Hickman v. Butler
MEMORANDUM OPINION & ORDER: 1. Hickman's petition for a writ of habeas corpus [Record No. 1 ] is DENIED. 2. A corresponding judgment will be entered this date. 3. This matter is DISMISSED and STRICKEN from the docket. Case Terminated. Signed by Judge Danny C. Reeves on 8/31/2017.(RBB)cc: COR, paper copy forwarded to Shawon Hickman, pro se, via US Mail.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SANDRA BUTLER, Warden,
Civil Action No. 6: 16-283-DCR
*** *** *** ***
Inmate Shawon Hickman has filed a pro se petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241, seeking to challenge the enhancement of his federal sentence. [Record
Nos. 1, 4] The Court now conducts an initial screening of Hickman’s petition. 28 U.S.C.
§ 2243; Alexander v. Northern Bureau of Prisons, 419 F. App’x 544, 545 (6th Cir. 2011). As
explained more fully below, the Court will deny the petition because Hickman may not assert
his claims under § 2241 and because they are without merit.
Hickman was indicted in June 2007 by a federal grand jury in Louisville, Kentucky, for
conspiracy to possess with intent to distribute 500 or more grams of cocaine in violation of 21
U.S.C. §§ 841(a)(1), and 846. In August 2008, Hickman signed a written agreement to plead
guilty to the offense and in which he acknowledged the potential applicability of the career
offender enhancements under 21 U.S.C. § 841(b)(1)(A) and under the United States
Sentencing Guidelines. The United States agreed not to file a § 851 notice, which would have
increased Hickman’s guideline range to 262 to 327 months imprisonment. However, Hickman
remained subject to the career offender enhancement under § 4B1.1 of the sentencing
guidelines because he had one prior conviction for first degree assault under KRS § 508.010
and two prior convictions for trafficking in a controlled substance under KRS § 218A.1412.
The plea agreement further provided that Hickman:
… knowingly and voluntarily waive[d] the right (a) to directly appeal his
conviction … and (b) to contest or collaterally attack his conviction and the
resulting sentence pursuant to 28 U.S.C. § 2255 or otherwise on any grounds
whatsoever, including ineffective assistance of counsel.
The trial court sentenced Hickman in November 2008 to 188 months’ of imprisonment
(the bottom of the guideline range). That range was calculated, in part, based on the parties’
agreed-upon determination that Hickman’s prior convictions rendered him a “career offender”
pursuant to U.S.S.G. § 4B1.1(a). Hickman subsequently filed a motion to vacate his conviction
and sentence under 28 U.S.C. § 2255, but the trial court dismissed that motion in light of the
collateral attack waiver of the plea agreement. The Sixth Circuit denied a Certificate of
Appealability, concluding that Hickman knowingly and voluntarily executed the plea
agreement and waiver. United States v. Hickman, No. 3:07-CR-77-01-H (W.D. Ky. 2007).
The Sixth Circuit has twice denied Hickman permission to file second or successive motions
under § 2255.
Hickman argues in his current petition that, following the Supreme Court’s decision in
Mathis v. United States, __ U.S. __, 136 S. Ct. 2243 (2016), his prior convictions for first
degree assault and trafficking in a controlled substance no longer qualify as predicate offenses
to enhance his federal sentence. [Record No. 4-1 at 2-6] However, Hickman’s petition will
be denied because he waived his right to collaterally attack his conviction or sentence in his
plea agreement, a waiver the Sixth Circuit has already concluded is valid and enforceable.
Such waivers apply to § 2241 proceedings. Muller v. Sauers, 523 F. App’x 110, 112 (3d Cir.
2013) (“Muller’s plea agreement included a waiver of collateral-attack rights ‘in any postconviction proceeding, including-but not limited to-any proceeding under 28 U.S.C. § 2255.’
