prisons, 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 1(b)). The Court evaluates
Johnson’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).
I
On April 27, 2005, a federal grand jury sitting in Atlanta, Georgia handed down a sixcount indictment charging Johnson and a co-defendant with possession with intent to distribute
cocaine and crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), (C); possession and
carrying of a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C.
§ 924(c); and for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).
United States v. Johnson, No. 1:05-CR-194-ODE-CSC-1 (N.D. Ga. 2005).
On September 8, 2005, the government filed a notice pursuant to 21 U.S.C. § 851 that
Johnson was subject to enhanced penalties under 21 U.S.C. § 841(b)(1) because he had two prior
felony convictions for possession with intent to distribute cocaine, both in the Superior Court of
Fulton County, Georgia, on April 3, 1997, in case number Z76739 and on January 9, 1998 in
case number Z90942. Id. at R. 42.
On May 10, 2006, Johnson signed a written plea agreement in which he agreed to plead
guilty to three of the counts in exchange for the dismissal of the remaining three. Id. at R. 72-1.
The agreement specified that as a result of his guilty plea, he faced a minimum ten-year prison
term with a maximum of life in prison. The government expressly agreed “that it will give
formal notice that the defendant has only one prior conviction for a felony drug offense under 21
U.S.C. § 851.” Nonetheless, Johnson agreed that:
6. … Notwithstanding the notice of prior conviction the government will provide
under 21 U.S.C. § 851, the defendant understands, agrees, and admits that he,
in fact, has previously been convicted of at least two felony drug offenses as
listed in the presentence report. In addition, the defendant agrees that at no
time will he either challenge or collaterally attack the validity of any of the prior
drug felony convictions appearing in the presentence report or any prior drug
felony conviction that serves as the basis for the sentencing enhancement under
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21 U.S.C. § 851 in this case. Furthermore, the defendant fully understands and
acknowledges that the government’s promise and agreement to give notice of
only one felony drug conviction under 21 U.S.C. § 851 constitutes consideration
for the defendants promise and agreement to enter into a knowing, voluntary, and
intelligent plea of guilty according to the terms of this plea agreement, and for the
defendant’s promise and agreement not to challenge or collaterally attack any
prior felony drug convictions listed in the presentence report or which serve as the
basis for the sentence enhancement under 21 U.S.C. § 851 in this case.
Id. at R. 72-1, pp. 3-4 (emphasis added). In addition to his waiver of the right to collaterally
attack his underlying state convictions, Johnson separately waived his right to collaterally attack
his soon-to-be imposed federal sentence:
17. To the maximum extent permitted by federal law, the defendant voluntarily
and expressly waives the right to appeal his sentence and the right to collaterally
attack his sentence in any post-conviction proceeding on any ground, except that
the defendant may file a direct appeal of an upward departure from the otherwise
applicable sentencing guideline range.
Id. at R. 72-1, p. 7.
Consistent with its obligations under the plea agreement, on October 25, 2006, the
government moved for a downward departure in sentencing in light of Johnson’s cooperation,
resulting in a guidelines range of 235-293 months. [R. 80] On November 1, 2006, the Court
sentenced Johnson to a cumulative 248-month term of incarceration, at the lower end of the
guideline range. [R. 82]
Johnson subsequently filed a timely motion to vacate his sentence pursuant to 28 U.S.C.
§ 2255, which was denied in light of his waiver of the right to collaterally attack his sentence.
[R. 91, 103] Johnson filed a series of motions before the trial court and the Eighth Circuit Court
of Appeals seeking relief from his sentence, without success.
II
In his present petition, Johnson contends that his presentence investigation report:
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… calculates him to be a career offender based on two previous prior felony
convictions pursuant to U.S.S.G. § 4B1.1. One of these convictions, however, a
1998 conviction in the Superior Court of Fulton County, Georgia, Criminal
Action 290942, should not have counted as a predicate offense.
[R. 1, pp. 1-2] Johnson contends that this 1998 conviction should not count as a predicate
offense to qualify him for the career offender enhancement because four years of his five-year
sentence for that state crime were suspended, with the remaining one year “commuted” to time
served. Id. at p. 2. A September 8, 2014, letter from the United States Probation Office in
Atlanta, Georgia, indicates that this state drug trafficking conviction “resulted in a two-point
assessment since it was for a ‘prior sentence of at least sixty days’ [See § 4A1.1(b)].” In
addition, this state offense qualified as a predicate offense for purposes of § 4B1.1 because it was
“punishable by imprisonment for a term exceeding one year,” even if Johnson actually served no
portion of the five-year prison term imposed. [R. 1-3, pp. 2-3]
The Court must deny Johnson’s petition for several reasons.
