Robinson v. Warden, USP Big Sandy

Filing 18

MEMORANDUM OPINION AND ORDER: 1. Robinson's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 1 is DISMISSED for lack of subject-matter jurisdiction. 2. This action is DISMISSED and STRICKEN from Court's docket. Signed by Judge Danny C. Reeves on 10/5/2021. (RCB)cc: COR and Zhivago Anwah Robinson by US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at Pikeville)
ZHIVAGO ANWAH ROBINSON,
Petitioner,
v.
WARDEN, USP-BIG SANDY,
Respondent.

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Civil Action No. 7: 21-046-DCR

MEMORANDUM OPINION
AND ORDER

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Proceeding without counsel, Petitioner Zhivago Anwah Robinson has filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking relief from his federal
sentence. [Record No. 1] The Warden at USP-Big Sandy has filed his response to the petition
[Record No. 10] to which Robinson has filed a reply. [Record No. 16] The matter is ripe for
review.
I.
In October 2008, Robinson was convicted by a jury in the United States District Court
for the District of South Carolina of one count of conspiracy to possess with intent to distribute
500 grams or more of cocaine and 50 grams or more of crack cocaine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(B) and 846 (Count One); one count of being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and 924(e) (Count
Six); and one count of possession with intent to distribute and distribution of a quantity of
cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count Eight). United
States v. Robinson, No. 0:08-cr-401-CMC-2 (D.S.C. 2008). Prior to trial, the government filed
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an Information under 21 U.S.C. § 851, notifying Robinson that he was subject to increased
penalties based upon prior drug convictions, specifically: (1) June 2000 South Carolina
convictions for possession of crack and possession of crack with intent to distribute in
proximity of a park and (2) October 2001 South Carolina convictions for possession of crack
with intent to distribute 3rd and possession of crack with intent to distribute in proximity of a
school. Id. at Record No. 24.
As set forth in the Presentence Investigation Report (“PSR”), because of the quantity
of drugs for which the jury held Robinson individually responsible, coupled with his two prior
convictions for felony drug offenses and the Government’s filing of an § 851 Information for
increased penalties, Robinson faced a statutory mandatory minimum sentence of 10 years to a
maximum sentence of Life on Count One; a maximum sentence of 10 years on Count Six; and
a maximum sentence of 30 years on Count Eight. [Record No. 12, PSR at p. 1-2, 25] The PSR
also noted that Robinson qualified as a “Career Offender” under U.S.S.G. § 4B1.1(a) as a result
of his prior felony controlled substance offenses. [Id. at p. 14-17] Based on a Total Offense
Level of 37 and a Criminal History Category of VI, the PSR recommended a guideline range
for imprisonment of 360 months to life. [Id. at p. 25]
In May 2009, Robinson was sentenced to terms of imprisonment of 360 months as to
Counts 1 and 8 and 120 months as to Count 6, all to run concurrently, for a total term of
imprisonment of 360 months. United States v. Robinson, No. 0: 08-CR-401-CMC-2 (D.S.C.
2008) at Record No. 161.1 Robinson appealed his sentence to the United States Court of