Therefore, his plea agreement forecloses relief pursuant to § 2241 …”); Johnson v. Warden,
551 F. App’x 489, 491 (11th Cir. 2013); Rivera v. Warden, FCI, Elkton, 27 F. App’x 511, 515
(6th Cir. 2001); Solis-Caceres v. Sepanek, No. 13-21-HRW, 2013 WL 4017119, at *3 (E.D.
Ky. Aug. 6, 2013) (collecting cases).
Even if this were not the case, Hickman’s reliance upon Hill v. Masters, 836 F. 3d 591
(6th Cir. 2016), would be misplaced. A § 2241 petition may not be used to challenge a
sentence, as opposed to a conviction. Hayes v. Holland, 473 F. App’x 501, 502 (6th Cir. 2012)
(“The savings clause of section 2255(e) does not apply to sentencing claims.”). Hill created a
singularly narrow exception to that rule, but limited that exception to sentences imposed under
the mandatory guidelines regime before the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005). Id. at 599-600. Hickman was sentenced in 2008, long after
Booker was decided and under a discretionary guidelines regime. Therefore, he may not
pursue his sentencing challenge under § 2241.
Hickman’s claims are also without merit. With respect to his prior conviction for
assault under Kentucky law, assault is not one of the four enumerated offenses in § 4B1.2(a)(2)
and, therefore, Mathis has no application in determining whether that offense constitutes a
“crime of violence.” Rather – as the Sixth Circuit has already advised Hickman - his assault
conviction constitutes a violent felony under the “use of force” clause found in § 4B1.2(a)(1).
In re: Hickman, No. 15-6273 (6th Cir. 2016) (citing United States v. Colbert, 525 F. App’x
364, 368-70 (6th Cir. 2013), and United States v. Knox, 593 F. App’x 536, 537-38 (6th Cir.
Likewise, Hickman’s two Kentucky convictions for drug trafficking unquestionably
qualify as “controlled substance offenses” under § 4B1.2(b). That section defines a “controlled
substance offense” as one that prohibits the “manufacture, import, export, distribution, or
dispensing of a controlled substance” or “possession of a controlled substance … with intent
manufacture, import, export, distribute, or dispense.” KRS § 218A.1412 tracks the language
of § 4B1.2(b) closely: it prohibits “trafficking” in a controlled substance, which means to
“manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture,
distribute, dispense, or sell.” KRS § 218A.010(55). The terms of both provisions are
coextensive save for the addition of “sell” and “transfer” in the Kentucky statute, which
connote nothing more than the “distribution” or “dispensing” in found in § 4B1.2(b). Thus,
Hickman’s drug trafficking convictions constitute “controlled substance offenses, ” and the §
4B1.1 enhancement was properly applied. United States v. Knox, No. 11-60-DLB-EBA, 2016
WL 7320883, at *2-3 (E.D. Ky. Dec. 15, 2016); Jones v. Holland, No. 5: 13-66-GFVT, 2013
WL 11079776, at *1-2 (E.D. Ky. March 26, 2013).
Hickman’s reliance on United States v. Hinkle, 832 F.3d 569, 575-76 (5th Cir. 2016),
is also misplaced. Applying Mathis, the Fifth Circuit stated (without explanation) that Texas’
drug trafficking statute, V.T.C.A. § 481.112(a), criminalizes a broader range of conduct than
that described in § 4B1.2(b) and therefore cannot constitute a predicate offense. Hinkle, 832
F. 3d at 574-76. But critical to that conclusion was the fact that V.T.C.A. § 481.002(8) defines
“delivery” of drugs to include an “offer to sell” them, id. at 572-73, broadening language that
is nowhere to be found in the Kentucky statute under which Hickman was convicted. Even if
Hinkle were persuasive, it is plainly distinguishable on its facts.
In summary, Hickman’s petition fails to establish any basis for habeas relief.
Accordingly, it is hereby
ORDERED as follows:
Hickman’s petition for a writ of habeas corpus [Record No. 1] is DENIED.
A corresponding judgment will be entered this date.
This matter is DISMISSED and STRICKEN from the docket.
This 31st day of August, 2017.
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