Sanford v. USA

Filing 4

MEMORANDUM OPINION & ORDER: 1. Sanford's petition for a writ of habeas corpus pursuant to 28:2241 (R. #1 ) is DENIED WITHOUT PREJUDICE. 2. This action is DISMISSED and STRICKEN from Court's docket. 3. A corresponding Judgment will be entered this date. Signed by Judge William O. Bertelsman on 10/14/2020. (TDA)cc: David Sanford by US Mail

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
DAVID SANFORD,
Petitioner,
v.
USA
Respondent.

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Civil Action No. 7: 20-125-WOB

MEMORANDUM OPINION
AND ORDER

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Petitioner David Sanford is a federal inmate currently confined at the United States
Penitentiary (“USP”)-Big Sandy located in Inez, Kentucky. Proceeding without counsel,
Sanford has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1] and
has paid the $5.00 filing fee required by 28 U.S.C. § 1914.
The Court is required to conduct an initial screening of § 2241 habeas petitions by 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)). See also Alexander, 419 F. App’x at 545 (applying the pleading standard set forth in
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), to habeas corpus petitions).
I.
In February 2004, pursuant to a plea agreement with the United States, Sanford pled
guilty in the United States District Court for the District of Maine to conspiracy to interfere
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with commerce by robbery (Hobbs Act robbery) in violation of 18 U.S.C. § 1951(a) (Count
1s); possession of a stolen firearm in violation of 18 U.S.C. § 922(j) (Count 3s); possession of
a firearm by a felon and armed career criminal in violation of 18 U.S.C. §§ 922(g)(1) and
924(e) (Count 4s); and possession of a controlled substance with intent to distribute in violation
of 21 U.S.C. § 841(a)(1) (Count 5s). In August 2004, Sanford was sentenced to 240-month
terms of imprisonment on each of Counts 1s, 4s, and 5s, and 120 months imprisonment on
Count 3s, all to be served concurrently for a total term of imprisonment of 240 months. United
States v. David Sanford, No. 1:03-cr-053-JAW (D. Maine 2003).1 Sanford’s conviction and
sentence were affirmed on appeal to the United States Court of Appeals for the First Circuit.
United States v. Sanford, No. 04-2125 (1st Cir. Dec. 28, 2005).
In April 2007, Sanford filed a motion to vacate, set aside or correct sentence pursuant
to 28 U.S.C. § 2255. The Court granted the Government’s motion to dismiss Sanford’s § 2255
petition based on a waiver in his plea agreement. Sanford v. United States, No. 1:07-cv-0050JAW (D. Maine 2007).2 In August 2015, Sanford filed a second or successive § 2255 petition
in the Maine District Court. However, the District Court stayed the matter while Sanford

