King v. Terris

Filing 9

OPINION and ORDER Denying the Petition for Writ of Habeas Corpus Brought Pursuant to 28 U.S.C. §2241 1 . Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRYANT J. KING,
Petitioner,
Civil Action 2:17-CV-10611
HONORABLE DENISE PAGE HOOD
CHIEF UNITED STATES DISTRICT JUDGE

v.

J.A. TERRIS,
Respondent,
_______________________________/
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS BROUGHT PURSUANT TO 28 U.S.C. § 2241
Bryant J. King, (“petitioner”), a federal prisoner confined at the
Federal Correctional Institution in Milan, Michigan, seeks the issuance of a
writ of habeas corpus pursuant to 28 U.S.C. § 2241. In his application,
filed pro se, petitioner challenges his sentence as a career offender
pursuant to U.S.S.G. § 4b1.1 for his underlying conviction of distributing
more than 50 grams, but less than 500 grams, of a mixture containing
methamphetamine, 18 U.S.C. § 841(a)(1). For the reasons stated below,
the petition for writ of habeas corpus is DENIED.
I. BACKGROUND
Petitioner was convicted following a jury trial in the United States

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District Court for the Northern District of Indiana and was sentenced to 262
months imprisonment.
Petitioner’s conviction was affirmed on appeal. United States v. King,
356 F.3d 774, 780 (7th Cir. 2004).
Petitioner filed a motion to vacate sentence pursuant to 28 U.S.C. §
2255, which was denied. United States v. King, No. 1:04-C-369 (N.D. Ind.
Apr. 14, 2005).
Petitioner later filed a motion for a new trial based on newly
discovered evidence which was denied by the district court. The Seventh
Circuit affirmed the denial of the motion. United States v. King, 193 F.
App’x. 611, 612 (7th Cir. 2006).
Petitioner filed an application to file a successive motion to vacate
sentence pursuant to 28 U.S.C § 2244(b)(3)(A) with the United States
Court of Appeals for the Seventh Circuit. Petitioner claimed that his two
prior Class B burglary convictions out of the State of Indiana could not be
categorically considered “crimes of violence” so as to qualify as predicate
offenses to sentence petitioner as a career offender. The Seventh Circuit
denied petitioner permission to file a successive motion to vacate
sentence, concluding that Indiana’s Class B burglary statute is divisible and

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thus petitioner’s two prior burglary convictions qualified as crimes of
violence, so as to enhance petitioner’s sentence as a career offender. King
v. United States, No. 16-2505 (7th Cir. July 11, 2016).
Petitioner seeks a writ of habeas corpus on the following ground:
Based on the retroactive substantive change in decisional law
announced in Mathis v. United States, 136 S. Ct. 894 (2016), King
is actually innocence of his USSG § 4B1.1 then mandatory career
offender sentence and he is in prison in violation of his Fifth
Amendment due process rights and the law-18 USC § 3553(b).
II. Discussion
Petitioner seeks habeas relief for his classification as a career
offender under the sentencing guidelines. Petitioner claims that his two
prior Indiana burglary convictions no longer qualify as crimes of violence
because the definition of burglary under Indiana law is broader than the
generic definition of burglary. Petitioner bases his claim on the recent
Supreme Court decision of Mathis v. United States, 136 S. Ct. 2243 (2016)
and the earlier decision of Descamps v. United States, 133 S. Ct. 2276
(2013).
A federal prisoner may bring a claim challenging his or her conviction
or the imposition of sentence under 28 U.S.C. § 2241 only if it appears that
the remedy afforded under § 2255 is inadequate or ineffective to test the

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legality of the defendant’s detention. See Wooten v. Cauley, 677 F.3d 303,
307 (6th Cir. 2012). Habeas corpus is not an additional, alternative, or
supplemental remedy to the motion to vacate, set aside, or correct the
sentence. See Charles v. Chandler, 180 F.3d 753, 758 (6th Cir. 1999).
The burden of showing that the remedy afforded under § 2255 is
inadequate or ineffective rests with the petitioner and the mere fact that a
prior motion to vacate sentence may have proven unsuccessful does not
necessarily meet that burden. In Re Gregory, 181 F.3d 713, 714 (6th Cir.
1999). The remedy afforded under § 2255 is not considered inadequate or
ineffective simply because § 2255 relief has already been denied, or
because the petitioner has been procedurally barred from pursuing relief
under § 2255, or because the petitioner has been denied permission to file
a second or successive motion to vacate sentence. Wooten v. Cauley, 677
F.3d at 303; Charles v. Chandler, 180 F.3d at 756.
Until recently, a federal prisoner could not raise a challenge to his or
her sentence under 28 U.S.C. § 2241. See Gibbs v. United States, 655
F.3d 473, 479 (6th Cir.2011); See also United States v. Peterman, 249
F.3d 458,462 (6th Cir. 2001).
The Sixth Circuit, however, recently modified this rule. In Hill v.