1

In February 2019, the sentencing court granted Robinson’s motion for a reduction in sentence
under the First Step Act of 2018. It issued an amended Judgment reducing Robinson’s
sentence to terms of imprisonment of 268 months on Counts One and Eight and 120 months
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Appeals for the Fourth Circuit, arguing that his sentence was erroneous “because his predicate
offenses for the career offender designation involved small amounts of drugs, no firearms, and
no violence.” United States v. Robinson, No. 09-4425 (4th Cir. Aug. 11, 2010 Opinion).
However, the Circuit Court affirmed his sentence. Id.
Robinson filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255 on August 1, 2011. United States v. Robinson, No. 0: 08-CR-401-CMC-2 (D.S.C.
2008) at Record No. 238-1. Robinson argued that: (i) the sentencing court committed a
“procedural error” by confusing the provisions of 21 U.S.C. § 851 with the Career Offender
provisions of the sentencing guidelines, id. at p. 5-7; (ii) his 2000 convictions should not have
counted towards his Career Offender designation because his 10-year suspended sentence
could not count as a “sentence of imprisonment” exceeding one year and one month, id. at p.
8-9; and (iii) his counsel was ineffective. Id. at p. 9-17. His motion was dismissed in
December 2011. Id. at Record No. 259. Robinson appealed to the United States Court of
Appeals for the Fourth Circuit, but the Circuit Court denied a Certificate of Appealability and
dismissed the appeal. United States v. Robinson, No. 12-6012 (4th Cir. June 5, 2012 Opinion).
Thereafter, Robinson’s petition for a Writ of Certiorari was denied by the United States
Supreme Court. Id.
In June 2014, Robinson filed a motion with the United States Court of Appeals for the
Fourth Circuit requesting authorization to file a second or successive § 2255 motion. Robinson
argued that he was entitled to relief from his sentence in light of the Fair Sentencing Act of
2010 and that he no longer qualifies as a Career Offender under the Supreme Court’s decision

on Count Six, to run concurrently, for a total term of imprisonment of 268 months. United
States v. Robinson, No. 0: 08-CR-401-CMC-2 (D.S.C. 2008) at Record No. 384.
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in Descamps v. United States, 570 U.S. 254 (2013). Robinson’s motion was denied. United
States v. Robinson, No. 14-307 (4th Cir. July 3, 2014 Order).
Since that time, Robinson has filed multiple motions and habeas petitions seeking relief
from his sentence in both the sentencing court and other United States District Courts. These
motions have been either dismissed or denied. See United States v. Robinson, No. 0: 08-CR401 (D.S.C. 2008) at Record No. 332 (denying motion for reduction of sentence filed pursuant
to 18 U.S.C. § 3582(c)(2)); Robinson v. Warden, No: 1: 17-CV-110 (N.D.W.V. 2017) (§ 2241
petition arguing that Robinson’s South Carolina drug convictions no longer qualified as careeroffender predicates in light of Mathis v. United States, 136 S.Ct. 2243 (2016); dismissed for
failure to use the proper form); Robinson v. Hazelwood, No. 1: 18-CV-10351 (D. Mass. 2018)
(§ 2241 petition arguing he was improperly sentenced as a Career Offender; transferred to the
District of New Hampshire, No. 1: 18-CV-568 (D.N.H. 2018), and dismissed as duplicative of
another § 2241 petition previously filed by Robinson in that Court); Robinson v. Warden, No.
1: 18-CV-287 (D.N.H. 2018) (§ 2241 petition challenging Career Offender designation in light
of Mathis; dismissed for lack of jurisdiction on the grounds that 28 U.S.C. § 2255 is not
inadequate or ineffective to test the legality of Robinson’s detention); United States v.
Robinson, 0: 08-CR-401-CMC (D.S.C. 2008) at Record No. 405 (second or successive motion
to vacate his sentence under 28 U.S.C. § 2255 filed in October 2019, arguing that Robinson is
“actually innocent” of being a Career Offender in light of United States v. Havis, 927 F.3d 382
(6th Cir. 2019); dismissed for lack of jurisdiction because Robinson could not satisfy the
requirements of the savings clause of 28 U.S.C. § 2255(e) and because Robinson had not
obtained permission from the Fourth Circuit Court of Appeals prior to filing).

