Gatewood v. Butler et al

Filing 4

MEMORANDUM OPINION & ORDER: 1. Petitioner Jason M. Gatewood's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [Record No. 1 ] is DENIED. 2. This action is DISMISSED and STRICKEN from the Court's docket. 4. Judgment shall be entered contemporaneously with this Memorandum Opinion and Order. Signed by Judge Danny C. Reeves on 09/27/2017.(KJA)cc: COR, mailed paper copy to pro se filer

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at London)
JASON M. GATEWOOD,

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Petitioner,
v.
S. BUTLER, Warden
Respondent.

Civil Action No. 6: 17-196-DCR

MEMORANDUM OPINION
AND ORDER

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Inmate/Petitioner Jason M. Gatewood is confined at the Federal Correctional
Institution in Manchester, Kentucky. Proceeding without counsel, Gatewood has filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. [Record No. 1] The
matter is before the Court to conduct an initial screening of Gatewood’s petition. 28 U.S.C.
§ 2243. Because Gatewood’s claims cannot be asserted in a petition under 28 U.S.C.
§ 2241, the Court will deny the petition.
I.
A federal grand jury in the Western District of Kentucky issued a three-count
Indictment against Gatewood on February 3, 2010, charging him with: (1) knowing and
intentional possession with the intent to distribute marijuana in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(D) (Count 1); (2) carrying a firearm during and in relation to a
drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count 2); and (3) being a

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person who had previously been convicted of a felony who possessed a firearm in violation
of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count 3).
Gatewood was found guilty of all charges. On September 21, 2011, he was
sentenced to terms of imprisonment of 60 months on Count 1 and 180 months on Count 3
(to be served concurrently), and 60 months on Count 2, to be served consecutively, for a
total aggregate term of 240 months imprisonment. The prison term is to be followed by a
4-year total term of supervised release. Additionally, Gatewood was ordered to pay a
$300.00 special assessment fee. United States v. Gatewood, No. 1:10-cr-7-JHM-HBB-1
(W.D. Ky. 2010).
Gatewood filed a direct appeal with the United States Court of Appeals for the Sixth
Circuit, raising claims that: (i) his Sixth Amendment right to a trial before an impartial jury
was violated; (ii) the trial court erred in denying his motion to suppress evidence; (iii) the
trial court improperly admitted evidence of a prior felony warrant and that he was not
completely truthful when questioned by law enforcement officers; and (iv) prosecutorial
misconduct occurred during closing arguments. The Sixth Circuit found that Gatewood’s
claims were without merit and confirmed his conviction and sentence. United States v.
Gatewood, No. 11-6162 (6th Cir. 2011).
Gatewood filed a motion to vacate, set aside or correct sentence pursuant to 28
U.S.C. § 2255 on March 31, 2014. He argued that his counsel was ineffective for failing
to seek to set aside the conviction for violating 18 U.S.C. § 924(c) due to the United States’
purported failure to establish that his possession of the gun was “in relation to” the