This Court may “take judicial notice of proceedings in other courts of record.” See Rodic v.
Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th Cir.1980); Granader v. Public Bank, 417
F.2d 75, 82-83 (6th Cir. 1969). See also Fed. R. Evid. 201(b)(2).
2
Indeed, his waiver may also preclude this § 2241 petition, as Sanford agreed to waive “the right
to appeal or to collaterally challenge…the imposition by the District Court of a sentence which
does not exceed 240 months; and [the conviction in his criminal case] in the event that any
predicate conviction used to adjudicate him a Career Offender pursuant to U.S.S.G. §4B1.1 is
found invalid by any state or federal court.” Sanford v. United States, No. 1:07-cv-0050-JAW (D.
Maine 2007) at R. 4, p. 2, citing Sanford’s Revised Plea Agreement at ¶5, docketed at R. 109 in
United States v. David Sanford, No. 1:03-cr-053-JAW (D. Maine 2003). The waiver to bring
collateral challenges contained an exception for challenges “based on a right that has been newly
recognized by the Supreme Court and made retroactively applicable to cases on collateral review.”
Id.
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sought permission to proceed with a second § 2255 petition from the First Circuit.
Subsequently, Sanford and the Government filed a joint motion to dismiss his petition with the
First Circuit, which was granted.3 Accordingly, the District Court likewise dismissed his
second § 2255 petition. Sanford v. United States, 1:15-cv-0367-JAW (D. Maine 2015).
II.
Sanford has now filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2241 in this Court. As grounds for his petition, Sanford states that “new Supreme Court rulings
have declared ‘conspiracy to commit Hobbs Act robbery’ non-violent.” [R. 1 at p. 2] The
only further explanation for the basis of his claim is as follows:
Two new Supreme Court rulings have ruled that my main charge ‘conspiracy to
commit Hobbs Act robbery’ is a non-violent crime. Offense (instant) level
would be much less. My ordinary Guideline computations had my adjusted
offense level was (28) that is with my instant offense being a crime of violence
resulting in a much higher level. I’ve served 90% of my 240 month sentence
would be released with any amount of recalculation.
[R. 1 at p. 6] Sanford requests that this Court adjust his offense level, which he claims would
result in a lower criminal history category, a lower Sentencing Guidelines range and a lower
sentence. [Id. at p. 8]
A federal prisoner generally may not use a § 2241 petition to challenge the enhancement
of his sentence. See United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001). Rather, a
prisoner who wishes to challenge the legality of his conviction or sentence must file a motion
under § 2255. Id. (explaining the distinction between a § 2255 motion and a § 2241 petition).

