Blackwell v. Quintana
Filing
32
MEMORANDUM OPINION & ORDER: (1) DENYING Blackwell's 1 Petition for a writ of habeas corpus; (2) DENYING AS MOOT Blackwell's 24 26 28 MOTIONS for Judgment; (3) the court will enter a judgment; (4) matter is DISMISSED & STRICKEN from the docket. Signed by Judge Joseph M. Hood on 1/18/18.(KJR)cc: COR, Blackwell (US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
JEFFREY T. BLACKWELL,
)
)
)
)
)
)
)
)
)
Petitioner,
V.
FRANCISCO QUINTANA, Warden,
Respondent.
***
***
Civil No. 5: 17-60-JMH
MEMORANDUM OPINION
& ORDER
***
***
Petitioner Jeffrey T. Blackwell has filed a pro se petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 to
challenge the enhancement of his federal sentence.
Although
this
Court
originally
dismissed
his
§
[R. 1].
2241
habeas
petition, the Sixth Circuit reversed, concluding that Blackwell’s
claim under Descamps v. United States, __ U.S. __, 133 S. Ct. 2276
(2013) was cognizable in a § 2241 petition, and remanded the case
back to this Court for consideration of the merits of Blackwell’s
petition.
[D.E. 15].
I.
In December 1997, Blackwell was convicted in the United States
District Court for the Eastern District of Missouri for possessing
with
intent
to
distribute
50
or
more
grams
of
a
substance
containing crack cocaine (cocaine base) and being a felon in
possession of a firearm.
The district court determined that
Blackwell was a career-offender under U.S.S.G. § 4B1.1 based on
his
prior
convictions
in
Missouri
for
sale
of
a
controlled
substance and second-degree burglary and sentenced him to an
aggregate term of 295 months of imprisonment.
The Eighth Circuit
Court of Appeals affirmed Blackwell’s convictions and sentence.
United States v. Blackwell, 4:97-cr-116-CAS-1 (E.D. Mo. 1997).
II.
In his petition, Blackwell claims that he is entitled to
relief
from
conviction
his
for
career-offender
second-degree
sentence
burglary
in
because
his
Missouri
no
prior
longer
qualifies as a “crime of violence” pursuant to Descamps and Mathis
v. United States, __ U. S. __, 136 S.Ct. 2243 (2016), because the
Missouri burglary statute criminalizes a more broad range of
conduct than generic burglary.
Thus, according to Blackwell, his
second-degree burglary conviction does not qualify as a valid
predicate felony for a career-offender enhancement.
In Descamps, the Supreme Court explained that, when a court
is determining whether a prior conviction qualifies as a valid
predicate offense under the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e)(1),1 it must generally analyze the statute of
1“The
same approach is used to determine whether a crime
constitutes a ‘crime of violence’ for a career-offender
enhancement under the sentencing guidelines or a ‘violent felony’
under the ACCA.” Hill v. Masters, 836 F.3d 591, 595 n. 3 (6th
Cir. 2016)(citing United States v. Covington, 738 F.3d 759, 762–
63 (6th Cir. 2014)).
2
conviction by using the “categorical approach” and examining only
the elements of the statute which define the offense and then
comparing
offense.
them
with
the
elements
Descamps, 133 S. Ct. at 2281.
of
the
“generic”
It further held that
resort to the “modified categorical approach” is permitted, but
only where the underlying statute is divisible because it permits
conviction in alternative circumstances, one of which falls within
the “generic” offense and one of which does not.
Only where such
circumstances exist is it necessary to refer to other documents in
the defendant’s underlying trial, such as the indictment or jury
instructions, to determine whether the defendant was convicted of
conduct that falls within the “generic” offense, and thus qualifies
as a valid predicate under § 924(e).
Id. at 2281, 2284-86.
In Mathis, the Supreme Court reiterated that a statute is
considered “divisible,” therefore permitting use of the modified
categorical approach, only when it contains alternative elements
(hence defining multiple offenses), not when it merely contains
alternative factual means of committing a single offense.
136 S. Ct. at 2249, 2251-52.
Mathis,
In Mathis, the Supreme Court applied
this approach to Iowa’s burglary statute and held that the statute
listed alternative means (not elements) and, therefore, was not
divisible, covered more conduct than generic burglary, and could
not be a predicate offense for an ACCA sentencing enhancement.