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predicate drug trafficking offense. However, the District Court denied Gatewood’s § 2255
motion. United States v. Gatewood, No. 1:10-cr-7-JHM-HBB-1 (W.D. Ky. 2010).
Gatewood filed a second § 2255 motion seeking relief pursuant to the United States
Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015). That motion
was transferred to the Sixth Circuit Court of Appeals. The Sixth Circuit denied Gatewood’s
request for permission to file a second or successive § 2255 motion, holding that Johnson
is inapplicable to his sentence because Johnson invalidated only the residual clause of the
Armed Career Criminal Act’s definition of “violent felony.” Gatewood’s sentence was
enhanced on the basis of his three prior serious drug offenses. In re. Jason M. Gatewood,
No. 16-5849 (6th Cir. 2016).
Gatewood filed yet another application for permission to file a second or successive
habeas petition in May 2017, arguing that his sentence is unconstitutional under Mathis v.
United States, 136 S. Ct. 2243 (2016), which addressed the circumstances under which a
state conviction constitutes a “violent felony” for purposes of 18 U.S.C. § 924(e). The
Sixth Circuit denied this request, finding that Mathis did not apply to Gatewood’s case
because his prior convictions were considered to be “serious drug offenses,” not “violent
felonies.” In re. Jason M. Gatewood, No. 17-5569 (6th Cir. 2017).
Gatewood now seeks relief from this Court via a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. [Record No. 1] Gatewood identifies the following four
“grounds” in support of his current petition: (1) the Indictment in his underlying criminal
case, United States v. Gatewood, No. 1:10-cr-7-JHM-HBB-1 (W.D. Ky. 2010), is “fatally
defective” because he did not have fair notice that he was being investigated by the Grand
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Jury, nor was he given the opportunity to challenge the “individual Grand Jurors
(composition selection process)” prior to the seating of the Grand Jury, in violation of his
Fifth and Sixth Amendment Due Process rights, his Fourth Amendment rights to be free
from “unlawful seizure,” and the Fifth Amendment “Fair Notice” doctrine; (2) the
Indictment was fatally defective “pursuant to the Government’s failure to allege that the
‘locus in quo’ where the alleged criminal act was alleged to have been committed was
within the exclusive legislative, territorial, admiralty, or maritime jurisdiction of the federal
‘United States,’” in violation of the “Fair Notice” doctrine and Gatewood’s rights under
the Fourth, Fifth, Sixth and Tenth Amendments of the United States Constitution; (3) the
Indictment was fatally defective because the federal government misapplied 18 U.S.C. §
922(a)(1), § 924(e) and 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D), as these statutes are not
published in the Federal Register in violation of the Administrative Procedures Act and the
Federal Register Act; and (4) 18 U.S.C. § 922(g)(1) is unconstitutional because Congress
“made no finding (rationally based or otherwise) nor placed any statutory requirement in
the section of an interstate commerce nexus between the mere possession of a gun and
crime,” nor did Congress base this statute “upon other appropriate findings that would
indicate Congressional authority to legislate in this area.” [Record No. 1].
II.
The Court conducts an initial review of habeas corpus petitions pursuant to 28
U.S.C. § 2243. Alexander v. Northern Bureau of Prisons, 419 F. App’x 544, 545 (6th Cir.
2011). A petition will be denied “if it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief.” Rule 4 of the Rules Governing § 2254
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Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule
1(b)). The Court evaluates Gatewood’s petition under a more lenient standard because he
is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007). At this
stage of the proceedings, the Court accepts the petitioner’s factual allegations as true and
construes all legal claims in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 55556 (2007).
Gatewood seeks an Order for his immediate release, as well as any other relief the
Court deems necessary. However, the claims raised in his § 2241 petition are simply not
the kind which may be pursued under this statutory section. Typically, a § 2241 petition
may only be used as a vehicle for challenges to 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. United States, 564 F.3d 442,
447 (6th Cir. 2009). A federal prisoner who instead wishes to challenge the legality of his
conviction or sentence must file a motion under § 2255. United States v. Peterman, 249
F.3d 458, 461 (6th Cir. 2001) (explaining the distinction between permissible uses for a
§ 2255 motion and a § 2241 petition). A prisoner may not resort to § 2241 to seek relief
even when § 2255 is not presently “available” to him, whether because he filed a timely
motion and was denied relief; he did not file a timely § 2255 motion; or he filed an untimely
motion. Copeland v. Hemingway, 36 F. App’x 793, 795 (6th Cir. 2002). 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).

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The “savings clause” of 28 U.S.C. § 2255(e) creates a narrow exception to this
prohibition. The Sixth Circuit has said that “the so-called ‘savings clause’ of section 2255
provides that if section 2255 is ‘inadequate or ineffective to test the legality of his detention
. . . then a federal prisoner may also challenge the validity of his conviction or sentence
under § 2241.” Bess v. Walton, 468 F. App’x 588, 589 (6th Cir. 2012) (citations and
quotation marks omitted).
However, Gatewood does not (and could not) rely on the “savings clause” of §
2255(e) to authorize his § 2241 petition. To properly invoke the savings clause, 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 reinterpreted 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 Peterman, 249 F.3d at 461-62); 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.
Gatewood is not relying on an intervening change in the law to attack his conviction
or sentence, nor does he otherwise meets the requirements set forth in Wooten. In fact,
Gatewood does not cite a single Supreme Court decision issued after 1995, much less
issued after his conviction became final. Rather, his claims consist of challenges to his
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conviction that he could and must have asserted before the trial court, either 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.
III.
For the reasons outlined above, it is hereby
ORDERED as follows:
1.

Petitioner Jason M. Gatewood’s petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2241 [Record No. 1] is DENIED.
2.

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

4.

Judgment shall be entered contemporaneously with this Memorandum

Opinion and Order.
This 27th day of September, 2017.

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