Garcia-Valenzuela v. Butler

Filing 5

MEMORANDUM OPINION & ORDER: 1. Petitioner Omar Garcia-Valenzuela's § 2241 petition for a writ of habeas corpus [R. 1 ] is DENIED. 2. The Court will enter an appropriate Judgment; and 3. This habeas proceeding is DISMISSED and STRICKEN from the Court's docket. Signed by Judge Karen K. Caldwell on 07/14/2015.(KJA)cc: COR, mailed paper copy to pro se filer

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
OMAR GARCIA-VALENZUELA,

CIVIL ACTION NO. 6:15-CV-39-KKC

Petitioner,
V.

MEMORANDUM OPINION
AND ORDER

SANDRA BUTLER, Warden,
Respondent.

*** *** ***
Petitioner Omar Garcia-Valenzuela is an inmate confined by the Bureau of Prisons in
the Federal Correctional Institution-Manchester, located in Manchester, Kentucky. GarciaValenzuela has filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2241,
challenging the 20-year federal sentence which he is currently serving.

[R. 1]

Garcia-

Valenzuela has paid the $5.00 filing fee. [R. 3]
In conducting an initial review of habeas petitions under 28 U.S.C. § 2243, the Court
must deny the relief sought “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)).
Because Garcia-Valenzuela is not represented by an attorney, the Court evaluates his
petition under a more lenient standard. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton
v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). Thus, at this stage of the proceedings, the Court
accepts Garcia Valenzuela’s factual allegations as true and liberally construes his legal
claims in his favor.

The Court has reviewed Garcia-Valenzuela’s habeas petition, but concludes that because
the Supreme Court cases upon which Garcia-Valenzuela relies do not apply retroactively to
his case, and because Garcia-Valenzuela does not set forth a proper claim of actual
innocence, it cannot grant Garcia-Valenzuela relief from his current federal sentence. The
Court will therefore deny Garcia-Valenzuela’s § 2241 petition and dismiss this proceeding.
BACKGROUND
On December 13, 2010, Garcia-Valenzuela pled guilty in a Georgia federal court to
possessing with intent to distribute at least 500 grams of methamphetamine. United States
v. Omar Garcia-Velenzuela, No. 1:10-CR-431-RWS-LTW (N.D. Ga. Dec. 13, 2010). [R. 24,
therein]

The offense carried a minimum 10-year prison sentence.

See 21 U.S.C. §

841(b)(1)(A) (viii). Earlier in the case, however, the government had filed an Information
under 21 U.S.C. § 851, which increased the mandatory-minimum sentence from 10 to 20
years, based Garcia-Valenzuela’s prior 1997 conviction for trafficking in methamphetamine,
a felony under Georgia’s state law. [R. 23, therein] At the plea hearing, the district court
informed Garcia-Valenzuela about the 20-year minimum sentence based on his prior felony
drug offense conviction, and confirmed that Garcia-Valenzuela understood that the twentyyear sentence was “binding” on the district court. [R. 37 therein, at pp. 12-14]
On March 10, 2011, the district court sentenced Garcia-Valenzuela to a 240-month
(twenty-year) prison term, which, based on Garcia-Valenzuela’s prior state court conviction
for drug trafficking, was the mandatory minimum sentence.

[R. 29, therein]

Garcia-

Valenzuela appealed, but on July 19, 2011, the Eleventh Circuit Court of Appeals granted
the government’s motion for summary affirmance and affirmed the judgment of conviction.
[R. 42, therein]
On March 3, 2014, almost three years after the Eleventh Circuit affirmed his federal
drug conviction, Garcia-Valenzuela filed a motion in the district court o vacate his sentence
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under 28 U.S.C. § 2255, alleging that that the district court had improperly sentenced him
based on facts not found by a jury or admitted by him, with the relevant fact apparently
being his prior state court drug conviction.