Id. at 2250-51.
3
First, to the extent that Blackwell relies on Mathis, for a
claim
based
upon
a
recently-issued
Supreme
Court
decision
interpreting a statute to be cognizable in a § 2241 petition, the
new interpretation announced in the decision must be retroactively
applicable to cases on collateral review.
F.3d 303, 307-08 (6th Cir. 2012).
Wooten v. Cauley, 677
For retroactivity purposes, “a
case announces a new rule if the result was not dictated by
precedent existing at the time the defendant’s conviction became
final.”
Teague v. Lane, 489 U.S. 288, 301 (1989)(citations
omitted)(emphasis
in
original).
Adherence
to
this
rule
is
particularly important in habeas cases as “[h]abeas corpus always
has been a collateral remedy, providing an avenue for upsetting
judgments that have become otherwise final.
a substitute for direct review.”
United
States,
401
U.S.
667,
It is not designed as
Id. at 306 (quoting Mackey v.
682
(1971)(Harlan,
J.,
opinion
concurring in judgments in part and dissenting in part)(emphasis
in original).
The Supreme Court in Mathis made abundantly clear that its
holding was required by decades-old precedent and hence did not
announce any new rule, Mathis, 136 S. Ct. at 2257, and the Sixth
Circuit has expressly so held.
In re: Conzelmann, 872 F.3d 375,
376-77 (6th Cir. 2017) (holding that the Supreme Court’s holding
in Mathis was not new, as it “was dictated by prior precedent
(indeed
two
decades
worth),”
nor
4
has
Mathis
been
declared
retroactive by the Supreme Court).2
Therefore, as the Sixth
Circuit has made clear that Mathis did not announce a new rule,
nor has it been held to be retroactive by the Supreme Court, a
petitioner proceeding under § 2241 may not rely on Mathis as
grounds for relief from his or her sentence.
Regardless, in light of the directive issued in this case by
the Sixth Circuit, and for the sake of closure, the Court turns to
an examination of whether Blackwell’s conviction of second-degree
burglary in Missouri qualifies as a valid predicate offense for
purposes of the career-offender enhancement of the sentencing
guidelines.
Under Missouri law, “[a] person commits the crime of
burglary in the second degree when he knowingly enters unlawfully
or knowingly remains unlawfully in a building or inhabitable
structure for the purpose of committing a crime therein.”
Rev.
Stat.
§
569.170.1.
Missouri
law
defines
Mo.
“inhabitable
structure” to include “a ship, trailer, sleeping car, airplane, or
other vehicle or structure.”
On
appeal,
the
Sixth
Mo. Rev. Stat. § 569.010(2).
Circuit
concluded
that
Blackwell
satisfied the third requirement of Hill v. Masters, 836 F.3d 591,
599-600 (6th Cir. 2016), that there was a subsequent change in
statutory interpretation showing that his second-degree burglary
2The
Sixth Circuit’s published decision in Conzelmann was issued
on September 20, 2017, which is after the Sixth Circuit’s decision
was issued in this case.
5
conviction may no longer be a predicate crime of violence, because
he may be entitled to relief under United States v. Bess, 655 F.
App’x 518 (8th Cir. 2016).
[R. 15 at p. 3].
In Bess, an unpublished opinion, the Eighth Circuit examined
whether a defendant’s convictions for second-degree burglary in
Missouri qualified as violent felonies for purposes of the ACCA
enhancement of 18 U.S.C. § 924(e).
Bess, 655 F. App’x at 519.
The Eighth Circuit recognized that the resolution of this issue
turned on whether the statute is divisible and the modified
categorical approach is available, which, in turn, depends on
“whether the alternative phrases in Missouri’s burglary statute –
‘building’ and ‘inhabitable structure’ – are elements or means.”
Id. at 520.
The Eighth Circuit did not decide this question on
appeal, but instead remanded the case to the district court to
determine whether Missouri’s second-degree burglary statute lists
alternative elements or alternative means of committing the crime
of burglary.
