in re: Harold J. Thornton
Filing
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MEMORANDUM OPINION & ORDER: (1) Harold Thornton's motions for the appointment of counsel [R. 2 , 3 ] to represent him in this construed § 2241 habeas petition are DENIED. (2) Harold Thornton's request to transfer this action to the Middle District of Florida, Tampa Division, is DENIED. (3) Harold J. Thornton's construed 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus is DENIED; (4) This action will be DISMISSED, sua sponte, with prejudice from the docket; and, (5) Judgment shall be entered contemporaneously. Signed by Gregory F. VanTatenhove on 9/29/11.(SYD)cc: mailed to pro se filer
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION LONDON
HAROLD J. THORNTON,
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Petitioner,
V.
RICHARD IVES, Warden,
Civil No. 6:11-CV-035-GFVT
MEMORANDUM OPINION
AND
ORDER
Respondent.
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I.
While Harold J. Thornton (“Thornton”) was an inmate in the United States Penitentiary McCreary (“USP-McCreary”), in Pine Knot, Kentucky,1 he submitted pleadings to the Court that
the Clerk of the Court docketed as motions for the appointment of counsel [R. 2, 3] to represent
him in a habeas corpus petition, filed pursuant to 28 U.S.C. § 2241, challenging the enhancement
of his federal sentence. Although neither of Thornton’s motions for the appointment of counsel
was captioned as a § 2241 habeas corpus petition, and there is no habeas corpus petition
accompanying these motions, the Clerk of the Court has docketed Thornton’s motions and
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Thornton has since been transferred to the Allenwood Federal Prison Camp (“FPCAllenwood”) located in White Deer, Pennsylvania. Nevertheless, this Court’s jurisdiction over
this matter was established at the time Thornton filed the habeas petition and is not defeated by
Thornton’s subsequent transfer to another judicial district. McClure v. Hopper, 577 F.2d 938,
939-40 (5th Cir. 1978) (explaining that jurisdiction attaches upon the initial filing for habeas
corpus relief and is not destroyed upon the petitioner’s subsequent transfer or custodial change)
(citations omitted).
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supporting memorandum as a habeas corpus proceeding.2 By Order of August 24, 2011,
Thornton was granted leave to proceed in forma pauperis [R. 4].3
In this construed § 2241 habeas petition, Thornton challenges his sentence enhancement
under the Armed Career Criminal Act (“ACCA”), requests the appointment of counsel, and
requests that this action be transferred to the Middle District of Florida, Tampa Division
(hereafter “Trial Court”) so that he can be resentenced without the Career Offender
enhancement. For the reasons set forth below, Thornton is not entitled to relief under § 2241.
The Court denies his motions for the appointment of counsel, denies his request to transfer this
matter to the Middle District of Florida, and denies his petition. Therefore, the Court dismisses
this proceeding as well.
II.
On March 6, 1998, a petit jury in the United States District Court for the Middle District
of Florida, Tampa Division, found Thornton guilty of three counts of drug trafficking, violations
of 21 U.S.C. § 841A. See United States of America v. Harold Thornton, Case No. 8:97-cr-082RAL (“the 082 case”). Later, in a separate criminal case in the Middle District of Florida, United
States of America v. Harold Thornton, Case No. 8:97-cr-083-RAL (“the 083 case”), on May 6,
1998, a petit jury found Thornton guilty of (1) the unlawful transportation of firearms, in
violation of 18 U.S.C. § 922G; (2) importing explosive material, in violation of 18 U.S.C. §
2
Being a pro se petition, it is held to less stringent standards than those drafted by
attorneys. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972).
3
This matter is now before the Court for screening. 28 U.S.C. §2243; Demjanjuk v.
Petrovsky, 612 F. Supp. 571 (N.D. Ohio 1985) (citing Allen v. Perini, 424 F.2d 134, 141 (6th
Cir. 1970), cert. denied, 400 U.S. 906 (1970); accord Aubut v. State of Maine, 431 F.2d 688, 689
(1st Cir. 1970)).
