Gary v. Kallis
MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 5/23/2017. (c/m 5/23/17)(kr2, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
WARDEN S. KALLIS
Civil Action No. ELH-17-1255
(Related Crim Case ELH-08-86)
On May 4, 2017, Kevin Gary, a self-represented federal prisoner incarcerated at FCIHazelton Medical Complex in Bruceton Mills, West Virginia, filed a Petition for Writ of Habeas
Corpus (“Second Petition”), pursuant to 28 U.S.C. §2241. He alleges that he is illegally detained
because prior convictions were improperly used to enhance his federal sentence. ECF 1 at 1.
Gary relies on Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243, 2251 (2016). In Mathis,
the Supreme Court applied the “categorical approach” and determined Iowa‟s burglary statute
could not serve as a predicate violent felony to enhance Mathis‟s sentence under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). On the basis of Mathis, Gary argues that
his two prior convictions for possession with intent to distribute cocaine and heroin were
improperly used to enhance his sentence. ECF 1 at 2.
The threshold question presented here is whether this claim is properly raised in a § 2241
petition or is, instead, more properly construed under 28 U.S.C. § 2255. No hearing is necessary
to resolve the Petition.
Gary was indicted on multiple charges on February 21, 2008. The charges included
conspiracy to participate in a racketeering enterprise, in violation of 18 U.S.C. § 1962(d). ECF
1. He was one of twenty-eight defendants. On January 9, 2009, Gary entered a plea of guilty to
the racketeering charge (ECF 467), pursuant to a Plea Agreement dated December 31, 2008.
ECF 468. The plea was entered under Fed. R. Crim. P. 11(c)(1)(C). Id. ¶ 9.
According to the “Stipulated Facts” contained in the Plea Agreement, Gary held a
position of leadership in the Tree Top Pirus Gang, a subset of the “Bloods.” See generally id. at
8-18. Wiretap evidence showed that Gary, inter alia, facilitated drug transactions; ordered his
subordinates to commit acts of violence; and organized the distribution of firearms. Id. at 12-17.
Gary also stipulated to having sold narcotics (id. at 14) and to having participated in a gangrelated murder. Id. at 15.
On March 27, 2009, Judge William D. Quarles, Jr. sentenced Gary to a term of
imprisonment of 360 months, in accordance with the terms of the Plea Agreement. ECF 511;
ECF 513. The following day, March 28, 2009, Gary noted an appeal to the Fourth Circuit. ECF
512. On December 29, 2010, the Fourth Circuit affirmed Gary‟s conviction and dismissed his
appeal as to his sentence. See United States v. Penix and Gary, 406 Fed. App‟x 744 (4th Cir.
2010) (per curiam); see also ECF 1138. The mandate issued on January 20, 2011. ECF 1137.
Gary did not seek a writ of certiorari to the Supreme Court.
More than two and a half years later, on September 19, 2013, Gary filed a “Motion to
Vacate, Set Aside, or Correct Sentence” (the “First Petition”), pursuant to 28 U.S.C. § 2255.
ECF 1359. In particular, Gary argued that, in light of United States v. Simmons, 649 F.3d 237
(4th Cir. 2011), Judge Quarles should not have sentenced him as a career offender. Id. at 4-5.
The government filed an opposition. ECF 1372 (the “First Opposition”), along with three
exhibits. ECF 1372-1 through ECF 1372-3. Gary replied. ECF 1396 (the “Reply”).1 Then, on
May 5, 2016, the Clerk docketed Gary‟s “Motion Under 2255 In Light Of Johnson v. United
States.” ECF 1473 (the “Supplemental Petition”). The Supplemental Petition was based on
Johnson v. United States, ____ U.S. ____, 135 S. Ct. 2551 (2015). ECF 1473. The government
subsequently filed another opposition (ECF 1476, the “Second Opposition”), along with an
exhibit. ECF 1476-1.
As noted, in the First Petition, Gary relied on Simmons, 649 F.3d 237. He argued that he
was improperly designated a career offender because of a prior conviction for robbery in
ECF 1359 at 4-5 ¶ 13-14; ECF 1372 at 3.
Gary contended that his robbery
conviction in 2000, in the Circuit Court for Baltimore City, did not qualify as a predicate
conviction under § 4B1.2 of the Sentencing Guidelines. See ECF 1372 at 5.