The parties’ joint motion was based on the parties’ agreement that, while Sanford was no longer
subject to the Armed Career Criminal Act (the “ACCA”), his Career Offender status remains
unaffected under current law. Sanford v. United States, No. 16-1073 (1st Cir. 2016), Joint Motion
to Dismiss Case.
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The “savings clause” of 28 U.S.C. § 2255(e) creates an extraordinarily narrow exception to
this prohibition if the remedy afforded by § 2255 is “inadequate or ineffective” to test the
legality of the prisoner’s detention. Truss v. Davis, 115 F. App’x 772, 773-74 (6th Cir. 2004).
A motion under § 2255 is not “inadequate or ineffective” simply because the prisoner’s time
to file a § 2255 motion has passed; he did not file a § 2255 motion; or he did file such a motion
and was denied relief. Copeland v. Hemingway, 36 F. App’x 793, 795 (6th Cir. 2002); Taylor
v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002) (holding that § 2241 is available “only when a
structural problem in § 2255 forecloses even one round of effective collateral review...”).
Rather, to properly invoke the savings clause, the petitioner must be asserting a claim that he
is “actually innocent” of the underlying offense by showing that, after the petitioner’s
conviction became final, the United States Supreme Court issued a retroactively applicable
decision re-interpreting 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), or establishing that – as a matter of statutory
interpretation – a prior conviction used to enhance his or her federal sentence no longer
qualifies as a valid predicate offense. Hill v. Masters, 836 F.3d 591, 599-600 (6th Cir. 2016).
However, “a federal prisoner cannot bring a claim of actual innocence in a § 2241 petition
through the saving clause without showing that he had no prior reasonable opportunity to bring
his argument for relief.” Wright v. Spaulding, 939 F.3d 695, 705 (6th Cir. 2019)
Here, Sanford challenges the classification of his conspiracy to commit Hobbs Act
robbery conviction for sentencing purposes. The decidedly narrow scope of relief under §
2241 applies with particular force to challenges not to convictions, but to the sentence
imposed. Peterman, 249 F.3d at 462; Hayes v. Holland, 473 F. App’x 501, 502 (6th Cir. 2012)
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(“The savings clause of section 2255(e) does not apply to sentencing claims.”). To be sure,
there is a very limited exception under which federal prisoners have been permitted to
challenge their sentences in a § 2241 petition. However, the United States Court of Appeals
for the Sixth Circuit has explained that a prisoner may only proceed in this manner if he can
show: “(1) a case of statutory interpretation, (2) that is retroactive and could not have been
invoked in the initial § 2255 motion, and (3) that the misapplied sentence presents an error
sufficiently grave to be deemed a miscarriage of justice or a fundamental defect.” Hill, 836
F.3d at 595. In addition, the retroactive case of statutory interpretation on which the petitioner
relies must be a United States Supreme Court decision, not a decision from a United States
Court of Appeals. See Hill, 836 F.3d at 600 (limiting its decision to cases involving “a
subsequent, retroactive change in statutory interpretation by the Supreme Court”); see also
Hueso v. Barnhart, 948 F.3d 324 (6th Cir. 2020) (holding that a prisoner may not seek habeas
relief under § 2241 based solely on a federal circuit court case; rather, the retroactive case of
statutory interpretation on which the prisoner relies must come from the Supreme Court).
While Stanford purports to rely on “two new Supreme Court rulings,” he makes no
effort to identify the cases upon which he relies, nor does he adequately explain how the
holdings in those cases apply to him. Pro se pleadings are liberally construed, Haines v.
Kerner, 404 U.S. 519, 596 (1972), but the Court cannot create claims or allegations that the
plaintiff has not made. Brown v. Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011) (“a court
cannot create a claim which [a plaintiff] has not spelled out in his pleading.”); Nali v. Ekman,
355 F. App’x 909, 912 (6th Cir. 2009) (Sutton, J., dissenting) (“when a pro se litigant asks us
to identify any potentially winning arguments in his lower court pleadings, he is asking us to
create, not correct, potential disparities in the legal system.”); Coleman v. Shoney’s, Inc., 79
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F. App’x 155, 157 (6th Cir. 2003) (“Pro se parties must still brief the issues advanced with
some effort at developed argumentation.”).
Because it is the habeas petitioner’s burden to show that he may be entitled to relief,
Sanford’s failure to identify the specific Supreme Court decisions on which he relies fails to
satisfy this burden. This failure alone is a sufficient reason to deny his petition on preliminary
review. However, Sanford’s argument is also without merit. According to Sanford’s petition,
if his “conspiracy to commit Hobbs Act robbery” conviction is no longer a violent crime, his
offense level would be reduced, which would then reduce his Guideline sentence. [R. 1 at p.
6] Sanford states that his adjusted offense level was a 28, but that this was “with my instant
offense being a crime of violence resulting in a much higher level.” [Id.]
However, in this case, the sentencing court has specifically explained Sanford’s
Sentencing Guidelines calculation. See United States v. David Sanford, No. 1:03-cr-053-JAW
(D. Maine 2003) at R. 169. In a Status Order denying Sanford’s motion for reduction of
sentence under Amendment 782 of the Sentencing Guidelines, the Court found that
Amendments 782 and 788 would not change Sanford’s Guidelines calculation, explaining that:
In making this conclusion, the Court unpacked Mr. Sanford’s Guidelines
calculations, which resulted in a total offense level of 32. The Court arrived at
this calculation by starting with a base offense level of 24 under United States
Sentencing Guidelines (U.S.S.G.) § 2K2.1(a)(1) for a violation of 18 U.S.C. §
922(g)(1), the felon in possession charge. Tr. of Proceedings, Continuation of
Sentencing Proceedings 20:24-21:2 (ECF No. 134). The Court added the
following enhancements: (1) a two level enhancement under U.S.S.G. §
2K2.1(b)(4) because the offense involved a stolen firearm, and (2) a four-level
enhancement under U.S.S.G. § 2K2.1(b)(5) because Mr. Sanford possessed the
firearm in connection with another felony offense, bringing the offense level to
30. Id. 21:3-10. Mr. Sanford was entitled to a two-level reduction under
U.S.S.G. § 3E1.1(a), bringing the offense level down to 28. Id. 21:11-14.
However, at the time of the sentencing hearing, Mr. Sanford was considered an
armed career criminal, and the Guidelines therefore required that the offense
level be increased to 34 under U.S.S.G. § 4B1.4. Id. 21:15-19. Reducing this
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offense level by two under U.S.S.G. § 3E1.1(a), the adjusted total offense level
was 32. Id. 21:20-23. As Mr. Sanford’s criminal history category was VI, the
Guidelines range for imprisonment was 210 to 262 months. Id. 21:24-22:3. The
Court’s sentence of 240 months was a Guidelines sentence.
In his § 2255 petition, Mr. Sanford challenged the sentencing determination that
he was an armed career criminal under Johnson v. United States, 576 U.S. __,
135 S. Ct. 2551 (2015). As part of their stipulated dismissal, the parties agreed
that “Mr. Sanford is no longer subject to the Armed Career Criminal Act (the
“ACCA”) but that his current Career Offender sentence remains unaffected
under current law.” Stip. Mot. to Dismiss at 1. Under U.S.S.G. § 4B1.1(b)(2),
the Career Offender Guidelines provision, if the maximum sentence for the
offense was 25 years or more, the offense level would be fixed at 34. Here, the
maximum sentence for Count Five, the possession of a controlled substance
offense count, was 30 years. Therefore, the same offense level and Guidelines
range applicable under U.S.S.G. § 4B1.4, the Armed Career Criminal
Guidelines provision, would apply under his acknowledged career offender
status. See U.S.S.G. § 4B1.1(b)(2).
See United States v. David Sanford, No. 1:03-cr-053-JAW (D. Maine 2003) at R. 169, p. 3-5.
Thus, according to the Court that sentenced him, his offense level was not affected by
a classification of his conspiracy to commit Hobbs Act robbery conviction as a “crime of
violence.” Rather, his offense level of 34 was originally driven by: 1) his status as a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1); 2) his possession of a stolen
firearm in violation of 18 U.S.C. § 922(j); 3) the enhancement applicable under U.S.S.G. §
2K2.1(b)(5) because he possessed a firearm in connection with another felony offense;4 and 4)
his status as an armed career criminal. Even after the parties agreed that Sanford was no longer
subject to the ACCA, his offense level remained 34 because of the maximum sentence for his

