Harris v. Quintana
MEMORANDUM OPINION & ORDER: 1) 1 Petition for writ of habeas corpus is DENIED. 2) Corresponding Judgment will be entered this date. 3) Matter is DISMSISED and STRICKEN from the docket. Signed by Judge Danny C. Reeves on 8/21/2017.(SCD)cc: Pro Se Petitioner via US Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SHANNON KEITH HARRIS,
FRANCISCO QUINTANA, Warden,
Civil Action No. 5: 16-441-DCR
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Inmate Shannon Keith Harris has filed a pro se petition for a writ of habeas corpus.
[Record No. 1] Harris contends that several prior offenses should not have been used to
enhance his federal sentence because they did not qualify as “drug trafficking offenses” under
the United States Sentencing Guidelines and should have counted as only one prior offense.
The Court now conducts an initial screening of Harris’s petition. 28 U.S.C. § 2243; Alexander
v. Northern Bureau of Prisons, 419 F. App’x 544, 545 (6th Cir. 2011). Because Harris’s claims
cannot be asserted in a petition under 28 U.S.C. § 2241, and because they are substantively
meritless, the requested relief will be denied.
On April 11, 2007, a federal jury in Galveston, Texas, found Harris guilty of being a
felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1); possessing a firearm in
furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c); possessing fifty or
more grams of cocaine base with intent to distribute it in violation of 21 U.S.C. § 841(a)(1);
and of conspiring to possess fifty or more grams of cocaine base with intent to distribute it in
violation of 21 U.S.C. § 846. The trial court sentenced Harris on January 31, 2008, to a 120month term of incarceration on the felon-in-possession charge and to a consecutive 60-month
term of incarceration for possessing a firearm in furtherance of a drug trafficking crime.
Harris was subject to 360 months to life imprisonment for both drug trafficking
convictions under the United States Sentencing Guidelines even without application of any
sentencing enhancements. However, Harris had 19 prior convictions for offenses involving
theft, violence, drug trafficking and robbery. Because at least two of these convictions
constituted “felony drug offenses” as that term is defined in 21 U.S.C. § 802(44), Harris was
subject to a mandatory life term of imprisonment under 21 U.S.C. § 841(b)(1)(A). The trial
court imposed a life sentence on both drug trafficking convictions and ran them concurrently
with his other terms of incarceration. United States v. Harris, No. 3:03-cr-14-1 (S.D. Tex.
The Fifth Circuit affirmed Harris’s conviction and sentence on direct appeal. United
States v. Harris, 566 F.3d 422 (5th Cir. 2009). In 2011, the trial court denied Harris’s two
motions for relief from his conviction and sentence filed under 28 U.S.C. § 2255. Harris v.
United States, No. 3:11-cv-280 (S.D. Tex. 2011). This Court has denied Harris relief from his
convictions pursuant to § 2241 twice before. Harris v. Holland, No. 6: 13-73-DLB (E.D. Ky.
2013); Harris v. Holland, No. 6: 13-223-DCR (E.D. Ky. 2013).
Harris argues in his current petition that the enhancement of his drug trafficking
sentence was improper in light of Descamps v. United States, __ U.S. __, 133 S. Ct. 2276
(2013), which according to the Sixth Circuit’s recent decision in Hill v. Masters, 836 F. 3d 591
(6th Cir. 2016), is retroactively applicable to cases on collateral review. Harris also invokes
Mathis v. United States, __ U.S. __, 136 S. Ct. 2243 (2016), and relies on the Fifth Circuit’s
conclusion in United States v. Hinkle, 832 F.3d 569, 575-76 (5th Cir. 2016), that Texas Health
& Safety Code § 481.112(a) (i.e., the statute that criminalizes delivery of a controlled
substance and under which Harris was at least twice convicted) is an indivisible statute
defining only a single offense. [Record No. 1 at 3-4, 6-7]
Harris separately contends that three of his prior offenses should have been treated as
“related” under U.S.S.G. § 4A1.2(a)(2) and count as one for purposes of enhancement because
the sentences were imposed on the same day and ordered to run concurrently with one another.
Id. at 8-11. He further argues that his convictions for delivery of a controlled substance did
not constitute “drug trafficking offenses” as defined by the United States Sentencing
Guidelines because the Texas criminal statute includes an “offer to sell” as a form of delivery.
[Record No. 1 at 9-10]
Finally, Harris makes a variety of additional, conclusory arguments, including that: (1)
application of the 2005 amendment to U.S.S.G. § 2L1.2 would violate the Ex Post Facto
Clause; (2) his Texas conviction for third-degree burglary derived from an unconstitutionallyvague statute in light of Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015); and (3)
his Texas conviction for possession of a controlled substance did not qualify as a “drug
trafficking offense” under U.S.S.G. §§ 2L1.2 or 4B1.2. [Record No. 1 at 10-12] As explained
misunderstanding of both the prior state convictions used to enhance his sentence and the
applicable federal provisions.
As the Court noted in addressing Harris’s last petition, the current petition is subject to
rejection as an abuse of the writ because his claims could and should have been asserted in a
prior habeas proceeding. McClesky v. Zant, 499 U.S. 467, 480-84 (1991); Schlup v. Delo, 513
U.S. 298, 318 n. 34 (1995) (“An ‘abusive petition’ occurs ‘where a prisoner files a petition
raising grounds that were available but not relied upon in a prior petition, or engages in other
conduct that disentitle[s] him to the relief he seeks.’”); Rosales-Garcia v. Holland, 322 F.3d
386, 398-99 (6th Cir. 2003). Indeed, a number of his claims were rejected by the trial court
when it denied his initial § 2255 motion.