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Masters, 836 F.3d 591 (6th Cir. 2016), the Sixth Circuit held that a federal
prisoner may challenge his or her sentencing enhancement as a career
offender under § 2241 through the § 2255(e) savings clause by: “(1)
prisoners who were sentenced under the mandatory guidelines regime
pre-United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621
(2005), (2) who are foreclosed from filing a successive petition under §
2255, and (3) when a subsequent, retroactive change in statutory
interpretation by the Supreme Court reveals that a previous conviction is
not a predicate offense for a career-offender enhancement.” Id., at 599600.
Petitioner satisfied the first two pre-requisites under Hill to challenge
his sentence enhancement in a § 2241 petition in that petitioner was
sentenced under the mandatory guidelines provisions that existed prior to
Booker and that petitioner is unable to bring a second successive motion to
vacate sentence because the Supreme Court cases that petitioner relies
upon do not involve a new rule of constitutional law. The Government,
however, contends that the Supreme Court holding in Mathis does not
affect the predicate convictions for petitioner’s career offender
enhancement.

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A defendant is subject to an enhanced sentence under the guidelines
if he or she is a career offender. U.S.S.G. § 4B1.1. The career offender
enhancement applies if, among other things, the defendant has at least two
prior felony convictions of either a crime of violence or a controlled
substance offense. U.S.S.G. § 4B1.1(a).
A crime of violence is defined as:
[A]ny offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that
(1) has as an element the use, attempted use, or threatened use
of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a).
Physical force means “violent force—that is, force capable of causing
physical pain or injury to another person.” Johnson v. United States, 559
U.S. 133, 140 (2010)(emphasis in original).
Sentencing courts, in determining whether a prior conviction qualifies
as a “crime of violence,” for purposes of the Armed Career Criminal Act
(ACCA), typically apply what is known as a “categorical approach,” in which
the sentencing court “must compare the elements of the statute forming the

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basis of the defendant’s conviction with the elements of the “generic”
crime—i.e., the offense as commonly understood.” Descamps v. United
States, 133 S. Ct. 2276, 2281 (2013). Under this approach, the prior state
conviction qualifies as a predicate offense under the ACCA “only if the
statute’s elements are the same as, or narrower than, those of the generic
offense.” Id. Prior to Descamps, the Supreme Court had approved what
they referred to as a “modified categorical approach,” which involved cases
in which a federal defendant had a prior state conviction for violating a
so-called “divisible statute,” that is, one that “sets out one or more elements
of the offense in the alternative.” Id. If one alternative under the statute
was the equivalent of an element in the generic offense under the ACCA,
but the other alternative mode of violating the statute was not, the modified
categorical approach allowed a sentencing judge “to consult a limited class
of documents, such as indictments and jury instructions, to determine
which alternative formed the basis of the defendant’s prior conviction.” Id.
The court could then compare the elements of the prior state conviction,
including the alternative element used in that defendant’s case, with the
elements of the generic crime. Id. The Supreme Court in Descamps held
that a sentencing court may not apply this modified categorical approach to

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determine whether a prior offense was a violent felony under the ACCA
when the crime of which the defendant was convicted has a single,
indivisible set of elements that is broader than the generic definition of the
offense under the ACCA. Id., at 2283.
More recently, in Mathis v. United States, 136 S. Ct. 2243 (2016), the
Supreme Court reaffirmed these principles but also held that a sentencing
court “may not ask whether the defendant’s conduct—his [or her] particular
means of committing the crime—falls within the generic definition.” Id. at
2257. In Mathis, the Supreme Court addressed cases in which the state
statute lists “alternative means of fulfilling one (or more)” or the elements.
Id., at 2253. In these cases, a sentencing judge may not look into which of
the different “means” of satisfying a certain element was present in the
case before the court. Id. at 2256. In Mathis, the Supreme Court
addressed the scenario that arises when the statute lists “alternative
means of fulfilling one (or more)” or the elements. 136 S. Ct. at 2253. In
that case, the sentencing court may not inquire into which of the different
“means” of satisfying a certain element was present in the case before the
court. Id. at 2256. “In other words, the modified categorical approach
applies to statutes with alternative elements, but does not apply to statutes