At the time of Sanford’s Sentencing, U.S.S.G. § 2K2.1(b)(5) provided that “[i]f the defendant
used or possessed any firearm or ammunition in connection with another felony offense; or
possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe
that it would be used or possessed in connection with another felony offense, increase by 4 levels.”
U.S.S.G. § 2K2.1 (effective November 1, 2003). Thus, this enhancement only required that the
firearm be used in connection with another felony offense, not necessarily a “crime of violence.”
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possession of a controlled substance offense.5 For this reason, even if Sanford is correct that
his conspiracy to commit Hobbs Act robbery is no longer a “crime of violence,” this finding
would not entitle him to the relief he seeks, which is a recalculation of his Sentencing
Guidelines based on a lower offense level.
For all of these reasons, Sanford’s claims do not fall within the limited exception
recognized by Hill and Wright, and, therefore, he may not challenge his convictions in this §
2241 proceeding.
Accordingly, it is hereby ORDERED as follows:
1.

Sanford’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R.
1] is DENIED WITHOUT PREJUDICE.

2.

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

3.

A corresponding Judgment will be entered this date.

This 14th day of October, 2020.

The sentencing court further explained that “Count Five of the Superseding Indictment alleged a
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) for the knowing possession with the intent to
distribute oxycodone, a Schedule II controlled substance. Superseding Indictment (ECF No. 51).
The maximum sentence for Count Five was not more than thirty years imprisonment. Revised
Agreement to Plead Guilty at 2 (ECF No. 109).” See United States v. David Sanford, No. 1:03cr-053-JAW (D. Maine 2003) at R. 169, p. 5 FN4.
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