[R. 44-1, therein] Garcia-Valenzuela argued

that Alleyne v. United States, ––– U.S. ––––, 133 S. Ct. 2151, 186 L.Ed.2d 314 (2013), newly
recognized the right underlying his argument, and that his § 2255 motion was timely
because he had filed it within one year of the date on which the Supreme Court decided
Alleyne. [Id.]
On March 17, 2014, the Magistrate Judge issued a Report and Recommendation (“R &
R”) concluding that both Garcia-Valenzuela’s § 2255 motion and a certificate of appealability
should be denied. [R. 45, therein] Garcia-Valenzuela filed objections to the R & R, but the
district court overruled them, adopted the R & R, and denied his § 2255 motion. [R. 50,
therein; see Garcia-Valenzuela v. United States, No. 1:14-CV-697; No. 1:10-CR-431, 2014 WL
1379540, at *1 (N. D. Ga. Apr. 8, 2014)] The district court concluded that the Magistrate
Judge had correctly determined that based on Eleventh Circuit precedent, Alleyne did not
apply retroactively, stating, “The Court is not aware of any federal court that has held
Alleyne retroactively applicable to cases on collateral review, and Movant [GarciaValenzuela] has identified no such case.” [Id.]
The district court also concluded that the Magistrate Judge had correctly determined
that Garcia-Valenzuela’s § 2255 motion would have failed even if he had timely presented it.
[Id., at *2]

The district court explained that the only fact that triggered the statutory

minimum twenty-year sentence for Garcia-Valenzuela was his prior felony drug conviction,
but that in Alleyne, the Supreme Court had reiterated that the Constitution does not require
the fact of a prior conviction either to be presented to a jury or proven beyond a reasonable
doubt. [Id., (citing Alleyne, 133 S.Ct. at 2160 n. 1)]

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Garcia-Valenzuela appealed, but the Eleventh Circuit denied him a certificate of
appealability, finding that his § 2255 motion was “…plainly barred by § 2255(f)’s one-year
statute of limitations….” [R. 61, therein; see Garcia-Valenzuela v. United States, No. 1412033 (11th Cir. Aug. 25, 2014)]
CLAIMS ASSERTED IN § 2241 PETITION
In his § 2241 petition, Garcia-Valenzuela challenges the enhancement of his sentence
based on what he contends are retroactively applicable Supreme Court cases.

Garcia-

Valenzuela cites Descamps v. United States, ––– U.S. ––––, 133 S. Ct. 2276, 186 L.Ed.2d 438
(2013), in which the Supreme Court examined whether a state-law burglary conviction
qualified as a “violent felony” within the meaning of the Armed Career Criminal Act (“the
ACCA”), 18 U.S.C. § 924(e). Descamps, 133 S.Ct. at 2282. The Supreme Court held that
when determining whether a prior conviction qualifies as a predicate offense under the
ACCA, sentencing courts may not apply the “modified categorical approach” when the crime
of which the defendant was convicted has a single, indivisible set of elements. Id. at 2282–
83 (describing the differences between the “categorical approach” and the “modified
categorical approach”). The Supreme Court clarified that a sentencing court “may use the
modified approach only to determine which alternative element in a divisible statute formed
the basis of the defendant's conviction.” 133 S.Ct. at 2293.
Garcia-Velenzuela contends that based on Descamps, the trial court should not have
considered his prior Georgia state court drug trafficking conviction as a predicate offense for
sentencing enhancement purposes.

He asserts that a prior conviction qualifies as a

predicate offense for enhancement under the ACCA only if the statute’s elements are the
same as, or narrower than, the elements of 21 U.S.C. § 841(a)(1), but that the Georgia drug
trafficking statute under which he was convicted did not contain a “knowledge” element, i.e.,
the prosecutor was not required to prove the element of mens rea. Garcia-Valenzuela thus
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argues that under Descamps, the enhancement of his federal sentence, based on his prior
state court drug trafficking conviction, was erroneous and unconstitutional.
Garcia-Valenzuela also relies on the Supreme Court’s grant/vacate/remand (“GVR”)
order in Persaud v. United States, 134 S.Ct. 1023 (2014). Like Garcia- Valenzuela, the
defendant in Persaud sought to challenge a sentencing enhancement through a § 2241
petition and the savings clause of § 2255.
Garcia-Valenzuela’s claims thus fall under the Fifth Amendment of the U.S.
Constitution, which guarantees due process of law, and the Sixth Amendment of the U.S.
Constitution, which guarantees a trial by jury in any criminal proceeding.

