McCormick v. Butler

Filing 4

MEMORANDUM OPINION & ORDER: (1) Petitioner Kevin J. McCormicks petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. #1) is DENIED; (2) This action is DISMISSED and STRICKEN from the Courts active docket; and (3) A Judgment shall be entered contemporaneously with this Memorandum Opinion and Order. Signed by Judge David L. Bunning on 10/20/2017.(JMB)cc: COR, Kevin McCormick via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 16-235-DLB
KEVIN J. McCORMICK
VS.

PETITIONER

MEMORANDUM OPINION AND ORDER

SANDRA BUTLER, Warden

RESPONDENT
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Inmate Kevin J. McCormick has filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241. (Doc. # 1). This matter is before the Court to conduct an initial
screening of McCormick’s petition. 28 U.S.C. § 2243; Alexander v. Northern Bureau of
Prisons, 419 F. App’x 544, 545 (6th Cir. 2011). Because McCormick’s claim cannot be
asserted in a petition under 28 U.S.C. § 2241, the Court will deny the petition.
I.

FACTUAL AND PROCEDURAL BACKGROUND
On June 9, 2011, McCormick was indicted in this Court for being a felon in

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). United States
v. McCormick, 2:11-cr-33-DLB-EBA (Doc. # 1 therein). Shortly thereafter, the prosecution
filed a notice that, if convicted, McCormick’s sentence was subject to enhancement
pursuant to 18 U.S.C. § 924(e) and that he would be sentenced as an armed career
offender pursuant to § 4B1.4 of the United States Sentencing Guidelines, in light of four
previous violent felony convictions. Id. (Doc. # 15 therein). Specifically, McCormick’s
criminal history included four separate 1993 convictions in Kentucky state courts for thirddegree burglary. Id.
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On November 22, 2011, a jury found McCormick guilty of Count 1 of the Indictment,
the charge of being a felon in possession of a firearm. Id. (Doc. # 40 therein). This Court
found that the Armed Career Criminal Act (“ACCA”) enhancement applied as a result of
McCormick’s prior burglary convictions; thus, McCormick was classified as an armed
career criminal pursuant to § 4B1.4 of the Sentencing Guidelines. Id. (Docs. # 69, 71,
and 72 therein). The ACCA provides that “in the case of a person who violates section
922(g) of this title and has three previous convictions by any court referred to in section
922(g)(1) of this title for a violent felony…committed on occasions different from one
another, such person shall be…imprisoned not less than fifteen years….” 18 U.S.C. §
924(e)(1). Accordingly on March 28, 2012, McCormick was sentenced to a term of
imprisonment of 180 months, the statutory minimum under 18 U.S.C. § 924(e), to be
followed by a 5-year term of supervised release. Id. The Sixth Circuit Court of Appeals
affirmed McCormick’s conviction and sentence on appeal. Id. (Docs. # 102 and 103
therein).
In 2014, McCormick filed a Motion to Vacate his sentence pursuant to 28 U.S.C.
§ 2255. Id. (Doc. # 106 therein). Among other arguments, McCormick sought relief on
the grounds that, in light of Descamps v. United States, 133 S.Ct. 2276 (2013), his statecourt third-degree burglary convictions did not qualify as predicate offenses to support an
Armed-Career-Criminal enhancement. Id. McCormick later conceded the inapplicability
of Descamps in his Reply brief. Id. (Doc. # 118 therein). This Court denied McCormick’s
§ 2255 motion. Id. (Doc. # 123 therein). McCormick appealed the denial of his § 2255
motion, but the Sixth Circuit denied McCormick’s application for a certification of
appealability.

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McCormick then filed an application with the Sixth Circuit to file a second or
successive § 2255 motion, in which he argued that, pursuant to the United States
Supreme Court decision in Johnson v. United States, 135 S. Ct. 2551 (2015), his prior
offenses no longer qualify as predicate offenses under the ACCA. The Sixth Circuit
denied McCormick’s motion, finding that Johnson did not apply to his case. Id. (Doc. #
128 therein). The Court explained:
Prior to sentencing, McCormick objected to the use of his prior convictions
for third-degree burglary as predicate offenses under the ACCA. The
district court overruled the objections, holding that McCormick’s offenses
qualified under the enumerated-offenses clause under the “modified
categorical approach.” Although the Supreme Court recently held in Mathis
v. United States, No. 15-6092, 2016 WL 3434400, at *7-8 (U.S. June 23,
2016), that the “modified categorical approach” should not be used in similar
circumstances, McCormick’s current motion challenges the validity of his
prior convictions in light of Johnson only. Because the district court did not
count his prior offenses under the residual clause, McCormick does not
have a claim under Johnson.
Id.
McCormick has now filed the instant petition pursuant to 28 U.S.C. § 2241, arguing
that, in light of Mathis v. United States, 136 S. Ct. 2243 (2016), his convictions for thirddegree Burglary no longer qualify as violent felonies for purposes of the Armed Career
Criminal Act enhancement under 18 U.S.C. § 924(e)(1). McCormick invokes the “savings
clause” provision of 28 U.S.C. § 2255(e) to contend that he may assert this claim in a
§ 2241 petition. However, because McCormick may not bring his Mathis claim in a §
2241 petition, his petition will be denied.
II.

