Mason v. Ormond

Filing 16

MEMORANDUM OPINION AND ORDER: 1) Mason's original and amended petitions for a writ of habeas corpus [R. 1,11] are DENIED; 2) The Court will enter judgment contemporaneously w/this order; 3) This matter is DISMISSED and STRICKEN from the docket.. Signed by Judge Karen K. Caldwell on 9/15/2017.(RC)cc: COR, paper copy to pro se filer w/nef

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
STEPHON MASON,
Petitioner,

Civil Action No. 6: 17-82-KKC

V.
J. RAY ORMOND, Warden.

MEMORANDUM OPINION
AND ORDER

Respondent.

*** *** *** ***
Inmate Stephon Mason has filed an original and amended petitions for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. [R. 1, 11] This matter is before the Court to
conduct an initial screening of Mason’s second amended petition.

28 U.S.C. § 2243;

Alexander v. Northern Bureau of Prisons, 419 F. App’x 544, 545 (6th Cir. 2011). Because
Mason’s claims cannot be asserted in a petition under 28 U.S.C. § 2241 and they are
substantively without merit, the Court will deny the petition.
I
In July 2003, Mason and more than a dozen other persons were indicted in
Maryland for their roles in operating a large-scale drug trafficking ring. The government
filed a notice pursuant to 21 U.S.C. § 851 indicating that Mason’s sentence was subject to
enhancement in light of several prior offenses, including a 1992 conviction for Possession
with Intent to Distribute in Case No. CT922181X and a 1993 conviction for Possession with
Intent to Distribute Cocaine and Possession with Intent to Distribute Cocaine in a DrugFree Zone in Case No. CF970604. Mason was therefore subject to a mandatory minimum
sentence of life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A).

A jury subsequently found Mason guilty of numerous charges ranging from
conspiracy, drug trafficking, and money laundering to being a felon in possession of a
firearm and firearms possession in furtherance of a drug trafficking crime. Mason qualified
as a career offender under § 4B1.1 of the sentencing guidelines; however, even without that
enhancement his guidelines range was 360 months to life imprisonment. On September 29,
2005 – eight months after the Supreme Court issued its decision in United States v. Booker,
543 U.S. 220 (2005) – the trial court imposed a cumulative sentence of life plus five years
imprisonment. This included a 30-year sentence for possession with intent to distribute
cocaine in violation of 21 U.S.C. § 841(a)(1) as set forth in Count Ten and a concurrent life
sentence for conspiracy to distribute over five kilograms of cocaine and over 50 grams of
crack cocaine in violation of 21 U.S.C. § 846 as set forth in Count One. United States v.
Mason, No. 8: 03-CR-321-DKC-4 (D. Md. 2003). The Fourth Circuit affirmed on direct
appeal, rejecting arguments that the sentences imposed ran afoul of Booker. United States
v. Melvin, 2007 WL 2046735 (4th Cir. 2007).
In his petition, Mason argues that the enhancement of his federal sentence pursuant
to 21 U.S.C. § 841(b)(1)(A) violates his due process and equal protection rights because his
prior convictions were not evaluated as possible predicate offenses using the same
“categorical approach” described in Mathis v. United States, __ U.S. __, 136 S. Ct. 2243
(2016), which is applied to evaluate prior convictions for possible sentence enhancements
imposed pursuant to 18 U.S.C. § 924(e)(1).
II
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
carried out, such as computing sentence credits or determining parole eligibility. Terrell v.

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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. Hernandez 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 if 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 yet another “bite at the apple.” Hernandez v. Lamanna, 16 F. App’x 317, 360 (6th Cir.
2001).
To properly invoke the savings clause, the petitioner must be asserting a claim that
she is “actual 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 she was convicted in a manner that establishes that her
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,