Garcia-

Valenzuela seeks release from custody, and/or any other relief which the Court deems
appropriate, presumably, a new sentence without the enhancement.
DISCUSSION
As a general rule, 28 U.S.C. § 2255 provides the correct avenue to challenge a federal
conviction or sentence, whereas a federal prisoner may file a § 2241 petition if he is
challenging the execution of his sentence (i.e., the BOP’s calculation of sentence credits or
other issues affecting the length of his sentence). See United States v. Peterman, 249 F.3d
458, 461 (6th Cir. 2001); see also Charles Chandler, 180 F.3d 753, 755–56 (6th Cir. 1999).
The Sixth Circuit has explained the difference between the two statutes as follows:
[C]ourts have uniformly held that claims asserted by federal prisoners that seek
to challenge their convictions or imposition of their sentence shall be filed in the
[jurisdiction of the] sentencing court under 28 U.S.C. § 2255, and that claims
seeking to challenge the execution or manner in which the sentence is served shall
be filed in the court having jurisdiction over the prisoner's custodian under 28
U.S.C. § 2241.
Terrell v. United States, 564 F.3d 442, 447 (6th Cir.2009) (internal quotation marks
omitted). In short, 28 U.S.C. § 2255 provides the primary avenue for federal prisoners

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seeking relief from an unlawful conviction or sentence, not § 2241. See Capaldi v. Pontesso,
135 F.3d 1122, 1123 (6th Cir. 2003).
Here, Garcia-Valenzuela is not challenging the execution of his sentence, such as the
computation of sentence credits or parole eligibility, issues which fall under the purview of §
2241.

Instead, Garcia-Valenzuela contends that based on the holding of Decamps, his

enhanced sentence violates his constitutional rights; that because he does not qualify as a
career criminal, his sentence is excessive; and that he should be resentenced without the
enhancement.

Garcia-Valenzuela thus challenges the constitutionality of his 240-month

sentence on Fifth and Sixth Amendment grounds, under § 2241 by way of the “savings
clause” of § 2255(e). However, § 2241 is not the proper mechanism for making this claim.
A federal prisoner may challenge the legality of his detention under § 2241 only if his
remedy under § 2255(e) is found to be inadequate or ineffective. Wooten v. Cauley, 677 F.3d
303, 306-07 (6th Cir. 2012). Wooten, 677 F.3d at 307; 180 F.3d at 756. This exception does
not apply where a prisoner fails to seize an earlier opportunity to correct a fundamental
defect in his or her convictions under pre-existing law, or actually asserted a claim in a prior
post-conviction motion under § 2255 but was denied relief. Charles, 180 F.3d at 756.
Further, a prisoner proceeding under § 2241 can implicate the savings clause of § 2255 if
he alleges “actual innocence,” Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir. 2003), and a
petitioner may only pursue a claim of actual innocence under § 2241 when that claim is
“based upon a new rule of law made retroactive by a Supreme Court case.” Townsend v.
Davis, 83 F. App’x 728, 729 (6th Cir. 2003). “It is the petitioner's burden to establish that
his remedy under § 2255 is inadequate or ineffective.” Charles, 180 F.3d at 756. GarciaValenzuela contends that his § 2255 motion was inadequate or ineffective because

