Pittman v. Quintana
Filing
6
MEMORANDUM OPINION AND ORDER: (1) Pittman's 2 Motion for Leave to Proceed in forma pauperis is DENIED. Payment of the five dollar filing fee must be made within 28 days. (2) Petitioner Pittman's 1 Petition for Writ of Habeas Corpus is DENIED. (3) This action is DISMISSED and STRICKEN from the Court's docket. (4) Judgment shall be entered contemporaneously with this Memorandum Opinion and Order. Signed by Judge Joseph M. Hood on November 22, 2016. (AWD) cc: Petitioner via US Mail,F
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
TRACY DEWAYNE PITTMAN,
)
)
)
)
)
)
)
)
)
Petitioner,
V.
FRANCISCO QUINTANA, Warden,
Respondent.
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Civil No. 16-424-JMH
MEMORANDUM OPINION
AND ORDER
****
****
Inmate Tracy DeWayne Pittman is confined at the Federal
Medical Center in Lexington, Kentucky.
Proceeding without an
attorney, Pittman has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241.
[R. 1]
Pittman has also filed a motion to proceed in forma pauperis.
[R. 2]
However, the financial information provided by Pittman
indicates that an average of more than $300.00 has been deposited
into his inmate account each month over the last six months [R.
3], and Pittman has already filed a request with prison staff to
arrange to pay the five dollar filing fee out of funds in his
inmate account.
[R. 4]
The Court will therefore deny his motion
to proceed in forma pauperis.
Pittman must therefore ensure that
the five dollar filing fee is paid to the Court within twentyeight days.
1
The
Court
petitions.
conducts
an
initial
review
of
habeas
corpus
28 U.S.C. § 2243; Alexander v. Northern Bureau of
Prisons, 419 F. App’x 544, 545 (6th Cir. 2011).
A petition will
be denied “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
Pittman’s
petition
under
a
more
standard because he is not represented by an attorney.
v.
Pardus,
proceedings,
551
U.S.
the
89,
Court
94
(2007).
accepts
the
At
this
lenient
Erickson
stage
petitioner’s
of
the
factual
allegations as true and construes all legal claims in his favor.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
In November 2010, a federal grand jury in Knoxville, Tennessee
issued
an
indictment
charging
Pittman
with
two
counts
of
distributing crack cocaine in amounts totaling more than fifty
grams.
The government filed a notice pursuant to 21 U.S.C. § 851
in February 2011 indicating that Pittman potentially faced a longer
prison sentence for the offenses charged because of felonies he
had committed previously.
One month later Pittman signed a written plea agreement to
plead guilty to the second, more serious, count in exchange for
the dismissal of the first count.
2
As part of that agreement,
Pittman expressly and voluntarily “waive[d] [his] right to file
any motions or pleadings pursuant to 28 U.S.C. § 2255 or to
collaterally attack [his] conviction(s) and/or resulting sentence”
except
in
cases
“of
ineffective
assistance
of
counsel
or
prosecutorial misconduct not known to [Petitioner] by the time of
the entry of judgment.”
Because of his status as a career offender under § 4B1.1 of
the Sentencing Guidelines and the § 851 enhancement, Pittman faced
a statutory mandatory minimum of life imprisonment.
government
moved
for
a
downward
departure
in
However, the
light
of
his
substantial assistance, and on March 12, 2012, the trial court
sentenced Pittman to a 228-month term of incarceration.
Pittman
did not appeal.
On May 10, 2013, Pittman filed a pro se motion to vacate his
sentence
pursuant
to
28
U.S.C.
§
2255
on
numerous
grounds,
including the Supreme Court’s determination in Dorsey v. United
States, __ U.S. __, 132 S. Ct. 2321 (2012) that the provisions of
the Fair Sentencing Act are retroactively applicable to defendants
sentenced after the effective date of the Act.
While that motion
remained pending, Pittman filed a motion to reduce his sentence
pursuant to 18 U.S.C. § 3582(c).
Following the appointment of counsel for Pittman and further
briefing, on June 2, 2016, the trial court granted relief under
3
the FSA and Dorsey and reduced Pittman’s sentence to 168 months
imprisonment, denied his remaining claims for relief under § 2255
as untimely, and denied his § 3582(c) motion because “by granting
Petitioner’s Dorsey claim, the Court has afforded the same relief
...”