However,
Circuit’s
Id.
after
ruling
in
Bess
was
decided
this
case),
the
(and
Eighth
before
the
Circuit
Sixth
directly
addressed whether second-degree burglary convictions qualify as
violent felonies for purposes of Section 924(e) in light of Mathis,
this time in a published opinion.
F.3d 712 (2016).
Missouri
In Sykes, the Eighth Circuit found that the
second-degree
burglary
6
United States v. Sykes, 844
statute
provided
alternative
elements
for
committing
the
crime
and,
under
the
modified
categorical approach, a conviction of second-degree burglary of a
building
in
Missouri
fits
within
the
generic
definition
of
“burglary” for purposes of the ACCA and constitutes a violent
felony under § 924(e).
See also United States v. Phillips, 853
F.3d 432 (8th Cir. 2017).
Thus, the task now before the Court is to determine whether
Blackwell’s prior second-degree burglary conviction qualifies as
burglary of a “building.”
In doing so, the Court may look to “a
limited class of documents (for example, the indictment, jury
instructions, or plea agreement and colloquy) to determine what
crime, with what elements, a defendant was convicted of.”
Mathis,
136 U.S. at 2249.
The Court has now reviewed documents related to Blackwell’s
conviction submitted by both Blackwell and the United States
Attorney’s Office for the Eastern District of Missouri.
These
documents include the indictment, minutes and related records from
the
Circuit
Court
of
St.
Louis
County,
Missouri,
regarding
Blackwell’s second-degree burglary conviction, as well as a copy
of the Pre-Sentence Report prepared in Blackwell’s underlying
federal criminal case [R. 26-1, 29-1, 29-2].
An examination of these documents leads the Court to conclude
that
Blackwell
was
convicted
of
second-degree
burglary
of
a
“building” for purposes of the application of the career-offender
7
enhancement of the sentencing guidelines.
It is true that, as
Blackwell points out, the language of his indictment refers to an
“inhabitable structure.” [R. 26-1, 29-2]. However, the indictment
further refers to a physical street address (8232 #1 Watson,
Marlborough in St. Louis County, Missouri), describes the location
as “an inhabitable structure...possessed by Joseph Green,” and
specifies that Green was actually present at the time of the
burglary.
[R. 26-1, 29-2].
Consistent with this description,
Blackwell’s PSR states that, “[a]ccording to court records, on
December 25, 1986, the defendant unlawfully entered a home in order
to commit burglary.”
[R. 29-1 at p. 7].
This Court finds persuasive the government’s argument set
forth in Phillips that “the reference to a physical street address,
together
with
the
description
of
it
as
inhabitable,
clearly
demonstrates, on the face of the charging document alone, that
[the
defendant]
building.”
was
charged
with
unlawfully
entering
into
a
Phillips, 853 F.3d at 436 (remanding the case to the
district court for a determination of this issue). As in Phillips,
the indictment charging Blackwell refers to a physical street
address, describes the address as “inhabitable,” and states that
the location was owned and inhabited by Joseph Green, who was
present at the time of the burglary.
In addition, Blackwell’s PSR
indicates that the building was, in fact, Green’s home.
Based on
these factors, the Court finds that, as in Sykes, Blackwell’s prior
8
second-degree
burglary
conviction
qualifies
as
burglary
of
a
“building” which conforms to the elements of a generic burglary
promulgated in Taylor v. United States, 495 U.S. 575 (1990):
“(i)
unlawful entry or remaining in (ii) a building or structure (iii)
with the intent to commit a crime.”
Taylor, 495 U.S. at 598).
Sykes, 844 F.3d at 715 (citing
Accordingly, the Court finds that
Blackwell’s prior conviction of second-degree burglary is a “crime
of
violence”
and,
therefore,
a
valid
predicate
offense
for
enhancement of his sentence.
For all of these reasons, Blackwell’s petition for habeas
relief will be denied.
Accordingly, IT IS ORDERED that:
1.
Blackwell’s petition for a writ of habeas corpus [R. 1]
is DENIED.
2.
All
other
pending
requests
for
relief,
including
Blackwell’s motions for judgment [R. 24, 26, 28], are DENIED AS
MOOT.
3.
The Court will enter a judgment contemporaneously with
this order.
4.
This matter is DISMISSED and STRICKEN from the docket.
9
This 18th day of January 2018.
10
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