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He has now turned his efforts to this Court. In his § 2241 petition filed in this case,
Robinson once again challenges his designation as a Career Offender, arguing that he is
entitled to relief in light of Descamps, Mathis, and United States v. Simmons, 649 F.3d 237
(4th Cir. 2011). [Record No. 1] Specifically, he argues that, at sentencing, the district court
erred in failing to conduct a colloquy required under 21 U.S.C. § 851(b). [Record No. 1-1 at
p. 11] He also argues that the sentencing court improperly relied upon the PSR at sentencing
because the PSR is not a “charging document, a plea agreement or colloquy, or a comparable
judicial record” as permitted by Shepard v. United States, 544 U.S. 13 (2005), and that the
reliance upon the description of his prior convictions in the PSR, without confirming with
Robinson if he affirmed or denied its accuracy, is “inconsistent with the Court’s holding in
Descamps.” [Id. at p. 23-24] Robinson further argues that, in light of Simmons, his prior
conviction for violating South Carolina Code § 44-53-445 no longer qualifies as a “controlled
substance offense” under the Career Offender provisions of the guidelines, nor does it qualify
as a “felony drug offense” under 21 U.S.C. § 851, because he received a 10-year suspended
sentence, not a term of imprisonment. [Id. at p. 24-25]
Robinson invokes the “savings clause” of 28 U.S.C. § 2255(e) to contend that he may
assert these challenges to his sentence in a § 2241 petition. However, the Court will dismiss
Robinson’s § 2241 petition for lack of subject-matter jurisdiction because he cannot show that
a motion under § 2255 is inadequate or ineffective to test his conviction or sentence. See
Taylor v. Owens, 990 F.3d 493 (6th Cir. 2021).
II.
While 28 U.S.C. § 2241 “grants federal courts the authority to issue writs of habeas
corpus to prisoners whose custody violates federal law,” Taylor, 990 F.3d at 495, section
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2441’s applicability is severely restricted by 28 U.S.C. § 2255. Id. “[S]ection 2241 typically
facilitates only challenges to ‘the execution or manner in which the sentence is served’ – those
things occurring within the prison.” Id. (quoting Charles v. Chandler, 180 F.3d 753, 755-56
(6th Cir. 1999) (per curiam)). In contrast, “section 2255 now serves as the primary means for
a federal prisoner to challenge his conviction or sentence – those things that were ordered in
the sentencing court.” Taylor, 990 F.3d at 495. Thus, a federal prisoner generally may not
use a § 2241 petition to challenge his conviction or the enhancement of his sentence. See
United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001). Instead, a prisoner who wishes
to challenge the legality of his conviction or sentence must file a motion under § 2255 in the
court that sentenced him. Id. (explaining the distinction between a § 2255 motion and a § 2241
petition).
The “savings clause” of 28 U.S.C. § 2255(e) creates an extraordinarily narrow
exception to the prohibition against challenging a conviction or sentence in a § 2241 petition,
allowing such 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).
But 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).
Rather, to properly invoke the savings clause, a petitioner challenging his sentence must show
that, after the petitioner’s conviction became final, the United States Supreme Court issued a
retroactively applicable decision 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).
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In Hill, the Sixth Circuit clarified that a prisoner may only challenge his sentence in a
§ 2241 petition filed pursuant to § 2255(e) if he can demonstrate: “(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. Moreover, “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).
Because the savings clause of § 2255(e) is a jurisdictional bar that a petitioner must
clear prior to bringing a challenge to his conviction or sentence in a § 2241 proceeding, the
failure to do so mandates dismissal of the § 2241 petition for lack of subject-matter
jurisdiction. Taylor, 990 F.3d at 499-500 (“Unless [the petitioner] proves that a section 2255
motion is inadequate or ineffective to challenge his sentence, no court may entertain his
application for a writ of habeas corpus under section 2241.”).
Robinson does not meet these requirements. First, in Hill, the Sixth Circuit further
expressly limited its decision to “prisoners who were sentenced under the mandatory
guidelines regime pre-United States v. Booker, 543 U.S. 220 (2005).” Hill, 836 F.3d at
599. Robinson was sentenced in 2009, well after the Supreme Court’s 2005 decision in
Booker rendered the sentencing guidelines advisory rather than mandatory. See Loza-Gracia
v. Streeval, No. 18-5923, 2019 WL 4199908, at *2 (6th Cir. Mar. 12, 2019) (“Loza-Gracia
cannot proceed under Hill because he was sentenced in 2011, long after the Supreme Court’s
January 2005 Booker decision made the guidelines advisory rather than mandatory.”);
Contreras v. Ormond, No. 18-5020 (6th Cir. Sept. 10, 2018) (“[The petitioner’s] case does not
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fall within the narrow exception recognized by Hill because he was sentenced post Booker in
2009, under the advisory sentencing guidelines.”); Arroyo v. Ormond, No. 17-5837 (6th Cir.
April 6, 2018) (holding that since the petitioner was sentenced after Booker, his “claim does
not fall within Hill’s limited exception for bringing a § 2241 habeas petition to challenge a
federal sentence”). In a subsequent decision, the Sixth Circuit permitted a prisoner to
challenge his sentence enhancement in a § 2241 petition, even though he was sentenced under
the advisory guidelines, where his sentence was above the otherwise applicable statutory
maximum sentence. McCormick v. Butler, 977 F.3d 521, 528-29 (6th Cir. 2020). However,
McCormick is unavailing to Robinson because his sentence did not exceed the applicable
statutory maximum sentence, which was life imprisonment.
In addition, Robinson’s argument that his 2000 drug conviction does not qualify as a
“felony drug offense” for purposes of a sentencing enhancement because he received a
suspended sentence relies upon the Fourth Circuit Court of Appeals’ decision in United States
v. Simmons, 649 F.3d 237 (4th Cir. 2011).2 Simmons, however, is not a retroactive change in
statutory interpretation by the Supreme Court that is applicable to Robinson, as is required for
him to raise such a claim in a § 2241 proceeding via the savings clause. In Hueso v. Barnhart,
948 F.3d 324 (6th Cir. 2020), the Sixth Circuit made clear that “[i]n addition to whatever else
our reasonable-opportunity standard demands, it requires a Supreme Court decision that adopts