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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.
Mason’s petition must be denied because his claims are not ones of actual innocence,
and hence are not cognizable in a § 2241 petition. Mason asserts that the enhancement of
his sentence pursuant to 21 U.S.C. § 841(b)(1)(A) is unconstitutional because it was not the
product of the categorical approach applicable to enhancements under 18 U.S.C. § 924(e)(1).
First, this is not a claim based upon statutory interpretation but a constitutional claim, and
hence falls outside the purview of § 2241. Second, it is not a claim based upon Mathis at
all; rather, it is predicated upon the categorical approach, a doctrine established more than
a decade before Mason’s sentence was imposed. See Taylor v. United States, 495 U.S. 575,
600-601 (1990); Shepard v. United States, 544 U.S. 13, 26 (2005). It is therefore a claim he
could and must have asserted before the trial court, upon direct appeal, or in a motion
pursuant to 28 U.S.C. § 2255. For these reasons, his claims may not be pursued under 28
U.S.C. § 2241.
Mason also 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 v. Holland, 473 F. App’x 501, 502 (6th Cir. 2012) (“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, but
only where (1) the petitioner’s sentence was imposed when the Sentencing Guidelines were

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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.
Mason’s claim fails to satisfy at least the first and third requirements. Mason was
sentenced in September 2005, eight months after Booker was decided, and the Fourth
Circuit concluded that the trial court correctly applied the post-Booker discretionary
guidelines regime. And as noted above, Mason’s claims are not based upon any recent
Supreme Court decision, but instead challenge the limited applicability of the categorical
approach on constitutional grounds, a situation in effect for more than a decade before his
sentence was imposed. Mason’s challenge to his sentence therefore falls outside the limited
exception articulated in Hill and will be denied.
Finally, Mason’s claim is wholly without merit.

Determining whether a prior

conviction was for a “serious drug offense” within the meaning of 18 U.S.C. § 924(e)(2)(A)
may involve a complex assessment of whether the prior offense involved the manufacture,
distribution, or possession with intent to do one of these things within the meaning of the
statute. Cf. United States v. Hinkle, 832 F.3d 569, 572-73 (5th Cir. 2016). When making
that assessment, the categorical approach guides the district court when comparing each of
the numerous elements which collectively constitute the underlying offense against the
elements of its generic counterpart. See, e.g., Taylor, 495 U.S. at 591.
But Mason’s sentence was not enhanced under this statute. Instead, his sentence
was enhanced under the far simpler provision found in 21 U.S.C. § 841(b)(1)(A) because he

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had previously committed numerous “felony drug offenses.” To qualify as a “felony drug
offense,” no detailed comparison of elements is required.

Rather, 21 U.S.C. § 802(44)

merely requires that the prior state or federal offense (1) be punishable by more than one
year in prison, and (2) that it “prohibits or restricts conduct relating to narcotic drugs,
marihuana, anabolic steroids, or depressant or stimulant substances.”

By its terms, §

802(44) does not require that the prior offense constitute any particular species of crime,
but only that it “relat[e] to” conduct involving drugs.
Given the breadth of this definition the use of the categorical approach is neither
necessary nor appropriate. See United States v. Graham, 622 F. 3d 445, 456-57 (6th Cir.
2010); United States v. Spikes, 158 F.3d 913, 932 (6th Cir. 1998) (“[Section] 802(44) only
requires that the state statute criminalize conduct ‘relating’ to drugs. The use of the
expansive term ‘relating’ as the only substantive limitation on the reach of the statutory
phrase ‘felony drug offense’ clearly indicates that the statute encompasses drug offenses
that involve the simple possession of drugs.”), cert. denied, 525 U.S. 1086 (1999). The more
complex analysis described in Taylor and Mathis is simply not relevant to Mason’s
circumstances. For each of these reasons, Mason’s petition fails to establish any basis for
habeas relief. Cf. United States v. Smith, No. 1:12-CR-88-1, 2017 WL 3528954, at *5-6
(W.D. La. July 11, 2017) (rejecting the exact argument pressed here and correctly noting
that “[t]he categorical approach in Moncrieffe and Taylor has never been applied to the
enhanced penalty provisions of § 841(b)(1)(A) and has never been used to interpret the
phrase ‘felony drug offense’ in 21 U.S.C. § 802(44).”) (citing United States v. Wing, No. 5:13CR-87-JMH, 2016 WL 3676333, at *2 (E.D. Ky. 2016)).
Accordingly, it is ORDERED as follows:

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1.

Mason’s original and amended petitions for a writ of habeas corpus [R. 1, 11]

are DENIED.
2.

The Court will enter a judgment contemporaneously with this order.

3.

This matter is DISMISSED and STRICKEN from the docket.

Dated September 15, 2017.

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