Culbertson v. Hutchings

Filing 5

MEMORANDUM OPINION & ORDER: 1. Harlan Culbertson' petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1] is DENIED. 2. This action is DISMISSED and STRICKEN from the Courts docket. 3. The Court shall enter a Judgment contemporaneously with this Memorandum Opinion and Order. Signed by Judge Karen K. Caldwell on 11/20/2017.(KJA)cc: COR, mailed paper copy to pro se filer

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
HARLAN CULBERTSON,

Civil Action No. 6: 17-203-KKC

Petitioner,
V.

MEMORANDUM OPINION
AND ORDER

WILLIAM HUTCHINGS, Warden,
Respondent.

*** *** *** ***
In February 2008, a federal jury in Greenville, Tennessee found Harlan Culbertson guilty
of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Because
Culbertson had numerous prior convictions, including six for felony drug offenses, he qualified as
a career offender subject to a mandatory minimum term of 15 years imprisonment pursuant to 18
U.S.C. § 924(e)(1), with an advisory guideline range of 235 to 293 months imprisonment. The
trial court overruled Culbertson’s objections to the career offender designation and imposed a 240month sentence. Culbertson challenged only his conviction on direct appeal. The Sixth Circuit
affirmed the conviction in 2010.
In his initial motion for relief filed pursuant to 28 U.S.C. § 2255, Culbertson renewed his
challenge to the career offender enhancement, the trial court denied relief and the Sixth Circuit
declined to issue a certificate of appealability. In 2016, the Sixth Circuit denied another 2255
challenge to his sentence under Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015). The
court states that Culbertson’s sentence was enhanced for prior drug convictions, not prior violent
felonies. United States v. Culberston, No. 2: 07-CR-67-JRG-MCLC-1 (E.D. Tenn. 2007).

1

Culbertson now petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The
bulk of the petition suggests that Culbertson seeks relief from his sentence pursuant to Mathis v.
United States, __ U.S. __, 136 S. Ct. 2243 (2016) and Hill v. Masters, 836 F. 3d 591 (6th Cir.
2016) because his sentence was improperly enhanced pursuant to U.S.S.G. § 4B1.1. Culbertson
states without explanation that Virginia Code § 18-248 is an indivisible statute and is broader than
the comparable guidelines offense. [R. 1]
The Court must conduct 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). 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 Cases in the United States District Courts
(applicable to § 2241 petitions pursuant to Rule 1(b)). The Court evaluates Culbertson’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, 555-56 (2007). The Court will deny Culbertson’s petition because he cannot assert his
Mathis claim in a § 2241 petition, and because that claim is without merit even if he could.
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 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. 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.

2

Cauley, 677 F.3d 303, 307-08 (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 expressly so held. In
re: Conzelmann, 872 F. 3d 375, 376-77 (6th Cir. 2017). Therefore Culbertson’s Mathis claim is
not cognizable in a § 2241 petition.
In Hill, the Sixth Circuit held that contrary to the general rule, a § 2241 petition may be
used to challenge the enhancement of a sentence only in rare cases 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. Culbertson cannot
invoke Mathis in a § 2241 petition because he was sentenced in 2008, seven years after Booker
rendered the Sentencing Guidelines advisory rather than mandatory. Nor was Culbertson’s
sentence imposed pursuant to § 924(e)(1)’s 15-year mandatory minimum; instead, the 240-month
sentence actually imposed was based upon his offense level and criminal history category. And
as noted above, Mathis is not retroactively applicable to cases on collateral review for purposes of
§ 2241. Culbertson’s claim therefore falls outside the decidedly narrow exception set forth in Hill,
and his sentencing claim therefore does not fall within the narrow scope of Section 2255(e)’s
savings clause. Peterman, 249 F.3d at462.
Finally, Culbertson’s claim under Mathis is without merit. As an initial matter, Mathis
dealt with the “violent felony” provision of the ACCA, and numerous courts have held that Mathis

3

affords no basis for relief to petitioners like Culbertson whose sentences were instead subject to
enhancement based on prior convictions for drug offenses. Cf. United States v. Brunson, No. 3:
12-CR-113, 2017 WL 1250996, at *2 (E.D. Va. Apr. 3, 2017); United States v. Jeffery, No. 14CR-20427-01, 2017 WL 764608, at *2 (E.D. Mich. Feb. 28, 2017).
Mathis does not undermine the trial court’s conclusion that Culbertson’s prior drug
offenses constituted “serious drug offenses.” During sentencing proceedings, the probation office
concluded that Culbertson had six prior convictions for drug trafficking, including four convictions
in 2002 for possession of cocaine with intent to distribute in Virginia. The pertinent Virginia
statute provides that “it shall be unlawful for any person to manufacture, sell, give, distribute, or
possess with intent to manufacture, sell, give or distribute a controlled substance or an imitation
controlled substance.” Va. Code § 18.2-248(A). The conduct proscribed by Virginia statute is
nearly identical to the language of 18 U.S.C. § 924(e)(2)(A)(ii), which defines a “serious drug
offense” as a state offense involving the manufacture, distribution, or possession with intent to
manufacture or distribute a controlled substance that is punishable by a maximum of ten years or
more imprisonment.
Because cocaine is a schedule II substance under Virginia law, Culbertson faced a sentence
of five to forty years imprisonment under Virginia law. Va. Code § 18.2-248(C). His convictions
thus satisfied § 924(e)(2)(A)(ii)’s requirement that he faced ten or more years imprisonment. And
consistent with § 924(e), Va. Code § 18.2-248(A) prohibits the manufacture, distribution, or
possession with intent to manufacture or distribute a controlled substance. While the Virginia
statute includes selling or giving drugs within its prohibition, those terms connote merely
alternative forms of the “distribution” of a controlled substance, and hence violation of the Virginia
statute qualifies as a valid predicate for purposes of the ACCA. Courts in the Fourth Circuit have

4

consistently so held, both before and after Mathis was decided. United States v. Boysaw, 198 F.
App’x 321, 324 (4th Cir. 2006); Lee v. United States, 89 F. Supp. 3d 805, 812-13 (E.D. Va. 2015);
United States v. Holloway, No. 5:09-CR-30, 2017 WL 1483440, at *2-3 (W.D. Va. Apr. 24, 2017);
Tarik Khalil Long v. United States, No. , 2017 WL 4799798, at *3-4 (E.D. Va. Oct. 23, 2017)
(concluding that conviction under Va. Code § 18.2-248(A) constitutes a “controlled substance
offense” under the functionally-identical U.S.S.G. § 4B1.2(b)). See also United States v. Barker,
No. 7:13-CR-72, 2016 WL 6441580, at *1-2 (W.D. Va. Oct. 28, 2016), vacated and remanded on
other grounds, 692 F. App’x 724 (4th Cir. 2017).
For each of these reasons, Culbertson’s petition must be denied.
Accordingly, IT IS ORDERED as follows:
1.

Harlan Culbertson’s petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2241 [R. 1] is DENIED.
2.

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

3.

The Court shall enter a Judgment contemporaneously with this Memorandum

Opinion and Order.
Dated November 20, 2017.

5