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In Simmons, the Circuit Court held that the defendant’s prior North Carolina conviction for
possession with intent to distribute marijuana did not constitute a predicate “felony drug”
conviction for purposes of the sentencing enhancement set forth in § 841(b)(1) because, under
the “unique statutory regime mandated by the North Carolina Structured Sentencing Act,” the
defendant could not have received a sentence in excess of twelve months for his North Carolina
conviction. Simmons, 649 F.3d at 240.
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a new interpretation of a statute after the completion of the initial § 2255 proceedings.” Id. at
333 (emphasis added).
While Robinson also invokes the Supreme Court’s decisions Descamps and Mathis, he
does not present an argument that the sentencing court’s classification of his prior drug
convictions was erroneous in light of the “modified categorical approach” as applied in these
cases. 3 Rather, Robinson argues that, while considering whether his prior drug convictions
were valid predicate offenses for purposes of the sentencing enhancement, the sentencing court
improperly relied upon the descriptions of his prior offenses in the PSR because the court failed
to first “conduct a colloquy” to confirm the accuracy of those descriptions. He further argues
that the sentencing court’s reliance on the PSR was improper because it is not the sort of
document described in Shepard that a court may review when analyzing whether a defendant’s
prior conviction qualifies as a valid predicate offense for purposes of a sentencing
enhancement.
Robinson’s procedural challenge to the § 851 Information is a claim of ordinary trial
error. Such a claim could and must have been asserted before the trial court, upon direct
appeal, or in a motion pursuant to 28 U.S.C. § 2255, and thus fall outside the purview of §