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842A; (3) unlawfully receiving an unregistered firearm, in violation of 26 U.S.C. § 5861D; and
(4) possession of narcotics, in violation of 21 U.S.C. § 844A.
Thornton was sentenced in both cases on July 24, 1998. In the “082" case, Thornton
received a life sentence of imprisonment on each count of the indictment, with the life sentences
to run concurrently with one another. In the “083" case, Thornton received a life sentence of
imprisonment on Count 1s (the unlawful transportation of firearms offense), and concurrent,
120-month sentences on the remaining counts on which he was convicted. Thornton’s
conviction and sentence in each of these two cases were affirmed on appeal.
Subsequently, Thornton moved the Trial Court, pursuant to 28 U.S.C. § 2255, to vacate,
set aside, or correct the sentence. These motions were denied.
III.
Thornton appears to claim that the Trial Court improperly sentenced him under the
Armed Career Criminal Act (“ACCA”) and that based on newly discovered evidence, he is
actually innocent of his career offender sentencing enhancement. He asserts that the Trial Court
improperly sentenced him to life in prison for a non-existent enhancement, resulting in a
miscarriage of justice. He submits that he is entitled to proceed under the savings clause of 28
U.S.C. § 2255. As grounds for his claims, Thornton relies on Johnson v. United States, 130 S.Ct.
1265 (2010) and Gilbert v. United States, 609 F.3d 1159 (11th Cir. 2010), vacated, rehearing en
banc granted by 625 F.3d 716 (11th Cir. 2010), as the newly discovered evidence that supports
his claim.
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IV.
In analyzing this matter, the Court accessed the Public Electronic Access to Public
Records ("PACER") website, http://www.pacer.gov/4 and reviewed the docket sheets for
both of Thornton’s criminal convictions in the Trial Court. The Court was only able to
review the docket sheets themselves and was unable to access any of the documents filed
prior to November 1, 2004.5 Since Thornton’s conviction and sentencing pre-dates
November 1, 2004, this Court was unable to access the actual sentencing Order and
Judgment and/or the transcript of the sentencing hearing and was only able to review the
docket entry itself. Thus, it is unclear to this Court whether Thornton’s sentence was
enhanced to a life sentence under the ACCA, pursuant to 18 U.S.C. § 3559(c), or whether
his sentence was enhanced under Sentencing Guideline § 4B1.1 because he had two prior
drug convictions under 21 U.S.C. § 841(b)(1)(A).
Regardless, Thornton may not challenge his enhanced sentence in this § 2241
habeas proceeding. Such claims must be pursued by filing a post-conviction motion
under 28 U.S.C. § 2255 with the Trial Court. Capaldi v. Pontesso, 135 F.3d 1122, 112324 (6th Cir. 2003). A federal prisoner may file a habeas corpus petition under § 2241
only to challenge a decision by prison officials which affects the manner in which his
sentence is being carried out, such as the computation of sentence credits or parole
eligibility. United States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1999).
4
PACER compiles information about criminal and civil actions filed in all federal courts.
In the Middle District of Florida, remote access to documents filed in criminal cases
prior to November 1, 2004, is not available.
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The narrow “safety valve” provision found in § 2255(e) permits a prisoner to
challenge the legality of his conviction through a § 2241 petition when his remedy under
§ 2255 is “inadequate or ineffective” to test the legality of his detention. The Sixth
Circuit permits a prisoner to take advantage of this provision only where, after his
conviction has become final, the Supreme Court re-interprets the terms of the statute the
petitioner was convicted of having violated in such a way that petitioner’s actions did not
violate the statute. Martin v. Perez, 319 F.3d 799, 804 (6th Cir. 2003) (“A prisoner who
can show that an intervening change in the law establishes his actual innocence can
invoke the savings clause of § 2255 and proceed under § 2241.”). For two independent
reasons, however, that avenue is not available to Thornton in this case.