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Descamps, decided long after his § 2255 motion was denied, supports his argument that the
district court improperly increased (doubled) the length of his federal sentence.
Garcia-Valenzuela’s reliance on Descamps is misplaced, because the Supreme Court did
not indicate in Descamps that its holding applies retroactively to cases on collateral review,
such as Garcia Valenzuela’s § 2241 petition. The Supreme Court has unequivocally stated
that “a new rule is not made retroactive to cases on collateral review unless the Supreme
Court holds it to be retroactive.” Tyler v. Cain, 533 U.S. 656, 663 (2001).
In affirming the denial of a § 2241 petition based on Descamps, the Sixth Circuit recently
observed in an unpublished opinion that “…the Supreme Court has not held that Descamps
is retroactive….Thus, Zemba’s challenge is not cognizable in a § 2241 petition.” Joseph D.
Zemba v. Robert Farley, Warden, No. 14-6110 (6th Cir May 29, 2015).1 Further, several
district courts, including this Court, have determined that Descamps does not apply
retroactively to cases on collateral review, under either § 2241 or § 2255. Oman v. Cross,
2014 WL 3733981, at **2-3 (S.D. Ill., July 29, 2014) (denying § 2241 petition and stating,
“Descamps is a new statutory interpretation case, but it does not represent a change in the
law that has any relevance to petitioner's circumstances…. Moreover, even if Descamps did
adopt a new rule of law, the new law has not been made retroactive by the Supreme Court.);
United States v. Patrick, Nos. 6:06-CR-34-DCR, 6:14-CV-7357-DCR, 2014 WL 2991857, at *2
(E.D. Ky. June 30, 2014) (finding that Descamps did not afford retroactive relief under 28
U.S.C. § 2255); Jordan v. Butler, No. 6:14-CV-159-DCR, 2014 WL 6775239, at *3 (E. D. Ky.,
Dec. 2, 2014) (denying §2241 petition based on Descamps); Wilson v. Holland, No. 13-CV164-DCR, 2014 WL 517531, at *3 (E.D. Ky. Feb. 10, 2014) (same); Hoskins v. Coakley, No.
On April 17, 2014, Jospeh D. Zemba filed a § 2241 habeas petition in this Court, asserting the same claim
which Garcia-Valenzuela asserts in this proceeding: that Descamps applied retroactively to his claims
challenging the length of his federal sentence. Joseph D. Zemba v. Robert Farley, Warden, No. 7:14-CV-59-ART
(E.D. Ky. 2014) [R. 1, therein] On August 19, 2014, Judge Amal R. Thapar denied Zemba’s § 2241 petition on
the basis that Sixth Circuit precedent did not permit Zemba to assert such a claim under § 2241. [R. 6; R. 7,
therein] As noted above, Zemba unsuccessfully appealed that decision.
1

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4:13-CV-1632, 2014 WL 245095, at *5 (N.D. Ohio Jan. 22, 2014) (holding that Descamps did
not apply retroactively and did not provide a basis for relief under § 2241).2
Moreover, Garcia-Valenzuela does not contend that he is actually innocent of the
underlying drug offense to which he pleaded guilty and of which he was convicted. In other
words, he has not alleged that he “stands convicted of ‘an act that the law does not make
criminal.’” Carter v. Coakley, No. 4:13 CV 1270, 2013 WL 3365139 (N.D. Ohio July 3, 2013)
(quoting Bousley v. United States, 523 U.S. 614, 623 (1998)). Garcia-Valenzuela challenges
only the length of his federal sentence.
The savings clause of § 2255 extends only to petitioners asserting a claim of actual
innocence regarding their convictions, not their sentences. 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.”); Reminsky v. United States, 523 F. App’x 327, 329 (6th Cir.
2013); Hayes v. Holland, 473 F. App’x 501, 502 (6th Cir. 2012) (“[The petitioner] 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.”); Contreras v. Holland, 487 F. App’x 287, 288 (6th Cir. 2012) (holding
that a prisoner’s challenge to his sentencing enhancement under §§ 841 and 846 was not
cognizable under § 2241); Brown v. Hogsten, 503 F. App’x 342, 343 (6th Cir. 2012) (“[C]laims
of sentencing error may not serve as the basis for an actual innocence claim.”); see also
Whittaker v. Chandler, 574 F. App’x 448, 449 (5th Cir. 2014) (holding that Descamps and

