Stone v. Butler

Filing 6

MEMORANDUM OPINION & ORDER: 1. The petition filed pursuant to 28 U.S.C. § 2241 by Mack Stone [R. 1 ] is DENIED with respect to all issues raised in this proceeding. 2. The Court will enter an appropriate Judgment. 3. This matter is DISMISSED and STRICKEN from the active docket. Signed by Judge Karen K. Caldwell on 11/20/17.(SYD)cc: mailed to pro se filer

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
MACK C. STONE,
Petitioner,

Civil Action No. 17-152-KKC

V.
SANDRA BUTLER, Warden,

MEMORANDUM OPINION
AND ORDER

Respondent.

*** *** *** ***
Federal inmate Mack Stone has filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. [R. 1] The Court conducts an initial review of habeas corpus
petitions. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F. App’x 544, 545
(6th Cir. 2011). The Court has thoroughly reviewed Stone’s petition, but concludes that it
must be denied for the reasons set forth below.
In June 2004, a federal indictment charged Stone with conspiracy to possess with
intent to distribute 50 or more grams of crack cocaine in violation of 21 U.S.C. § 846.
Following trial, a jury found Stone guilty of the charge. Because Stone had previously
committed two or more prior felony drug offenses, on February 24, 2005, the trial court
imposed the mandatory sentence of life imprisonment required by 21 U.S.C. § 841(b)(1)(A).
On direct appeal the Sixth Circuit affirmed Stone’s conviction and sentence in an extensive
opinion. United States v. Stone, No. 3:04-142 (M.D. Tenn. 2004), aff’d, 218 F. App’x 425
(6th Cir. 2007).
In 2008, Stone filed a motion pursuant to 28 U.S.C. § 2255 seeking relief from his
conviction and sentence on numerous grounds. The trial court denied the motion in 2011,

concluding that several of those grounds – including the enhancement of his sentence – had
been considered and rejected by the Sixth Circuit on direct appeal.

The Sixth Circuit

affirmed in 2013. Stone v. United States, No. 3: 08-CV-449 (M.D. Tenn. 2008).
In his petition, Stone contends that following the Supreme Court’s decision in
Mathis v. United States, __ U.S. __, 136 S. Ct. 2243 (2016), his prior felony drug convictions
no longer qualify as valid predicate offenses to enhance his sentence.

[R. 1]

Further

analysis reveals that Stone’s reliance upon Mathis is misplaced, both because that decision
does not apply to Stone’s sentence at all, and because Stone could not assert a Mathis claim
in this proceeding even if it did.
State court records attached to Stone’s § 2255 motion indicate that on August 8,
1991, he was arrested in Nashville, Tennessee for the sale of cocaine, a Class B felony
under T.C.A. § 39-17-417. On November 13, 1991, Stone was arrested again, this time for
the sale or delivery of cocaine, also a Class B felony under T.C.A. § 39-17-417. In May 1992,
Stone was sentenced to two eight-year prison terms in Case No. 91-D-2338 and Case No.
92-A-556, the terms to run concurrently with one another. Stone v. United States, No. 3:
08-CV-449 (M.D. Tenn. 2008) [R. 2-1 at 15-22 therein].
These two convictions that formed the basis for the enhancement of Stone’s federal
sentence in 2005. Having been found guilty of conspiracy to distribute crack cocaine, Stone
was subject to the same penalties as those convicted of the underlying offenses set forth in
21 U.S.C. § 841(a). See 21 U.S.C. § 846. Section 841 provides that “[i]f any person commits
a violation of this subparagraph ... after two or more prior convictions for a felony drug
offense have become final, such person shall be sentenced to a mandatory term of life
imprisonment ...” 21 U.S.C. § 841(b)(1)(A). Stone was therefore properly sentenced to life
imprisonment if his two Tennessee convictions from 1992 were for “felony drug offenses.”

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A “felony drug offense” means any offense punishable by more than one year
imprisonment that “prohibits or restricts conduct relating to narcotic drugs, marihuana,
anabolic steroids, or depressant or stimulant substances.” 21 U.S.C. § 802(44). Thus, the
offense need only “relate to” controlled substances to qualify. T.C.A. § 39-17-417(a)(1)-(4)
criminalizes the manufacture, delivery, or sale of a controlled substance, or possession with
intent to do one of those things, all conduct that clearly “relates to” controlled substances.
Courts have therefore consistently held that a conviction under Tennessee’s controlled
substances act qualifies as a valid predicate for an enhancement under 21 U.S.C. §
841(b)(1)(A). Cf. United States v. Jones, 205 F. App’x 327, 344-46 (6th Cir. 2006); Walker v.
United States, No. 3:08-CR-TAV, 2015 WL 13532462, at *3 (E.D. Tenn. Aug. 10, 2015).
Stone’s sentence was therefore properly enhanced under § 841(b)(1)(A). As for his
reliance upon Mathis, that decision is simply not relevant to the sentencing enhancement
applied in his case. 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 18 U.S.C. § 924(e)(1), 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.
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). Stone’s sentence, however, was not enhanced.

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Stone’s sentence was not enhanced under 924(e)(2)(A). Instead, his sentence was
enhanced under the far simpler provision found in 21 U.S.C. § 841(b)(1)(A) because Stone
had previously committed numerous “felony drug offenses.” As noted above, to qualify as a
“felony drug offense” no detailed comparison of elements is required – it need only be
determined that the prior offense “related to” controlled substances. 21 U.S.C. § 802(44).
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 Stone’s case. Cf. United States v.
Smith, No. 1:12-CR-88-1, 2017 WL 3528954, at *5-6 (W.D. La. July 11, 2017) (“[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. 5:13-CR-87-JMH,
2016 WL 3676333, at *2 (E.D. Ky. 2016)).
The foregoing establishes that Mathis does not assist, or even apply to, Stone’s
circumstances, and thus his claim is substantively without merit. The Court further notes
that Stone’s claim under Mathis is not even properly brought in a Section 2241 petition. In
Hill v. Masters, 836 F. 3d 591 (6th Cir. 2016), the Sixth Circuit articulated a very narrow
exception to the general rule that 28 U.S.C. § 2255, not § 2241, must be used to challenge a
conviction or sentence. Under Hill, a challenge to a sentence is permissible in a § 2241

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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.
Stone’s claim fails to satisfy at least the first and third requirements. Stone was
sentenced in February 2005, approximately one month after Booker was decided. That
said, Stone’s sentence was imposed pursuant to a statutory mandatory minimum sentence,
and it is unclear if the Sixth Circuit intended for this first requirement to apply under such
circumstances. Nonetheless, the Supreme Court in Mathis merely reiterated what it had
held long ago:

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 (citing Taylor v. United
States, 495 U.S. 575 (1990)). 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 v. Cauley, 677 F.3d 303, 30708 (6th Cir. 2012). 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 joined other circuits in expressly so
holding. In re: Conzelmann, 872 F. 3d 375, 376-77 (6th Cir. 2017). See also King v. Terris,

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No. 2: 17-CV-10611, 2017 WL 3263446, at *2-4 (E.D. Mich. July 31, 2017).

Therefore

Stone’s Mathis claim cannot be entertained in a § 2241 petition.
For each of these reasons, the Court must deny the petition.
Accordingly, IT IS ORDERED that:
1.

The petition filed pursuant to 28 U.S.C. § 2241 by Mack Stone [R. 1] is

DENIED with respect to all issues raised in this proceeding.
2.

The Court will enter an appropriate Judgment.

3.

This matter is DISMISSED and STRICKEN from the active docket.

Entered November 20, 2017.

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