In October 2016, Pittman filed another § 3582(c) motion
seeking a further reduction in his sentence, which remains pending.
United States v. Pittman, No. 3: 10-CR-154-TAV-HBG-2 (E.D. Tenn.
2010) [R. 1, 24, 27, 51, 54, 59, 72, 74 therein].
Broadly construing the habeas corpus petition Pittman filed
in this Court, he implies that application of the § 4B1.1(a) career
offender enhancement to his sentence was improper because Tenn.
Code 39-17-417(4)(b)(1),1 the statute defining the offense of
possession of a controlled substance with intent to distribute and
under
which
Pittman
was
twice
convicted,
statute” defining only a single offense.
is
an
“indivisible
Therefore, his arguments
suggest, it would have been inappropriate for the trial court to
use the “modified categorical approach” or refer to any materials
beyond the state indictment and judgment.
Pittman cites Descamps
v. United States, __ U.S. __, 133 S. Ct. 2276 (2013), United States
v. Mathis, 786 F. 3d 1068 (2015), and Hill v. Masters, 836 F. 3d
1
The statute referred to by Pittman does not exist; the Court
assumes Pittman is referring to T.C.A. § 39-17-417(a)(4), which
makes it an offense to “[p]ossess a controlled substance with
intent to manufacture, deliver or sell the controlled substance.”
4
591 (6th Cir. 2016) in support of his argument.
[R. 1 at 2, 8-
10; R. 1-1]
Having thoroughly reviewed the petition and the arguments
offered in support of it, the Court must deny relief for several
reasons.
First, the waiver provision Pittman signed in his plea
agreement bars him from collaterally attacking his conviction or
sentence.
In that agreement, Pittman expressly and unequivocally
waived his right to appeal or collaterally attack his conviction
or sentence save upon grounds of ineffective assistance of counsel
or
prosecutorial
misconduct,
neither
of
which
applies
here.
Because a defendant is bound by the terms of his plea agreement,
a waiver of appellate rights is generally enforceable, Short v.
United States, 471 F.3d 686 (6th Cir. 2006).
Such waivers are
enforceable in habeas proceedings under § 2241, and preclude the
assertion of the very arguments Pittman pursues here.
Solis-
Caceres v. Sepanek, No. 13-21-HRW, 2013 WL 4017119, at *3 (E.D.
Ky. Aug. 6, 2013) (collecting cases); Mabry v. Shartel, No. 122637,
2015 WL 7273817, at *1 (3d Cir. Nov. 18, 2015); 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
5
attack conviction); Gonzalez v. Warden of MCC New York, No. 12Civ. 6910, 2013 WL 144956 (S.D.N.Y. Jan. 14, 2013).
Nor
is
the
remedy
available
under
§
2255
considered
“inadequate or ineffective” where the petitioner waived his right
to seek relief under that provision as part of a plea agreement.
Muse v. Daniels, 2016 WL 1163836, at *1 (7th Cir. Feb. 24, 2016)
(holding that a collateral attack waiver “would apply equally in
a proceeding under § 2241, had not § 2255(e) taken precedence, for
§ 2241 is a form of collateral attack.”); Muller v. Sauers, 523 F.
App’x 110, 112 (3d Cir. 2013) (waiver of collateral-attack rights
“in any post-conviction proceeding, including-but not limited toany proceeding under 28 U.S.C. § 2255” foreclosed relief under §
2241); Johnson v. Warden, 551 F. App’x 489, 491 (11th Cir. 2013);
Rivera v. Warden, FCI, Elkton, 27 F. App’x 511, 515 (6th Cir.
2001); United States v. Chavez-Salais, 337 F.3d 1170, 1172 (10th
Cir. 2003) (“The conventional understanding of ‘collateral attack’
comprises challenges brought under, for example, 28 U.S.C. § 2241,
28 U.S.C. § 2254, 28 U.S.C. § 2255, as well as writs of coram
nobis.”)
Second, Pittman may not pursue his claims in this proceeding
because
his
challenge
to
his
sentence,
as
opposed
to
his
conviction, does not fall within the reach of the savings clause
found in 28 U.S.C. § 2255(e).
United States v. Peterman, 249 F.3d
6
458,462 (6th Cir. 2001) (vacating habeas relief where petitioners
“do not argue innocence but instead challenge their sentences.
Courts have generally declined to collaterally review sentences
that fall within the statutory maximum.”).
This rule precludes
resort to § 2241 to challenge career offender enhancements.