See also Randolph v.United States, No. CCB-13-1227, 2013 WL 5960881, at * 1(D. Md. Nov. 6, 2013) (“The
Supreme Court has not, however, indicated that Descamps applies retroactively to cases on collateral appeal,
and this court is not aware of any circuit court opinion so holding.”); United States v. Sanders, No. 4:03-CR-154,
2013 WL 5707808, at *2, n. 25 (N.D. Ohio, Oct. 18, 2013) (noting that Descamps has not been made retroactive
to cases on collateral attack); Roscoe v. United States, Nos. 2:11-CR-37-JHH-RRA, 2:13-CV-8006-JHH, 2013 WL
5636686, at * 11 (N.D. Ala. Oct.16, 2013) (same); Strickland v. English, No. 5:13-CV-248-RS-EMT, 2013 WL
4502302, at * 8 (N.D. Fla. Aug. 22, 2013) (finding that “Descamps does not open the § 2241 portal” to review the
claim under the savings clause).
2

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other cases which address sentencing issues had “…no effect on whether the facts of
Whittaker’s case would support his conviction for the substantive offense.”)
Thus, Garcia-Valenzuela’s claims challenging the length of his 240-month sentence fails
because claims of sentencing error do not qualify as “actual innocence” claims under § 2241.
See Bannerman, 325 F.3d at 724; Hoskins v. Coakley, No. 4:13-CV-1632, 2014 WL 245095
(N.D. Ohio Jan. 22, 2014) (denying federal prisoner’s § 2241 petition in which he merely
challenged his enhanced sentence).
Finally, Garcia-Valenzuela asks the Court to consider his petition in light of the
Supreme Court’s GVR order in Persaud v. United States, 134 S.Ct. 1023 (2014).

Like

Garcia-Valenzuela, the defendant in Persaud sought to challenge a sentencing enhancement
by way of a § 2241 petition and the savings clause of § 2255, but binding circuit precedent
foreclosed that avenue of relief. The Solicitor General confessed error, taking the view that
a petitioner can challenge a sentencing enhancement through the savings clause, and asked
the Supreme Court to remand the case to the Fourth Circuit for reconsideration in light of
the United States’ new position. See Brief of Appellee at *22–23, Persaud, 134 S.Ct. at 1023.
The Supreme Court acquiesced and issued a GVR order. Persaud, 134 S.Ct. at 1023.
However, the Supreme Court’s GVR order was not a reversal on the merits, nor was it a
suggestion that the Fourth Circuit was wrong. See Communities for Equity v. Mich. High
Sch. Athletic Ass’n, 459 F.3d 676, 681 (6th Cir. 2006). Rather, it is “a device that allows a
lower court that had rendered its decision without the benefit of an intervening clarification
to have an opportunity to reconsider that decision and, if warranted, to revise or correct it.”
Gonzalez v. Justices of the Mun. Ct. of Boston, 420 F.3d 5, 7 (1st Cir. 2005). While the GVR
in Persaud gave the Fourth Circuit an opportunity to reconsider its own decision, it does not
give district courts free license to ignore binding circuit precedent. The same result obtains

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in this case: the binding Sixth Circuit precedent, discussed above, bars Garcia-Valenzuela
from seeking relief as to the length of his sentence through a § 2241 petition.
For the reasons set forth above, Garcia-Valenzuela has not demonstrated either that his
remedy under § 2255 was inadequate or ineffective, or that he is actually innocent of the
federal drug offense of which he was convicted. Because Garcia-Valenzuela has not alleged
a viable claim of actual innocence, he is not entitled to relief under § 2241. Therefore, his
habeas petition will be denied.
CONCLUSION
Accordingly, it is hereby ORDERED as follows:
1.

Petitioner Omar Garcia-Valenzuela’s § 2241 petition for a writ of habeas

corpus [R. 1] is DENIED.
2.

The Court will enter an appropriate Judgment; and

3.

This habeas proceeding is DISMISSED and STRICKEN from the Court’s

docket.
This July 14, 2015.

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