First, Thornton’s challenge to his sentence, as opposed to his conviction, does not
fall under the savings clause. 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. Courts have generally declined to collaterally review sentences
that fall within the statutory maximum.”); United States v. Poole, 531 F.3d 263, 267 n.7
(4th Cir. 2008) (holding that 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); Talbott v. Holencik, No. 08-619, 2009 WL
322107, at *6-7 (C.D. Cal. Feb. 5, 2009) (“Under the savings clause, however, Petitioner
must demonstrate that he is factually innocent of the crime for which he has been
convicted, not the sentence imposed.”).
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This Court has applied this rule to sentencing enhancements challenges, an
approach which the Sixth Circuit has approved. Cf. Johnson v. Cauley, No. 09-52-HRW
(E.D. Ky. 2009), aff’d, No. 09-5991 (6th Cir. July 9, 2010) (holding that claim that
sentencing court improperly enhanced sentence based upon prior state conviction is not
cognizable under § 2241).
Second, Thornton cites a recent decision by the Eleventh Circuit, Gilbert v. United
States, 609 F.3d 1159 (11th Cir. 2010), which held that a prisoner may challenge the use of
a prior conviction to enhance his sentence as a career offender through a habeas corpus
petition under § 2241. The Gilbert court held that “[f]or federal sentencing purposes, the
act of being a career offender is essentially a separate offense, with separate elements
(two felony convictions for violent felonies), which must be proved, for which separate
and additional punishment is provided,” id. at 1165, and concluded that a petitioner may
utilize § 2241 to assert that “he is innocent of the statutory ‘offence’ of being a career
offender.” Id. at 1166.
Gilbert does not assist Thornton because the Eleventh Circuit granted the
government’s petition for rehearing, vacated the original panel opinion, and heard the
case en banc. See Gilbert v. United States, 625 F.3d 716 (11th Cir. 2010). Following an
en banc hearing, on May 19, 2011, the Eleventh Circuit affirmed the district court’s denial of
Gilbert’s § 2241 petition and held that the savings clause contained in 28 U.S.C. § 2255(e) does
not permit a federal prisoner to challenge his sentence in a § 2241 petition when he cannot raise
that challenge in a § 2255 motion because of the §2255(h) bar against second and successive
motions, at least where the sentence the prisoner is challenging does not exceed the statutory
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maximum. Gilbert v. United States, 640 F.3d 1293 (11th Cir. 2011). Thus, the Eleventh
Circuit’s en banc decision in Gilbert provides no support for Thornton, and in fact, does just the
opposite. Consistent with Gilbert, Thornton’s claim may not be pursued in this habeas
proceeding pursuant to 28 U.S.C. § 2241.
Because Thornton has not shown that he is actually innocent of being a career
offender under either the ACCA or 21 U.S.C. § 841(b)(1)(A), or that a retroactively
applicable Supreme Court decision affords him relief, the savings clause of § 2255 does
not apply. Consequently, he has the option of filing a motion in the Trial Court for
permission to file a second or successive motion to vacate, alter, or amend sentence
pursuant to 28 U.S.C. § 2255. Thornton’s construed § 2241 petition will be denied, and
this action will be dismissed.
V.
Accordingly, the Court being advised, IT IS ORDERED as follows:
(1)
Harold Thornton’s motions for the appointment of counsel [R. 2, 3] to
represent him in this construed § 2241 habeas petition are DENIED.
(2)
Harold Thornton’s request to transfer this action to the Middle District of
Florida, Tampa Division, is DENIED.
(3)
Harold J. Thornton’s construed 28 U.S.C. § 2241 Petition for Writ of
Habeas Corpus is DENIED;
(4)
This action will be DISMISSED, sua sponte, with prejudice from the
docket; and,
(5) Judgment shall be entered contemporaneously with this Memorandum
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Opinion and Order in favor of the Respondent, Richard Ives, Warden at USP-McCreary.
This the 29th day of September, 2011.
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