However, in addition to Gary‟s robbery conviction in 2000, the Presentence Report
(“PSR,” ECF 1487), reflected that on July 10, 2001, Gary was convicted of possession with
intent to distribute cocaine, occurred on October 7, 2000. ECF 1487, ¶¶ 47, 48. For that offense,
he was sentenced on August 13, 2001, to a period of ten years‟ incarceration, of which eight
years were suspended. Id. ¶ 47. And, ¶¶ 49 and 50 of the PSR reflected that Gary was convicted
of possession with intent to distribute heroin and conspiracy to distribute heroin, with an offense
date of November 4, 2000. On August 13, 2001, the Maryland court imposed a concurrent
sentence of ten years‟ imprisonment, of which eight years were suspended.
In a Memorandum (ECF 1491) and Order (ECF 1492) of August 17, 2016, I concluded
that the First Petition was untimely. See ECF 1491 at 5-7. Alternatively, I concluded that it
This case was reassigned to me on January 29, 2016, as a result of the retirement of
Judge Quarles. See Docket.
lacked merit. Id. at 7-14. Even assuming robbery in Maryland does not constitute a “crime of
violence” under the Sentencing Guidelines, I observed that the PSR (ECF 1487) reflected that
Gary was also convicted of two prior, separate, and qualifying felony drug offenses. Thus, I
said, in part, id. at 9: “[B]ased on Gary‟s two prior and distinct felony drug convictions, and
without regard to his [State] robbery conviction, Gary is a career offender.”
Finally, I noted that Gary entered his plea under Rule 11(c)(1)(C), by which the parties
jointly proposed a sentence of 360 months‟ incarceration. Id. at 13.
A writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a motion to vacate, set aside,
or correct sentence pursuant to 28 U.S.C. § 2255 are separate and distinct mechanisms for
obtaining post-conviction relief. A § 2241 petition attacks the manner in which a sentence is
executed. See 28 U.S.C. § 2241(a). By contrast, a § 2255 motion challenges the validity of a
conviction or sentence. See In re Jones, 226 F.3d 328, 332 (4th Cir. 2000); In re Vial, 115 F.3d
1192, 1194 n. 5 (4th Cir. 1997) (en banc).
Although a federal prisoner generally may not seek collateral relief from a conviction or
sentence by way of § 2241, there is an exception under the so-called Asavings clause@ in
§ 2255(e).2 It provides that a prisoner may seek relief under § 2241 if the remedy under § 2255
is Ainadequate or ineffective to test the validity of his detention.@ 28 U.S.C. § 2255. In Jones,
226 F.3d 328, the Fourth Circuit said that “§ 2255 is inadequate and ineffective to test the
28 U.S.C. § 2255(e) provides, in relevant part:
An application for a writ of habeas corpus in behalf of a prisoner who is
authorized to apply for relief by motion pursuant to this section, shall not
be entertained if it appears that the applicant has failed to apply for relief,
by motion, to the court which sentenced him, or that such court has denied
him relief, unless it also appears that the remedy by motion is inadequate
or ineffective to test the legality of his detention.
legality of a conviction when: (1) at the time of conviction, settled law of this circuit or the
Supreme Court established the legality of the conviction; (2) subsequent to the prisoner's direct
appeal and first § 2255 motion, the substantive law changed such that the conduct of which the
prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the
gatekeeping provisions of § 2255 because the new rule is not one of constitutional law.” Id. at
The Second Petition clearly challenges the validity of the underlying sentence.
Regardless of the label or title used by petitioner, the subject matter of the Petition, and not its
title, determines its status. See, e.g., Calderon v. Thompson, 523 U.S. 538, 554 (1998).
Therefore, the Second Petition is properly construed pursuant to 28 U.S.C. § 2255.
Petitioner has not satisfied the criteria set forth in Jones for demonstrating that a ' 2255
petition is an inadequate or ineffective remedy. It is well established that a ' 2255 motion is
neither inadequate nor ineffective merely because an individual is unable to obtain relief under
that provision. See Jones, 226 F.3d at 333; Vial, 115 F.3d at 1194 n. 5. A '2241 habeas petition
is not available to circumvent the statutory limitations imposed on second or successive '2255
motions. See id.
Gary argues that changes in the law, subsequent to the filing of his First Petition, now
make the underlying Maryland state convictions, used to enhance his federal sentence, ineligible
for enhancement. Therefore, he claims that he is entitled to resentencing. A review of the earlier
Memorandum (ECF 1491) addressing the First Petition, reveals that the issues raised here were
Although Mathis, 136 S. Ct. 2243, was not discussed in the earlier Memorandum,
petitioner‟s reliance on Mathis is misplaced. In Mathis, the Court used the categorical approach
and explained that a court generally must look only to the elements of the offense, not the facts,
to determine whether a prior offense qualifies under the ACCA as a predicate offense. The
Supreme Court cited, inter alia, Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276
(2014). That case was discussed in the prior Memorandum (ECF 1491).
