Whiting v. Ormond

Filing 6

MEMORANDUM OPINION & ORDER: 1. Whitings petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, as supplemented [R. 1, 5] is DENIED; 2. The Court will enter a corresponding Judgment; and 3. This action is STRICKEN from the active docket of the Court.. Signed by Judge Gregory F. VanTatenhove on 3/2/2018.(JMB)cc: COR, Darius Whiting via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
DARIUS WHITING,
Petitioner,
v.
J. RAY ORMOND, Warden,
Respondent.

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Civil Action No. 6: 17-161-GFVT

MEMORANDUM OPINION
&
ORDER

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Inmate Darius Terrell Whiting has filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241. [R. 11.] This matter is before the Court to conduct an initial screening of his
petition. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F. App’x 544, 545
(6th Cir. 2011).
In November 2006, a grand jury in Cedar Rapids, Iowa issued a nine-count indictment
charging Whiting with numerous drug trafficking, firearms, fraud, and money laundering
offenses. On the eve of trial, Whiting agreed to plead guilty, without an agreement, to three of
the charges in exchange for the dismissal of the remainder. In August 2007, the trial court
sentenced Whiting to life imprisonment for conspiracy to manufacture and possess more than 50
grams of crack cocaine within 1000 feet of a playground in violation of 21 U.S.C. § 846. It
further sentenced him to a concurrent 240-month sentence for conspiracy to commit money
laundering in violation of 18 U.S.C. § 1956(a)(1), (h), and to a consecutive 60-month sentence
for possession of a firearm during the commission of a drug trafficking offense in violation of 18
U.S.C. § 924(c). United States v. Whiting, No. 1: 06-CR-145-LRR-1 (N.D. Iowa 2006).

At the sentencing hearing, Whiting admitted that he had previously been convicted of two
felony drug offenses in Illinois. Because his federal conviction under 21 U.S.C. § 846 came
“after two or more prior convictions for a felony drug offense have become final,” federal law
required that he be sentenced to a mandatory minimum of life imprisonment. 21 U.S.C.
§ 841(b)(1)(A). On direct appeal, Whiting argued that this sentence violated the Eighth
Amendment’s prohibition against “Cruel and Unusual Punishments,” a claim the Eighth Circuit
rejected. United States v. Whiting, No. 07-2935 (8th Cir. 2007).
In his petition, Whiting expresses his belief that his drug conspiracy sentence was
enhanced pursuant to the career offender provision under the sentencing guidelines, U.S.S.G.
§4B1.1(a), and that following the Supreme Court’s decision in Mathis v. United States, __ U.S.
__, 136 S. Ct. 2243 (2016) his prior drug convictions no longer qualify as valid predicates to
enhance his sentence. [R. 1 at 3-4; R. 5 at 1-2.] Because Whiting’s claim under Mathis may not
be pursued in a § 2241 petition and because that decision does not apply to the enhancement of
his sentence, his petition must be denied.
A federal prisoner challenging the legality of his federal conviction or sentence must
generally 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 § 2255(e) provides a narrow exception this rule. To properly
invoke it, the petitioner must be asserting a claim that he is “actual innocent” of the underlying
offense by showing that after the petitioner’s conviction became final, the Supreme Court re2

interpreted the substantive terms of the criminal statute under which he was convicted in a
manner that establishes that his 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.
The strict requirements to meet this test apply with particular force to challenges to the
petitioner’s sentence, as opposed to his conviction. In this circuit, to challenge the enhancement
of a sentence in a § 2241 petition (1) the petitioner’s sentence must have been imposed when the
Sentencing Guidelines were mandatory prior to the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005); (2) the petitioner must have been 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 v. Masters, 836 F. 3d 591, 599-600 (6th Cir. 2016).
Whiting’s claim fails to satisfy at least the first and third requirements. Whiting was
sentenced in August 2007, two and a half years after Booker rendered the sentencing guidelines
advisory rather than mandatory. And the Supreme Court’s decision in Mathis is not
retroactively applicable to cases on collateral review. The Supreme Court itself made this
abundantly clear, Mathis, 136 S. Ct. at 2257, and the Sixth Circuit has expressly so held. In re:

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Conzelmann, 872 F.3d 375 (6th Cir. 2017). Whiting’s claim therefore falls outside the scope of
the savings clause, and is not cognizable in a § 2241 petition.
Even if Whiting could assert his claim in this proceeding, it is without merit. While
Whiting points to the Mathis decision as a basis for relief, his claim is not actually based upon it.
In Mathis, the Supreme Court reminded courts that for purposes of determining whether to apply
the career offender enhancement found in 18 U.S.C. § 924(e)(1), a statute defining a predicate
offense is divisible (thus permitting review of extrinsic materials under Shepard) only when it
defines multiple offenses, not when it merely describes alternative factual means to commit a
single offense. Mathis, 136 S. Ct. at 2248-50.
As noted above, Whiting is under the impression that the sentence imposed under § 846
was enhanced under the career offender provision found in the sentencing guidelines, U.S.S.G.
§ 4B1.1(a). It was not. Instead, his sentence was increased because he had two or more prior
convictions for “felony drug offenses” pursuant to 21 U.S.C. § 841(b)(1)(A). While Mathis does
apply to sentence enhancements under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.1(a), it does not
address or relate to sentence enhancements under § 841(b)(1)(A). 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.” (emphasis added).
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,
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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 involved in cases governed by Mathis is simply not
relevant to Whiting’s circumstances.
Whiting’s petition thus fails to establish a 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. 5:13-CR-87-JMH, 2016 WL 3676333, at *2 (E.D. Ky. 2016)).
Accordingly, it is hereby ORDERED as follows:
1.

Whiting’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, as

supplemented [R. 1, 5] is DENIED;
2.

The Court will enter a corresponding Judgment; and

3.

This action is STRICKEN from the active docket of the Court.

This the 2nd day of March, 2018.

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