Lewis v. Butler

Filing 5

MEMORANDUM OPINION & ORDER: 1. The Clerk of the Court shall, on the CM/ECF cover sheet, list DaShawn Quantravious Lewis as an alias designation for Petitioner Dashawn Q. Lewis; 2. Lewiss 28 U.S.C. § 2241 Petition for a Writ of Habeas Corpus ( Doc. # 1) is DENIED; 3. The Court will enter a Judgment contemporaneously herewith; and 4. This habeas proceeding is DISMISSED and STRICKEN from the Courts docket.. Signed by Judge David L. Bunning on 9/14/2016.(JMB)cc: COR, DaShawn Lewis via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 16-135-DLB
DaSHAWN Q. LEWIS1

v.

PETITIONER

MEMORANDUM OPINION AND ORDER

SANDRA BUTLER, Warden

RESPONDENT
****

****

****

****

Petitioner DaShawn Q. Lewis, a/k/a DaShawn Quantrav Lewis, a/k/a/ DaShawn
Quantravious Lewis, is an inmate confined by the Bureau of Prisons (“BOP”) at the
Federal Correctional Institution in Manchester, Kentucky.

Lewis has filed a pro se

Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241, in which he
collaterally challenges his 186-month prison sentence. (Doc. # 1). Lewis has paid the
$5.00 filing fee. (Doc. # 4).
In conducting an initial review of habeas petitions under 28 U.S.C. § 2243, the
Court should 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 Lewis is not represented by an attorney, the
Court evaluates his petition under a more lenient standard, and at this stage, accepts
1

In his Florida criminal proceeding, Lewis was also identified as “Dashawn Quantravious Lewis.” See
United States v. DaShawn Quantravious Lewis, No. 1:08-CR-42-MP-GRJ (N.D. Fla., 2008). Accordingly,
the Clerk of the Court will also be instructed to list, on the CM/ECF cover sheet, “DaShawn Quantravious
Lewis” as an alias designation for Petitioner Lewis.
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Lewis’s factual allegations as true and liberally construes his legal claims in his favor.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573
(6th Cir. 2003), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). But
as explained below, Lewis is not entitled to the relief which he seeks. Therefore, his §
2241 habeas petition must be denied.
LEWIS’S CONVICTION, SENTENCE, AND APPEAL
On January 9, 2009, a federal jury in Florida convicted Lewis of bank robbery by
force or violence, in violation of 18 U.S.C. § 2113(a) and (2). United States v. DaShawn
Quantravious Lewis, No. 1:08-CR-42-MP-GRJ-2, Doc. # 65 (N.D. Fla. 2008). On April
2, 2009, the district court sentenced Lewis to a 210-month term of imprisonment. Id. at
Doc. # 79. According to Lewis, the district court determined that based on his prior
felony convictions in the Florida state courts – for Aggravated Assault with Intent to
Commit a Felony (July 2011) and Robbery without a Firearm (July 2002) – he qualified
as a career offender under the prior version of United States Sentencing Guideline
(“USSG”) § 4B1.1(a), which was in effect when he was originally sentenced in April
2009. (Doc. # 1 at 6).
Lewis appealed, but his counsel filed a Motion pursuant to Anders v. California,
386 U.S. 738, 87 S. Ct. 1396 (1967), asking to withdraw from further representation of
Lewis on the ground that the appeal lacked merit. On January 13, 2010, the Eleventh
Circuit Court of Appeals granted Lewis’s counsel’s Motion to Withdraw and affirmed
Lewis’s conviction and sentence, finding counsel’s assessment of the merit of the
appeal was correct, and that no arguable issues of merit existed. United States v.