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with alternative means of satisfying a given element.” United States v.
Jeffery, No. 14-CR-20427-01, 2017 WL 764608, at *2 (E.D. Mich. Feb. 28,
2017).
Although Descamps and Mathis dealt with the Armed Career Criminal
Act, the Sixth Circuit has relied on ACCA cases to determine whether a
prior conviction qualifies as a crime of violence under the career-offender
guideline. See United States v. Denson, 728 F.3d 603, 607 (6th Cir. 2013).
It is unclear whether petitioner’s claim comes within the purview of §
2255(e) savings clause, to permit him to bring a Descamps/Mathis claim in
a § 2241 habeas petition. Although the Sixth Circuit in Hill suggested that
Descamps applies retroactively, so as to allow such a claim to be brought
in a § 2241 habeas petition, a judge in the Eastern District of Kentucky
noted that “the Sixth Circuit [in Hill] did not independently determine that
Descamps applied retroactively. Its decision rested on the fact the
government conceded that in the specific context of the case, Descamps
applied retroactively.” Boyd v. Francisco Quintanta, Warden, No. CV 5:
16-211-DCR, 2016 WL 6780307, at * 2 (E.D. Ky. Nov. 15, 2016). That
court also observed that the Sixth Circuit previously held that Descamps
did not announce a new rule of law, but merely reafffirmed the approach

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that district court should take regarding the sentencing guidelines as
enunciated in Taylor v. United States, 495 U.S. 575 (1990), and Shepard v.
United States, 544 U.S. 13 (2005). Id. (citing to United States v. Davis, 751
F.3d 769, 775 (6th Cir. 2014)).
To the extent that the Sixth Circuit in Hill held that Descamps is a
new rule of law that would permit petitioner to file a habeas petition under
2241, it would appear to conflict with its earlier holding in Davis that held
that Descamps was not a new rule of law.
When confronted by conflicting holdings of the Sixth Circuit, this
Court must follow the earlier panel’s holding until it is overruled by the
United States Supreme Court or by the Sixth Circuit sitting en banc. See
Darrah v. City of Oak Park, 255 F.3d 301, 310 (6th Cir. 2001). This Court
believes that in the absence of any decision by the Sixth Circuit en banc or
by the Supreme Court that Descamps is a new rule of law that should be
applied retroactively, this Court is bound by the Sixth Circuit’s earlier
holding in Davis that Descamps did not announce a new rule of law, so as
to permit petitioner to utilize the § 2255(e) savings clause to file a habeas
petition.
This Court further notes that several judges in this district have

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concluded that Mathis likewise did not create a new rule of law made
retroactively applicable to cases on collateral review, but was basically the
reiteration of the Supreme Court’s prior precedents. See Sandlain v. United
States, No. 14-CR-20283, 2017 WL 2002005, at * 5 (E.D. Mich. May 12,
2017); United States v. Snow, No. 13-CR-20766, 2017 WL 1434307, at *2
(E.D. Mich. Apr. 24, 2017). Every circuit to address the issue has held that
Mathis is not retroactive to cases on collateral review. See United States v.
Taylor, 672 F. App’x. 860, 864–65 (10th Cir. 2016); Holt v. United States,
843 F.3d 720, 722 (7th Cir. 2016); In re Lott, 838 F.3d 522, 523 (5th Cir.
2016). It appears that petitioner cannot use the § 2255(e) savings clause
to bring a challenge to his sentence under Mathis.
Nonetheless, out of an abundance of caution, the Court will address
the merits of petitioner’s claim.
Petitioner was sentenced as a career offender under § 4B1.1 based
upon his two prior Indiana convictions for “Class B” Burglary. The
information in each case charged him with burglary of a dwelling place.
Indiana’s burglary statute at the time of petitioner’s convictions read as
follows:
“A person who breaks and enters the building or structure of
another person, with intent to commit a felony in it, commits
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burglary, a Class C felony. However, the offense is a Class B
felony if it is committed while armed with a deadly weapon or if the
building or structure is a dwelling, and a Class A felony if it results
in either bodily injury or serious bodily injury to any person other
than a defendant.”
Ind.Code. Ann. § 35–43–2–1 (West 1992).
“Generic” burglary, for purposes of the ACCA, requires “an unlawful
or unprivileged entry into ... a building or other structure, with intent to
commit a crime.” Mathis, 136 S.Ct. at 2248 (quoting Taylor v. United
States, 495 U.S. 575, 598 (1990)). The Seventh Circuit, albeit in dicta in a
case involving the granting of an Anders motion to permit appellate counsel
to withdraw, suggested that Indiana’s burglary statute fits the generic
definition of burglary for purposes of the ACCA. See United States v. Vogt,
588 F. App’x. 497, 498 (7th Cir. 2015). Several judges, including a judge in
this district, have held that the Indiana burglary statute that petitioner was
convicted under qualifies as a crime of violence because the definition of
burglary under this statute falls within the generic definition of burglary
under the ACCA. See United States v. Johnson, No. 2:02-CR-19, 2017 WL
1217241, at * 4-5 (N.D. Ind. Mar. 24, 2017), United States v. Steele, Nos.
2:04CR58-PPS, 2:13CV389-PPS, 2016 WL 6563666, at * 4-5 (N.D. Ind.
Nov. 4, 2016), United States v. Samuel, No. 11-CR-20712, 2015 WL