ANALYSIS
A habeas corpus petition filed pursuant to § 2241 may be used to challenge actions

taken by prison officials that affect the manner in which the prisoner’s sentence is being

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carried out, such as computing sentence credits or determining parole eligibility. Terrell
v. United States, 564 F.3d 442, 447 (6th Cir. 2009). If a federal prisoner instead wishes
to challenge the legality of his federal conviction or sentence, he must do so by filing a
motion for post-conviction relief under 28 U.S.C. § 2255 in the court that convicted and
sentenced him. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 2003). A habeas
corpus petition pursuant to 28 U.S.C. § 2241 may not be used for this purpose because
it does not function as an additional or alternative remedy to the one available under
§ 2255. McCormick v. Lamanna, 16 F. App’x 317, 320 (6th Cir. 2001).
The “savings clause” of 28 U.S.C. § 2255(e) creates an extraordinarily narrow
exception to this prohibition, when the remedy afforded by § 2255 is “inadequate or
ineffective” to test the legality of the prisoner’s detention. Truss v. Davis, 115 F. App’x
772, 773-74 (6th Cir. 2004). A motion under § 2255 is not “inadequate or ineffective”
simply because the prisoner’s time to file a § 2255 motion has passed, he did not file a §
2255 motion, or he did file such a motion and was denied relief. Copeland v. Hemingway,
36 F. App’x 793, 795 (6th Cir. 2002); Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002)
(holding that § 2241 is available “only when a structural problem in § 2255 forecloses
even one round of effective collateral review ...”). In other words, prisoners cannot use a
habeas petition under § 2241 as another “bite of the apple.” McCormick, 16 F. App’x at
319.
To properly invoke the savings clause, the petitioner must be asserting a claim that
he is “actually innocent” of the underlying offense by showing that after the petitioner’s
conviction became final, the Supreme Court re-interpreted the substantive terms of the
criminal statute under which he was convicted in a manner that establishes that his

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conduct did not violate the statute. Wooten v. Cauley, 677 F.3d 303, 307-08 (6th Cir.
2012) (citing United States v. Peterman, 249 F.3d 458, 461-62 (6th Cir. 2001)); Hayes v.
Holland, 473 F. App’x 501, 501-02 (6th Cir. 2012) (“To date, the savings clause has only
been applied to claims of actual innocence based upon Supreme Court decisions
announcing new rules of statutory construction unavailable for attack under section
2255.”).

The Supreme Court’s newly announced interpretation must, of course, be

retroactively applicable to cases on collateral review. Wooten, 677 F.3d at 308.
McCormick’s petition must be denied because his claims are not ones of actual
innocence, and hence are not cognizable in a § 2241 petition. McCormick challenges not
his convictions, but his sentence. The decidedly narrow scope of relief under § 2241
applies with particular force to sentencing challenges. Peterman, 249 F.3d at 462; Hayes,
473 F. App’x at 502 (“The savings clause of section 2255(e) does not apply to sentencing
claims.”). In Hill v. Masters, 836 F.3d 591 (6th Cir. 2016), the Sixth Circuit articulated a
very narrow exception to this general rule, permitting a challenge to a sentence to be
asserted in a § 2241 petition only where (1) the petitioner’s sentence was imposed when
the Sentencing Guidelines were mandatory before the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220 (2005); (2) the petitioner was foreclosed from
asserting the claim in a successive petition under § 2255; and (3) after the petitioner’s
sentence became final, the Supreme Court issued a retroactively applicable decision
establishing that—as a matter of statutory interpretation—a prior conviction used to
enhance his federal sentence no longer qualified as a valid predicate offense. Hill, 836
F. 3d at 599-600.

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McCormick’s claim fails to satisfy at both the each of these requirements.
McCormick was sentenced in March 2012, well after Booker was decided in 2005, thus
he fails to meet Hill’s first requirement.

With respect to Hill’s second requirement,

McCormick relies upon the Supreme Court’s recent decision in Mathis. In Mathis, the
Supreme Court reiterated that a statute is considered “divisible,” therefore permitting use
of the modified categorical approach to determine whether a prior offense may be used
to enhance a sentence under the career offender provision, only when it contains
alternative elements (hence defining multiple offenses), not when it merely contains
alternative factual means of committing a single offense. Mathis, 136 S. Ct. at 2249,
2251-52.

But for a claim based upon a recently issued Supreme Court decision

interpreting a statute to be cognizable in a § 2241 petition, the holding must be
retroactively applicable to cases on collateral review. Wooten, 677 F.3d at 307-08. The
Supreme Court in Mathis itself 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, 2017 WL 4159184
(6th Cir. 2017). Therefore, because Mathis is not retroactive, McCormick may not rely
upon it to satisfy the third requirement of Hill.
Because McCormick fails to satisfy the threshold requirement of Hill, his claim falls
outside that narrow exception. Accordingly, his sentencing claim does not fall within the
narrow scope of Section 2255(e)’s savings clause, and his petition must be denied.
Peterman, 249 F.3d at 462.

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III.

CONCLUSION
Accordingly, IT IS ORDERED as follows:
(1)

Petitioner Kevin J. McCormick’s petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241 (Doc. #1) is DENIED;
(2)

This action is DISMISSED and STRICKEN from the Court’s active docket;

(3)

A Judgment shall be entered contemporaneously with this Memorandum

and

Opinion and Order.
This 20th day of October, 2017.

K:\DATA\ORDERS\ProSe\McCormick 16-235-DLB Dismissal Order (2241) WHM.docx

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