Benavides v. Kizziah

Filing 9

MEMORANDUM OPINION & ORDER: 1. Benavidess petition for a writ of habeas corpus, R. 1 is DENIED. 2. This action is DISMISSED and STRICKEN from the Courts docket. 3. A Judgment shall be entered contemporaneously with this Memorandum Opinion and Order. Signed by Judge Karen K. Caldwell on 9/29/17.(MJY) cc: COR, Benavides via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
BENITO BENAVIDES,
Petitioner,

Civil Action No. 7: 16-271-KKC

V.
GREGORY KIZZIAH, Warden,

MEMORANDUM OPINION
AND ORDER

Respondent.

*** *** *** ***
In October 2011 Benito Benavides, along with more than a dozen other members of the
Texas Mexican Mafia, was charged in a nine-count indictment for his leadership role in a conspiracy
to engage in racketeering, drug trafficking, and use of firearms in furtherance of the criminal
enterprise in Del Rio, Texas. Benavides reached a plea agreement with the government, and in July
2013 was sentenced to 240 months imprisonment for conspiracy to conduct the affairs of an
enterprise through a pattern of racketeering in violation of 18 U.S.C. § 1962(d). Benavides filed no
direct appeal, and his motion to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255 was
dismissed as untimely. United States v. Benavides, No. 2: 11-CR-1882-AM-3 (W.D. Tex. 2011).
Benavides, now a federal inmate in Kentucky, has filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 challenging his federal sentence. [R. 1] The Court must
conduct an initial review of Benavides’s petition. 28 U.S.C. § 2243; Alexander v. Northern Bureau of
Prisons, 419 F. App’x 544, 545 (6th Cir. 2011).
In his petition, Benavides alleges that his sentence was enhanced pursuant to U.S.S.G.
§ 4B1.1(a) because of his prior convictions for possession of a controlled substance and aggravated
assault with a deadly weapon. [R. 1-1 at 6, 9] His petition is devoid of any specifics regarding the

particulars of his federal offense, his prior state offenses, or the basis for the calculation of his
federal sentence. Instead, it consists entirely of conclusory and generic arguments that his federal
sentence ran afoul of Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015); Welch v. United States,
__ U.S. __, 136 S. Ct. 1257 (2016); Beckles v. United States, __ U.S. __, 137 S. Ct. 886 (2017); United
States v. Hinkle, 832 F.3d 569, 572-73 (5th Cir. 2016); Mathis v. United States, __ U.S. __, 136 S. Ct.
2243 (2016). Benavides also invokes Hill v. Masters, 836 F. 3d 591 (6th Cir. 2016) to contend that he
may assert these claims in a § 2241 petition. Because none of these decisions afford Benavides any
basis for relief, his petition will be denied.
In Johnson, the Supreme Court concluded that the residual clause found in 18 U.S.C.
§ 924(e)(2)(B) was void for vagueness. That subsection provided a catch-all definition for various
kinds of prior offenses which could be used to enhance a sentence as an “armed career criminal” for
one convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). But
Benavides was not convicted under § 922(g) nor was his sentence enhanced pursuant to § 924(e)(1),
and therefore Johnson does not apply to him.
In addition, in Welch the Supreme Court held that Johnson announced a new rule of
constitutional law, and hence is retroactively applicable to cases on collateral review. Precisely for
that reason, inmates wishing to invoke Johnson as grounds to challenge their federal sentence could
have done so by requesting and obtaining permission to file a second or successive motion under
§ 2255. See § 2255(h)(2); In re Watkins, 810 F. 3d 375, 377 (6th Cir. 2015). Because Benavides and
other prisoners could assert claims based upon Johnson under § 2255, that remedy is plainly not
structurally “inadequate and ineffective” to test the legality of their detention, and resort to § 2241 is
impermissible. Truss v. Davis, 115 F. App’x 772, 773-74 (6th Cir. 2004); McDowell v. Warden, FCC
Medium Coleman, 2017 WL 2352000, at *2-3 (11th Cir. May 31, 2017).
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While Benavides invokes Beckles as a ground for relief, that decision precludes the very relief
he seeks rather than assisting him. Benavides suggests that Johnson invalidated the similarly-worded
“residual clause” found in the career offender provision used to enhance his sentence, U.S.S.G.
§ 4B1.2(a)(2), as unconstitutionally vauge. But in Beckles the Supreme Court rejected the argument
that the advisory sentencing guidelines are even susceptible to a vagueness challenge. Because
Benavides was sentenced in 2013, long after United States v. Booker, 543 U.S. 220 (2005) rendered the
guidelines advisory rather than mandatory, Beckles dooms his vagueness challenge to U.S.S.G.
§ 4B1.2(a)(2). Beckles, 137 S. Ct. 899-901.
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. 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, 2017 WL 4159184
(6th Cir. 2017). Therefore Mathis, and the Fifth Circuit’s decision in Hinkle which is based upon it,
do not assist Benavides either.
Finally, 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 in rare cases where (1) the petitioner’s sentence
was imposed when the Sentencing Guidelines were mandatory before the Supreme Court’s decision
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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. With respect to Benavides’s Mathis claim, he fails to
satisfy the threshold requirement of Hill because he was sentenced in 2013, nearly a decade after
Booker rendered the Sentencing Guidelines advisory rather than mandatory. Benavides’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. His petition must therefore be denied.
Accordingly, IT IS ORDERED that:
1.

Benavides’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.

A Judgment shall be entered contemporaneously with this Memorandum Opinion

and Order.
Dated September 29, 2017.

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