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DaShawn Quantravious Lewis, No. 1:08-CR-42-MP-GRJ-2, Doc. # 98; United States v.
DaShawn Quantravious Lewis, No. 09-11710 (11th Cir. Dec. 7, 2009). On April 5,
2012, the district court reduced Lewis’s prison sentence to 186 months. DaShawn
Quantravious Lewis, No. 1:08-CR-42-MP-GRJ-2, Doc. # 102.
Neither the docket sheet from Lewis’s criminal proceeding nor the federal
judiciary’s on-line database (Public Access to Court Electronic Records (“PACER”))
reflect that Lewis filed a Motion to Vacate his sentence under 28 U.S.C. § 2255 in the
sentencing court. Further, PACER does not reflect that Lewis has filed a prior Petition
for Writ of Habeas Corpus 28 U.S.C. § 2241 (challenging his 186-month sentence) in
any other district court.
CLAIMS ASSERTED IN THE § 2241 PETITION
In his § 2241 petition, Lewis challenges the validity of his 186-month sentence
based upon Johnson v. United States, --- U.S. ---, 135 S. Ct. 2551 (2015). In Johnson,
the Supreme Court held that the residual clause of the Armed Career Criminal Act (“the
ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii) is unconstitutionally vague.

Therefore, the

Supreme Court held that imposing an increased sentence under that clause violates the
Due Process Clause of the Fifth Amendment to the U.S. Constitution.
In April 2016, the Supreme Court held that Johnson applies retroactively to cases
on collateral review. Welch v. United States, --- U.S. ---, 136 S. Ct. 1257, 1265 (2016);
see also In re Watkins, 810 F. 3d 375, 377 (6th Cir. 2015). Lewis contends that based
on the retroactive effect of Johnson, his 186-month sentence is unconstitutional and

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should be vacated, and that he should be re-sentenced without the USSG career
offender enhancement. (Doc. # 1 at 15).
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 v. Chandler, 180 F.3d
753, 755-56 (6th Cir. 1999).
The Sixth Circuit has provided the following explanation of the difference
between the two statutes:
[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 as opposed to 28 U.S.C. § 2241, provides the
primary avenue for federal prisoners seeking relief from an unlawful conviction or
sentence. See Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 2003).
The “savings clause” of § 2255(e) provides a narrow exception to this general
rule. Under this clause, a prisoner may challenge the legality of his conviction through a
§ 2241 petition only if his remedy under § 2255 “is inadequate or ineffective” to test the
legality of his detention. 28 U.S.C. § 2255(e). This exception does not apply where a
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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. See Wooten v. Cauley, 677 F.3d 303, 30607 (6th Cir. 2012); see also Charles, 180 F.3d at 756. Lewis attempts to collaterally
attack his conviction and sentence on Fifth Amendment grounds under § 2241 via the
“savings clause” of § 2255(e).

However, § 2241 is not the proper mechanism for

asserting these claims.
Here, Lewis states in his § 2241 petition that he was sentenced as a career
offender under USSG §§ 4B1.1(a); 4B1.2(a)(1). Lewis does not allege that he was
sentenced under the ACCA, which was the specific statutory scheme addressed in
Johnson.

On May 13, 2016, the Sixth Circuit determined that the similarly-worded

“residual clause” of the former version of USSG § 4B.1.2(a), which stated that “crime of
violence” included “conduct that presents a serious potential risk of physical injury to
another,” was also unconstitutionally vague. United States v. Pawlak, 822 F.3d 902 (6th
Cir. 2016). But Pawlak was decided in a direct appeal, not in a case on collateral
review, and while the United State Supreme Court has made its holding in Johnson
retroactive to cases on collateral review, it has not done so with respect to USSG cases
on collateral review. See Welch, 136 S. Ct. 1257.
Arguably, 28 U.S.C. § 2255 could have provided an available mechanism for
Lewis to assert his Johnson and Welch claim in the sentencing court. The key phrase
here is “could have,” as 28 U.S.C. § 255(f) places a one-year statute of limitations on all
petitions for collateral relief under § 2255, running from the later of:

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(1) the date on which the judgment of conviction becomes final; (2) the
date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United
States is removed, if the movant was prevented from making a motion by
such governmental action; (3) the date on which the right asserted was
initially recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or (4) the date on which the
facts supporting the claim or claims presented could have been
discovered through the exercise of due diligence.
28 U.S.C. § 2255(f) (emphasis added).
The Sixth Circuit’s decision in In re Watkins makes clear that claims based on the
Supreme Court’s opinion in Johnson satisfy the third sub-category – assertion of a
newly recognized right made retroactively applicable on collateral review – and thus,
trigger a renewed one-year statute of limitations running from the date on which
Johnson was decided: June 26, 2015. In re Watkins, 810 F.3d at 383 (finding that
Johnson constitutes a new substantive rule of constitutional law made retroactively
applicable on collateral review and thus triggers § 2255(h)(2)’s requirement for certifying
a second petition). But, because Johnson was decided on June 26, 2015, Lewis was
required to have asserted any Johnson-based claim challenging his enhanced sentence
in the sentencing court, through the mechanism of a § 2255 motion, on or before June
26, 2016. That deadline has passed. Accordingly, any Johnson-based claim which
Lewis might have brought under § 2255 is now be foreclosed under the one-year time
limitation set forth in 28 U.S.C. § 2255(f). See Dodd v. United States, 545 U.S. 353,
357, 125 S. Ct. 2478, 2482 (2005) (explaining that the one-year limitation period for
filing a 28 U.S.C. § 2255 motion to vacate, based on right that was newly recognized by
the Supreme Court, ran from the date on which the Supreme Court initially recognized
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the right asserted, not from the date on which the right asserted was made retroactively
applicable).
Again, a federal prisoner may challenge the legality of his detention under § 2241
only if his remedy under § 2255(e) is inadequate or ineffective. See Wooten v. Cauley,
677 F.3d at 306-07; Charles, 180 F.3d at 756.

The remedy under § 2255 is not

inadequate where a petitioner either failed to assert a legal argument in a § 2255
motion, or where he asserted a claim but was denied relief on it. Charles, 180 F.3d at
756-58; Rumler v. Hemingway, 43 F App’x 946, 947 (6th Cir. 2002). It is the petitioner’s
burden to establish that his remedy under § 2255 is “inadequate or ineffective.”
Charles, 180 F.3d at 756.
Lewis has not carried that burden here, because his remedy under 28 U.S.C. §
2255, was not “inadequate or ineffective” to test the legality of his detention. Instead,
Lewis simply failed to assert his Johnson claim in the sentencing court on or before the
June 26, 2016 deadline. Because Lewis’s remedy under § 2255 was not “inadequate or
ineffective” to test the legality of his detention, his § 2241 petition must be denied.
Truss v. Davis, 115 F. App’x 772, 773-74 (6th Cir. 2004).
Further, Lewis was sentenced in a Florida district court which falls under the
jurisdiction of the Eleventh Circuit Court of Appeals, and in Beckles v. United States,
616 F. App’x 415 (11th Cir. Sept. 29, 2015), the Eleventh Circuit held that Johnson does
not control cases in which a defendant is classified as a career offender under the
USSG.2 In United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), an advisory

2

On June 27, 2016, the Supreme Court granted certiorari in Beckles on the following issues: (1) whether
Johnson applies retroactively to collateral cases challenging federal sentences enhanced under the
residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of
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Guidelines case, the Eleventh Circuit held that the holding in Johnson does not apply to
the career-offender guideline, and that the guideline is not unconstitutionally vague. In
In re Griffin, 823 F.3d 1350 (11th Cir. 2016), the Eleventh Circuit held that its reasoning
in Matchett applied with equal force to the residual clause of the career-offender
guideline in the context of the mandatory Guidelines. See also In re Sapp, ---F.3d. ---,
2016 WL 2648334, at*2 (11th Cir. Jul. 7, 2016) (finding that under Griffin, Sapp had not
satisfied the statutory criteria for filing a second or successive § 2255 motion based on
his Johnson and Welch sentencing challenge.”)3 For these reasons, collateral relief
under 28 U.S.C. § 2241 is foreclosed.
Alternatively, 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). But 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

violence”); (2) whether Johnson’s constitutional holding applies to the residual clause in U.S.S.G. §
4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral
review; and (3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of
violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson. Beckles,
136 S.Ct. 2510 (Case No. 15-8544).
3

In Sapp, the Eleventh Circuit explained:
The Supreme Court has recently granted certiorari in Beckles v. United States… which
raises the question of whether Johnson applies to the Guidelines. While we respectfully
disagree with the holding of Griffin, we are nonetheless bound by that decision.
….
First, even though the Supreme Court has held in Welch that Johnson applies
retroactively to cases on collateral review, our binding precedent holds that Welch does
not make Johnson retroactive for purposes of filing a successive § 2255 motion raising a
Johnson-based challenge to the Sentencing Guidelines. See Griffin, --- F.3d at ---, 2016
WL 3002293, at *5. Furthermore, Mr. Sapp cannot make a prima facie showing that
Johnson applies to him in light of our holding in Griffin that the mandatory Sentencing
Guidelines cannot be unconstitutionally vague. Id. at *4.