Cf.
Hayes v. Holland, 473 F. App’x 501, 502 (6th Cir. 2012) (“Hayes
does not assert that he is actually innocent of his federal
offenses. Rather, he claims actual innocence of the career offender
enhancement. The savings clause of section 2255(e) does not apply
to sentencing claims.”); Brown v. Hogsten, 503 F. App’x 342, 343
(6th Cir. 2012) (affirming denial of § 2241 petition 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 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).
This Court has therefore rejected claims brought by § 2241
petitioners alleging that the sentencing court improperly enhanced
their federal convictions based upon prior state convictions, and
the
Sixth
Circuit
has
consistently
approved
this
approach.
Thornton v. Ives, No. 6:11-CV-35-GFVT, 2011 WL 4586917, at *3 (E.D.
Ky. Sept. 29, 2011), aff’d, No. 12-5051 (6th Cir. Sept. 11, 2012)
7
(stating that allegations of sentencing errors do not qualify as
claims of actual innocence under the savings clause); Johnson v.
Cauley, No. 09-52-HRW (E.D. Ky. 2009), aff’d, No. 09-5991 (6th
Cir. July 9, 2010) (claim that sentencing court improperly enhanced
conviction based upon prior state conviction is not cognizable
under Section 2241).
Nothing in the Sixth Circuit’s decision in Hill undermines
this conclusion with respect to petitioners who, like Pittman,
were sentenced under the Sentencing Guidelines long after the
Supreme Court’s decision in United States v. Booker, 543 U.S. 220
(2005) rendered those guidelines advisory rather than mandatory.
Hill, 836 F. 3d at 599-600 (“... we reiterate that our decision
addresses only a narrow subset of § 2241 petitions: (1) prisoners
who were sentenced under the mandatory guidelines regime pre[Booker] ...”).
The Court notes parenthetically that even if Pittman could
bring his claim under § 2241, Descamps and Mathis do not assist
him. Both the “categorical approach” and the “modified categorical
approach”
used
constitutes
offender
a
to
valid
enhancement
determine
whether
predicate
are
for
based
a
prior
application
upon
Supreme
state
of
Court
decided well before Pittman’s conviction became final.
offense
the
career
precedent
See Taylor
v. United States, 495 U.S. 575 (1990), Shepard v. United States,
8
544 U.S. 13 (2005).
modified
Descamps only clarified that resort to the
categorical
underlying
statute.
state
approach
conviction
is
was
not
appropriate
pursuant
to
an
where
the
indivisible
Descamps, 133 S. Ct. at 2284-86.
While
Pittman
contends
that
T.C.A.
§
39-17-417
is
an
indivisible statute, the Sixth Circuit had held that “we have
always
treated
a
violation
of
§
39–17–417
as
a
categorical
controlled substance offense ...,” United States v. Douglas, 563
F. App’x 371, 377 (6th Cir. 2014), warranting application of the
career offender enhancement.
Mathis, decided two years after
Douglas, does not suggest a different outcome.
The Tennessee
Statute under which Pittman was twice convicted criminalizes four
distinct species of drug offenses, separately criminalizing the
manufacture,
delivery,
sale,
and
distribute a controlled substance.
The
statute
separately
possession
with
intent
to
T.C.A. § 39-17-417(a)(1)-(4).
establishes
a
myriad
of
punishments
dependent upon the quantity and type of the controlled substance
involved as well as which alternative means of violating the
statute is at issue.
T.C.A. § 39-17-417(b)-(n).
alternatives
different
carry
punishments,
...
Where “statutory
they
must
be
elements,” and utilization of the modified categorical approach is
permissible and appropriate.
Mathis, 136 S. Ct. at 2249, 2256
(citing Apprendi v. New Jersey, 530 U.S. 466 (2000)).
9
Accordingly, IT IS ORDERED that:
1.
Pittman’s motion to proceed in forma pauperis [R. 2] is
DENIED.
Payment of the five dollar filing fee must be made within
twenty-eight days.
2.
Petitioner
Pittman’s
petition
for
a
writ
of
habeas
corpus pursuant to 28 U.S.C. § 2241 [R. 1] is DENIED.
3.
This action is DISMISSED and STRICKEN from the Court’s
docket.
4.
Judgment shall be entered contemporaneously with this
Memorandum Opinion and Order.
This the 22nd day of November, 2016.
10
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