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753462, at * 6 (E.D. Mich. Feb. 23, 2015). Moreover, the Seventh Circuit,
in rejecting petitioner permission to file a successive motion to vacate
sentence, indicated that petitioner’s prior offenses for burglary qualified as
a crime of violence for purposes of the career offender enhancement. In Re
King, No. 16-2505, * 2.
The Court is aware that another judge in the United States District
Court for the Northern District of Indiana ruled that Indiana's burglary
statute is broader than the generic burglary offense defined in Taylor and
could not serve as a predicate offense under the ACCA, because Indiana
case law interpreted a structure to include a fence. See United States v.
Handshoe, No. 1:15-CR-35-TLS, 2016 WL 4453242, at * 5 (N.D. Ind. Aug.
24, 2016). This judge’s decision was criticized by the two other judges
from the Northern District of Indiana in their opinions. See Steele, 2016 WL
6563666 at * 5 (“The Indiana burglary statute contains no such additional
non-generic language. If the categorical approach does not permit the
sentencing court to look beyond the statutory definition of the offense, I
don’t see any basis for looking to state case law interpreting the
dimensions of the statutory language.”); Johnson, 2017 WL 1217241, at * 5
(“It is, in this Court’s opinion, not necessary or appropriate to look to

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Indiana case law for statutory interpretation because the Indiana burglary
statute matches the language of the generic burglary statute”).
The judges’ reasoning in Johnson and Steele is compelling. As the
judge in Steele noted, 2016 WL 6563666, at * 5, the Supreme Court in
Taylor required “the trial court to look only to the fact of conviction and the
statutory definition of the prior offense.” Taylor, 495 U.S. at 602. There is
nothing in Taylor which requires this Court to look to state case law to
determine whether the statutory definition is broader than the generic
definition of burglary.
Moreover, the Seventh Circuit, in denying petitioner permission to file
a successive motion to vacate sentence, concluded that petitioner’s prior
Class B Indiana burglary convictions qualify as crimes of violence for
purposes of the career offender enhancement. Under the law of the case
doctrine, a court is ordinarily precluded from re-examining an issue
previously decided by the same court, or by a higher court in the same
case. Consolidation Coal Co. v. McMahon, 77 F.3d 898, 905 (6th Cir.
1996). “Under the doctrine of law of the case, findings made at one point
of the litigation become the law of the case for subsequent stages of that
same litigation.” United States v. Moored, 38 F.3d 1419, 1421 (6th Cir.

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1994). The law of the case doctrine “generally bars the district court from
reconsidering those issues that the court of appeals has already explicitly
or impliedly resolved.” Keith v. Bobby, 618 F.3d 594, 599 (6th Cir. 2010);
See also In re Kenneth Allen Knight Trust, 303 F.3d 671, 676 (6th Cir.
2002)(“Issues decided at an early stage of the litigation, either explicitly or
by necessary inference from the disposition, constitute the law of the
case.”)(internal quotation marks and citations omitted). The law of the case
doctrine has been applied to habeas cases in various contexts. See Crick
v. Smith, 729 F.2d 1038, 1039 (6th Cir. 1984).
Petitioner is not entitled to use § 2255(e) savings clause to obtain
habeas relief because he is essentially “recycling” the argument that he
made in his prior unsuccessful motion to authorize a successive motion to
vacate sentence, which was denied by the Seventh Circuit. See Yates v.
Snyder-Norris, 164 F. Supp. 3d 953, 961 (E.D. Ky. 2016).
III. ORDER
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus
brought pursuant to 28 U.S.C. § 2241 is DENIED. Because a certificate of
appealability is not needed to appeal the denial of a habeas petition filed
under § 2241, Witham v. United States, 355 F.3d 501, 504 (6th Cir. 2004),

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petitioner need not apply for one with this Court or with the Sixth Circuit
before filing an appeal from the denial of his habeas petition.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: July 31, 2017
I hereby certify that a copy of the foregoing document was served upon
counsel of record on July 31, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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