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In Descamps and Mathis, the Supreme Court clarified when a statute is “divisible” for
purposes of determining whether a prior conviction qualifies as a valid predicate offense under
the Armed Career Criminal Act, 18 U.S.C. § 924(e). Under these cases, an underlying statute
is “divisible” 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. In such circumstances, a sentencing court is permitted to apply the
“modified categorical approach” and review the materials described in Shepard v. United
States, 544 U.S. 13 (2005) - such as the indictment or jury instructions in the underlying trial
– to determine whether the defendant was convicted of conduct that falls within the “generic”
offense, and thus qualifies as a valid predicate under § 924(e). Descamps, 570 U.S. at 257258, 260-265 (describing the history of the “modified categorical approach”); Mathis, 136 S.
Ct. at 2248-50 (citing Richardson v. United States, 526 U.S. 813 (1999)).
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2241. Likewise, his claim that the sentencing court improperly relied upon his PSR at
sentencing because a PSR is not an appropriate Shepard document is a claim based upon
Shepard, not Descamps or Mathis. The Supreme Court’s decision in Shepard was issued in
2005, well before Robinson was sentenced in 2009. For purposes of allowing a petitioner to
proceed via the savings clause of § 2255(e), “[a] new case matters only, if at all, because of
the new legal arguments it makes available.” Wright, 939 F.3d at 705 (emphasis in original).
Because Robinson did not need either Descamps or Mathis to raise his objections to the use of
the PSR by the sentencing court, he may not do so now in his § 2241 petition.
Moreover, Robinson cannot establish that he has had “no prior reasonable opportunity
to bring his argument for relief” as required by Wright because he has raised his claims in other
courts. Indeed, Robinson’s initial § 2255 motion filed in the sentencing court unsuccessfully
argued, in part, that his prior drug offense convictions in 2000 were not valid Career Offender
predicates because his 10-year suspended sentence did not qualify as a “sentence of
imprisonment.” United States v. Robinson, No. 0:08-cr-401-CMC-2 (D.S.C. 2008) at Record
No. 238-1 at p. 8-9.

Robinson again raised this argument, as well as a claim that he was

improperly sentenced as a Career Offender in light of Mathis and Descamps, in a § 2241
petition filed in the District of New Hampshire in 2018, which also denied his request for relief.
Robinson v. Warden, No. 1: 18-CV-287 (D.N.H. 2018) at Record No. 1. Most recently,
Robinson’s attempt to challenge his Career Offender status in the sentencing court was
dismissed for lack of jurisdiction, in part, because Robinson failed to satisfy the requirements
of the savings clause. United States v. Robinson, 0: 08-CR-401-CMC (D.S.C. 2008) at Record
No. 405 (Robinson’s second or successive motion to vacate his sentence under 28 U.S.C. §
2255 filed in October 2019). That Robinson’s claims have been repeatedly rejected by other
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courts does not render a motion under § 2255 “inadequate or ineffective” to test the legality of
his sentence enhancements. Copeland, 36 F. App’x at 795. Rather, as Robinson has had ample
opportunities to raise his claims for relief, he may not raise them again in this Court in a § 2241
petition filed pursuant to the savings clause of § 2255(e). Wright, 939 F.3d at 706.4
For the reasons outlined in this opinion, Robinson cannot establish that a § 2255 motion
is inadequate or ineffective to challenge his sentence. Thus, he may not proceed in this matter
via the savings clause of § 2255(e). Accordingly, this Court may not entertain his § 2241
petition and will dismiss it for lack of subject-matter jurisdiction. See Taylor, 990 F.3d at 496.
For all of the foregoing reasons, it is hereby ORDERED as follows:
1.

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

[Record No. 1] is DISMISSED for lack of subject-matter jurisdiction.
2.

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

Dated: October 5, 2021.

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Although the Court declines to dismiss Robinson’s petition as an abuse of the writ at this
time, he is advised that his repeated presentation of the same claims for relief in multiple §
2241 petitions is inappropriate. See Sanders v. United States, 373 U.S. 1, 18 (1963) (“Nothing
in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal
litigation, to entertain collateral proceedings whose only purpose is to vex, harass, or delay.”);
Dietz v. U.S. Parole Comm'n, 260 F. App'x 763, 765 (6th Cir. 2008) (“Although habeas corpus
petitions filed pursuant to § 2241 are not subject to the strict bars on second and successive
petitions imposed on 28 U.S.C. § 2255 habeas petitions, courts may decline to address claims
brought repeatedly.”) (citing 28 U.S.C. § 2244(a)). Future § 2241 petitions filed by Robinson
on these same grounds may be summarily dismissed as an abuse of the writ.
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