In Descamps, decided a year before Mathis, the Supreme Court reiterated that the so
called modified categorical approach, set forth in Taylor v. United States, 495 U.S. 575 (1990)
and Shepard v. United States, 544 U.S. 13 (2005), does not apply to a state statute with a “single,
indivisible set of elements.” Descamps, 133 S. Ct. at 2282. It stated that sentencing courts “may
not apply the modified categorical approach when the crime of which the defendant was
convicted has a single, indivisible set of elements.” Id.; see, also e.g., Moncrieffe v. Holder, ___
U.S. ___, 133 S. Ct. 1678, 1684 (2013); Begay v. United States, 553 U.S. 137, 141 (2008); James
v. United States, 550 U.S. 192, 202 (2008).
The Mathis Court reiterated that, in order to determine whether a prior conviction
qualifies as a violent felony under the ACCA, courts generally rely on the categorical approach.
136 S. Ct. at 2248. The Iowa burglary statute, used as a predicate offense to enhance Mathis‟s
sentence, listed alternative means for satisfying one or more of its elements.
concluded that the Iowa statute was broader than the generic definition of burglary and could not
be used as a predicate offense. Id. at 2248. It stated:
[T]he elements of Mathis‟s crime of conviction (Iowa burglary) cover a greater
swath of conduct than the elements of the relevant ACCA offense (generic
burglary). Under our precedents, that undisputed disparity resolves this case.
We have often held, and in no uncertain terms, that a state crime cannot qualify
as an ACCA predicate if its elements are broader than those of a listed generic
offense. How a given defendant actually perpetrated the crime . . . makes no
difference . . . .
Id. at 2251 (emphasis added) (internal citation omitted).
The preliminary question is whether Descamps or Mathis established a new rule or
principle of law. The Supreme Court stated in Teague v. Lane, 489 U.S. 288 (1989), that a “new
rule” is one that “breaks new ground or imposes a new obligation on the States or the Federal
Id. at 301. In other words, “a case announces a new rule if the result was
not dictated by precedent existing at the time the defendant's conviction became final.” Welch v.
United States, ___ U.S. ___, 136 S.Ct. 1257, 1264 (2016) (quoting Teague, 489 U.S. at 301)
(alteration omitted and emphasis added).
Applying this definition, the Supreme Court did not establish a new rule in Mathis or in
Descamps. Rather, it “simply [reaffirmed] the Taylor/Shepard approach, which some courts had
United States v. Davis, 751 F.3d 769, 775 (6th Cir. 2014) (addressing
Descamps). Indeed, the Supreme Court itself recognized in Descamps that it was relying on
existing precedent. Descamps, 133 S. Ct. at 2283 (“Our caselaw explaining the categorical
approach and its „modified‟ counterpart all but resolves this case.”); see also United States v.
Morgan, 845 F.3d 664, 668 (5th Cir. 2017) (“Descamps clearly relies on existing precedent. The
Court explicitly says so and spends nearly the whole opinion explaining that viewpoint.).
Many courts have considered the question of whether the Supreme Court recognized a
new right in Descamps. They have concluded that Descamps merely reiterated an existing legal
See, e.g., Morgan, 845 F.3d at 667 (“We agree with our sister courts
that Descamps did not establish a new rule.”); Mays v. United States, 817 F.3d 728, 734 (11th
Cir. 2016) (“Descamps did not announce a new rule—its holding merely clarified existing
precedent.”); Headbird v. United States, 813 F.3d 1092, 1097 (8th Cir. 2016) (“We agree with
other circuits that the decision in Descamps was dictated by the general principles set forth in
existing precedent and did not establish a new rule.”); Ezell v. United States, 778 F.3d 762, 766
(9th Cir.) (“Descamps clarified application of the modified categorical approach in light of
existing precedent.”), cert. denied, ___ U.S. ___, 136 S. Ct. 256 (2015); King v. United States,
610 Fed. App'x 825, 828 (11th Cir.) (“As for Descamps, it is not a new rule. It merely applied
prior precedent . . . .”), cert. denied, 136 S. Ct. 349 (2015); United States v. Hopson, 589 Fed.