First, Johnson’s claim is based upon a false factual premise: while Johnson expressly
admitted that he had two valid predicate offenses and therefore was subject to the career offender
enhancement of U.S.S.G. § 4B1.1, pursuant to Paragraph Six of his written plea agreement that
enhancement was never actually applied when determining his sentence.
United States v.
Johnson, No. 1:05-CR-194-ODE-CSC-1 (N.D. Ga. 2005) [R. 72-1, pp. 3-4 therein]. Instead,
Johnson’s single 1998 Fulton County conviction was used to apply a two-point enhancement
pursuant to U.S.S.G. § 4A1.1(b). [R. 1-3, pp. 2-3]
Of course, while § 4B1.1’s career offender enhancement was not applied, § 4A1.1’s twopoint enhancement could have increased Johnson’s guideline range and increased his resulting
sentence. But his petition must fail for a second reason: in his plea agreement, Johnson expressly
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admitted that he had been convicted of two “felony drug offenses,” under 21 U.S.C. § 851, a
binding concession that his prior convictions were “punishable by imprisonment for more than
one year under any law of the United States or of a State or foreign country that prohibits or
restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or
stimulant substances.” 21 U.S.C. § 802(44). This admission, particularly when coupled with his
express waiver of the right to collaterally attack his federal sentence in Paragraph 17 of his plea
agreement, precludes him from asserting his claim in this proceeding. Such plea waivers are
enforceable in habeas proceedings under § 2241, and preclude the assertion of the very
arguments Johnson pursues here.
Solis-Caceres v. Sepanek, No. 13-21-HRW, 2013 WL
4017119, at *3 (E.D. Ky. Aug. 6, 2013) (collecting cases); Combs v. Hickey, No. 11-12-JMH,
2011 WL 65598 (E.D. Ky. Jan. 7, 2011); Peete v. United States, No. 11-cv-2242, 2013 WL
3199834, at *1-2 (C.D. Ill. June 24, 2013) (holding that Begay claim asserted in § 2241 petition
barred by plea agreement’s waiver of right to collaterally attack conviction); Gonzalez v. Warden
of MCC New York, No. 12-Civ. 6910, 2013 WL 144956 (S.D.N.Y. Jan. 14, 2013).
Even if Johnson could circumvent his express waiver of his right to collaterally attack his
sentence, his challenge to his sentence – as opposed to his conviction – is not cognizable in a
habeas corpus proceeding under § 2241. United States v. Peterman, 249 F.3d 458,462 (6th Cir.
2001) (vacating habeas relief where petitioners “do not argue innocence but instead challenge
their sentences.”); United States v. Poole, 531 F .3d 263, 267 n.7 (4th Cir. 2008) (federal courts
“ha[ve] ... not extended the reach of the savings clause to those petitioners challenging only their
sentence.”); Wyatt v. United States, 574 F.3d 455, 460 (7th Cir. 2009). This Court has applied
this rule to challenges to sentencing enhancements, an approach approved by the Sixth Circuit.
Brown v. Hogsten, 503 F. App’x 342, 343 (6th Cir. 2012) (affirming denial of § 2241 petition
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challenging ACCA enhancement on ground that prior conviction for burglary did not constitute
a “violent felony” under Begay because “it is a sentencing-error case, and claims of sentencing
error may not serve as the basis for an actual innocence claim.”). See also Contreras v. Holland,
487 F. App’x 287, 288 (6th Cir. 2012) (“The duration of Contreras’s sentence is not the proper
subject of a petition for habeas corpus relief under section 2241.”) (citing Capaldi v. Pontesso,
135 F.3d 1122, 1123 (6th Cir. 1998)); Jones v. Castillo, 489 F. App’x 864, 866 (6th Cir. 2012)
(“Claims alleging ‘actual innocence’ of a sentencing enhancement cannot be raised under §
2241.”) (citing Raymer v. Barron, 82 F. App’x 431 (6th Cir. 2003)). The Court must therefore
deny Johnson’s petition as both substantively meritless and procedurally improper.
Accordingly, IT IS ORDERED that:
1.
Johnson’s petition for a writ of habeas corpus [R. 1] is DENIED.
2.
The Court will enter a judgment contemporaneously with this order.
3.
This matter is STRICKEN from the docket.
Dated February 13, 2015.
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