In re Sapp, 2016 WL 2648334, at *2.
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Supreme Court case.” Townsend v. Davis, 83 F. App’x 728, 729 (6th Cir. 2003). 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). Although Johnson applies retroactively, as discussed
above, such relief must have been sought on or before June 26, 2016. This Court finds
no information suggesting that Lewis filed a § 2255 motion (challenging his 186-month
sentence under Johnson) in the Florida sentencing court on or before June 26, 2016.
Finally, and more fundamentally, it does not appear that Lewis’s sentence was
enhanced under the “residual clause” of the former version of USSG § 4B1.2(a)(2),
which was in effect in April 2009.

Rather, the enhancement of Lewis’s sentence

appears to have stemmed from the “use of physical force” provision found in both the
prior and current versions of USSG § 4B1.2(a)(1). In April 2009, when Lewis was
originally sentenced, the USSG defined a crime of violence as:
any offense under federal or state law, punishable by imprisonment for a
term exceeding one year, that(1)

(2)

has as an element the use, attempted use, or threatened
use of physical force against the person of another, or
is burglary of a dwelling, arson, or extortion, involves
the use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another.

U.S.S.G. § 4B1.2(a)(1) (emphasis added) (effective Nov. 1, 2007).4

4

The current version of USSG § 4B1.2(a), amended on July 13, 2016, and effective on August 1, 2016,
provides:
(a) The term “crime of violence” means any offense under federal or state law,
punishable by imprisonment for a term exceeding one year, that-9

Lewis alleges that the prior state court convictions which the Florida sentencing
court used to enhance Lewis’s sentence for bank robbery were for “Aggravated Assault
with Intent to Commit a Felony” and “Robbery without a Firearm.”

Both of these

convictions logically would have qualified as violent crimes implicating the “use of force”
provision of USSG § 4B1.1(a)(1), which was in effect in April 2009, and which is
currently in effect as of August 1, 2016. Based on the information which Lewis provided
in his § 2241 petition, his sentence does not appear to have been enhanced under the
prior version of the “residual clause” of USSG § 4B1.2(a)(1) in April 2009, when he was
originally sentenced, or in April 2012, when he was re-sentenced to a 186-month prison
term.
In the context of his instant habeas petition filed under 28 U.S.C. § 2241, Lewis
has not alleged grounds entitling him to relief because he has not demonstrated that his
remedy under § 2255 was “inadequate or ineffective;” because the ACCA residual
clause at issue in Johnson was not used to enhance his sentence; and because the
sentencing court did not invoke the prior version of the “residual clause” in U.S.S.G. §
4B1.2(a) when Lewis was sentenced. Therefore, Lewis is not entitled to relief under §
2241, his habeas petition will be denied, and this proceeding will be dismissed.

(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or
(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a
forcible sex offense, robbery, arson, extortion, or the use or
unlawful possession
of a firearm described in 26 U.S.C. 5845(a) or explosive material as defined in 18
U.S.C. 841(c).
Even under the current version of USSG § 4B1.2(a)(2), Lewis’s prior state convictions qualify as
predicate offenses for sentence enhancement purposes, because both robbery and aggravated assault
are “crime of violence” offenses specifically enumerated in USSG § 4B1.2(a)(2).
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CONCLUSION
Accordingly, it is hereby ORDERED as follows:
1.

The Clerk of the Court shall, on the CM/ECF cover sheet, list “DaShawn

Quantravious Lewis” as an alias designation for Petitioner Dashawn Q. Lewis;
2.

Lewis’s 28 U.S.C. § 2241 Petition for a Writ of Habeas Corpus (Doc. # 1)

is DENIED;
3.

The Court will enter a Judgment contemporaneously herewith; and

4.

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

docket.
This 14th day of September, 2016.

K:\DATA\ORDERS\ProSe\Lewis, D. 16-135-DLB Dism 2241 CKS.doc

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