App'x 417 (10th Cir. 2015) (“Descamps did not recognize a new right, but rather applied existing
doctrine.”); Davis, 751 F.3d at 775 (“The Supreme Court in Descamps explained that it was not
announcing a new rule . . . .”); United States v. Williams, No. 3:05-CR-173, 2016 WL 7155748,
at *4 (E.D. Va. Dec. 7, 2016) (“„[T]he decision in Descamps was dictated by the general
principles set forth in existing precedent and did not establish a new rule.‟”) (quoting Headbird,
813 F.3d at 1097) (alteration in Williams); Scott v. United States, RDB-08-0034, 2016 WL
3162766, at *3 (D. Md. June 7, 2016) (recognizing that Descamps does not recognize a new right
or apply retroactively on review); United States v. Owens, 3:05-CR-264-HEH, 2016 WL
1562917, at *2 (E.D. Va. Apr. 15, 2016) (“Descamps . . . is not a new right that triggers the
belated commencement provision of 28 U.S.C. § 2255(f)(3).”), reconsideration denied, No.
3:05-CR-264-HEH, 2016 WL 5019163 (E.D. Va. Sept. 16, 2016).
The same rationale has also been applied to Mathis. See, e.g., Dawkins v. United States,
829 F. 3d 549, 551 (7th Cir. 2016) (holding Mathis did not announce a new rule of constitutional
law made retroactive by the Supreme Court); United States v. Taylor, ___ Fed. Appx., 2016 WL
7093905, at *4 (10th Cir. 2016)(Mathis did not announce a new rule of law); Adams v. United
States, 2017 WL 1040346 at *3 (D. Maine 2017) (Mathis does not apply retroactively as it did
not announce a new substantive rule applicable to cases on collateral review); Dimott v. United
States, 2016 WL 6068114, at *3 (D. Maine 2016) (neither Mathis nor Descamps announced a
newly recognized constitutional right); Blackwell v. United States, 2016 WL 5849384, at *4-5
(W.D. Va. 2016) (neither Descamps nor Mathis announced a new rule of constitutional law).
Accordingly, I conclude that the Second Petition is a successive § 2255 petition. Under
28 U.S.C. §2255(h):
A second or successive motion must be certified as provided in section 2244 by a
panel of the appropriate court of appeals to contain (1) newly discovered evidence
that, if proven and viewed in light of the evidence as a whole, would be sufficient
to establish by clear and convincing evidence that no reasonable factfinder would
have found the movant guilty of the offense; or (2) a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court, that
was previously unavailable
However, Gary has not obtained requisite certification from the Court of Appeals for the
Fourth Circuit to file a successive § 2255 petition. Consequently, this court may not consider the
merits of the claim unless and until petitioner receives the requisite certification.
The Fourth Circuit has set forth instructions for the filing of a motion to obtain the
aforementioned authorization Order. The procedural requirements and deadlines for filing the
motion are extensive. A packet of instructions promulgated by the Fourth Circuit addresses the
comprehensive procedure to be followed should Petitioner wish to seek authorization to file a
successive petition with the appellate court. Petitioner must file the pleading with the Fourth
Circuit Court of Appeals and obtain authorization to file a successive petition before this court
may examine his claims.
Even if this Court were to construe the Second Petition under 28 U.S.C. § 2241, courts
may grant a writ of habeas corpus “within their respective jurisdictions.” 28 U.S.C. § 2241(a).
This means that in a § 2241 action, the petition should be filed in the district court of the district
where petitioner is in custody. See Braden v. 30th Judicial Circuit, 410 U.S. 484, 495-500
(1973); United States v. Miller, 871 F.2d 488, 490 (4th Cir. 1990) (per curiam). Obviously, Gary
has not done so.
In addition, a certificate of appealability must be considered. Unless a certificate of
appealability (“COA”) is issued, a petitioner may not appeal the court‟s decision in a § 2255
proceeding. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b). A COA may issue only if the
petitioner “has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). The petitioner “must demonstrate that reasonable jurists would find the district
court‟s assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S.
274, 282 (2004) (citation and internal quotation marks omitted), or that “the issues presented are
adequate to deserve encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S. 322, 327
Because petitioner has not made a substantial showing of the denial of his constitutional
rights, this Court will not issue a COA. However, the denial of a COA does not preclude a
petitioner from seeking permission to file a successive petition or from pursuing his claims upon
receiving such permission.
A separate Order follows.
May 23, 2017
Ellen L. Hollander
United States District Judge
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