Harris’s claim that several of his prior offenses were “related” under § 4A1.2(a)(2) and,
therefore, should have been counted as only one prior offense is a claim of ordinary trial error
that could have been asserted on direct appeal. Thus, it is not a claim he may pursue under
§ 2241. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir.2003); Goudelock v. Quintana,
No. 5:13-423-DCR, 2014 WL 6577946, at *1-2 (E.D. Ky. Feb. 19, 2014) (citing Hernandez v.
Lamanna, 16 F. App’x 317, 320 (6th Cir. 2001)). The claim is also meritless because the
offenses were committed on separate occasions and were punctuated by an intervening arrest.
[Record No. 1-1] In short, the convictions were properly counted as separate predicates.
U.S.S.G. § 4A1.2(a)(2) (“Prior sentences always are counted separately if the sentences were
imposed for offenses that were separated by an intervening arrest.”); United States v. Hill, 440
F. 3d 292, 297 (6th Cir. 2006); United States v. Brady, 988 F.2d 664, 670 (6th Cir. 1993) (en
Harris also argues that the Texas statute under which he was convicted for third-degree
burglary is unconstitutionally vague under Johnson. But Harris cannot challenge the validity
of his underlying predicate offenses in this § 2241 proceeding as he is no longer “in custody”
pursuant to those judgments. He may only do so –if at all - in a § 2254 proceeding, filed in
the proper venue, after exhausting his state court remedies. 28 U.S.C. §§ 2241(a), 2254(b).
Through his references to Descamps, Hill, Mathis, and Hinkle, Harris’s primary
argument is that he did not qualify as a career offender under U.S.S.G. § 4B1.1(a) because his
1997 conviction for third-degree armed robbery [Record No. 1-1 at 1] did not constitute a
“crime of violence” as defined in U.S.S.G. § 4B1.2(a), and because neither his conviction for
first-degree delivery of a controlled substance nor his conviction for second-degree possession
of a controlled substance [Record No. 1-1 at 2-3] were for “controlled substance offenses” as
defined in U.S.S.G. § 4B1.2(b). [Record No. 1 at 1, 6, 8, 9-10, 11-13]
Harris may not pursue these 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). 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.”); Brown v. Hogsten,
503 F. App’x 342, 343 (6th Cir. 2012). There is a very narrow exception to that prohibition
which is available only to prisoners: (1) sentenced under the mandatory guidelines regime
before the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005); (2) who
can point to a retroactively-applicable Supreme Court decision handed down after the denial
of relief on direct appeal or under § 2255 which establishes that a previous conviction is not a
predicate offense to warrant a career-offender enhancement; and (3) who are foreclosed from
raising the claim through a second or successive petition under § 2255. Hill v. Masters, 836
F.3d 591, 599-600 (6th Cir. 2016).
Harris does not satisfy the first criterion because he was sentenced in 2008, long after
Booker was decided. In addition, neither Descamps nor Mathis can be used to invoke the
savings clause. Both decisions relate solely to the process by which a district court evaluates
prior offenses to determine if they qualify as predicates. They did not involve interpretation
of the substantive reach of a statute such that a defendant might find himself convicted of
conduct that the law does not criminalize. Bousley v. United States, 523 U.S. 614, 620-21
(1998) (citing Davis v. United States, 417 U.S. 333, 346 (1974)).
The petitioner’s claims are also substantively without merit. The authorities cited by
Harris are inapposite because his sentence was not enhanced under the career offender
provision of U.S.S.G. § 4B1.1. Instead, he was sentenced to a mandatory term of life
imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A) because he had previously committed two
or more “felony drug offenses” as defined in 21 U.S.C. § 802(44). Harris, 566 F.3d at 428.
Determining whether a predicate qualifies as a prior “drug trafficking offense” under § 4B1.1
may involve a complex assessment of whether the prior offense involved the manufacture,
importation, distribution, or possession with intent to do one of these things within the meaning
of § 4B1.2(b). Hinkle, 832 F. 3d at 572-73. However, assessing whether a predicate is a
“felony drug offense” under 21 U.S.C. § 802(44) is quite simple: the offense must be
punishable by more than one year in prison and the sentence imposed under any statute “that
prohibits or restricts conduct relating to” drugs. Harris’s convictions plainly satisfied both
requirements: he was sentenced to six years in prison for both of his drug-related crimes. The
more complex analysis set forth in Mathis and implemented in Hinkle is simply not relevant
to Harris’s circumstances.
But even if Hinkle did apply, it would not assist Harris. Applying Mathis, the Fifth
Circuit: (1) concluded that V.T.C.A. § 481.112(a) is an indivisible statute, hence precluding
resort to the modified categorical approach; and (2) stated, without explanation, that a
conviction under the statute cannot constitute a predicate offense because it criminalizes a
broader range of conduct than that described in § 4B1.2(b). Hinkle, 832 F. 3d at 574-76.
Essential to both conclusions was the fact that V.T.C.A. § 481.002(8) defines “delivery” of
drugs to include an “offer to sell” them. Id. at 572-73. But the “offer to sell” language was
added to V.T.C.A. § 481.002(8) in 1999, six years after Harris committed his offenses in 1993.
When he committed his crimes, V.T.C.A. § 481.002(8) stated only that “‘[d]elivery’ or ‘drug
transaction’ means the act of delivering.” Coupled with V.T.C.A. § 481.112(a)’s prohibition
against knowingly manufacturing, delivering, or possessing with intent to deliver a controlled
substance, Harris’s two 1993 drug offenses would have satisfied § 4B1.2(b) as well.
Harris’s petition fails to establish any basis for habeas relief. Accordingly, it is hereby
ORDERED as follows:
Harris’s petition for a writ of habeas corpus [Record No. 1] is DENIED.
A corresponding Judgment will be entered this date.
This matter is DISMISSED and STRICKEN from the docket.
This 21st day of August, 2017.
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