Veach v. Feather
Filing
34
OPINION AND ORDER. The Petition for Writ of Habeas Corpus [1) is dismissed with prejudice to the filing of another § 2241 habeas action challenging his career offender sentence. The court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). IT IS SO ORDERED. Signed on 7/24/2014 by Judge Michael W. Mosman. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JOHN RODNEY VEACH,
Case No. 3:14-cv-00288-MO
Petitioner,
v.
MARION FEATHER,
OPINION AND ORDER
Respondent.
Stephen R. Sady, Chief Deputy Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
S. Amanda Marshall
United States Attorney
Natalie K. Wight, Assistant United States Attorney
1000 SW Third Avenue, Suite 600
Portland, OR 97204-2902
Attorneys for Respondent
1 - OPINION AND ORDER
MOSMAN, District Judge.
Petitioner brings this habeas corpus case pursuant to 28
U.S.C. § 2241 challenging the legality of his federal sentence as
enhanced pursuant the Armed Career Criminal Act.
Middle
District
of
Pennsylvania
has
already
Because the
determined
that
petitioner is not entitled to relief on this claim, the Petition
for Writ of Habeas Corpus (#2) is dismissed.
BACKGROUND
On July 22, 2003, petitioner pleaded guilty to possession with
intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1)
in the Southern District of Illinois.
The District Court applied
a career offender enhancement in light of petitioner’s two prior
Illinois state convictions for aggravated battery.
As a result,
the court sentenced petitioner to 188 months in prison.
If not for
the prior state convictions and resulting enhancement, petitioner’s
sentence would likely have fallen under the Guidelines range of 5771 months.
As part of his plea agreement, petitioner agreed to waive
future challenges to his sentence:
Defendant knowingly and voluntarily waives the
right to appeal any sentence within the
maximum
provided
in
the
statute(s)
of
conviction (or the manner in which that
sentence was determined) on the grounds set
forth in Title 18, United States Code, Section
3742 or on any ground whatever, including any
ordered restitution, in exchange for the
concessions made by the United States in this
plea agreement. The Defendant also waives his
2 - OPINION AND ORDER
right to challenge his sentence or the manner
in which it was determined in any collateral
attack, including but not limited to a motion
brought under Title 28, United States Code,
Section 2255.
Respondent’s Exhibit 3, p. 3.
Notwithstanding this waiver, petitioner proceeded to challenge
the legality of his sentence.
The District Court for the Middle
District of Pennsylvania recently summarized much of petitioner’s
procedural history in a 28 U.S.C. § 2241 habeas action petitioner
filed in that court:
[P]etitioner appealed his sentence pro se to
the United States Court of Appeals for the
Seventh Circuit. [Veach v. U.S., 2008 U.S.
Dist. LEXIS 55257 (S.D. Ill.) at *3-4]. The
Seventh
Circuit
rejected
petitioner’s
contention that Booker v. United States, 543
U.S. 220 (2005) established an exception to
his appellate waiver and dismissed his appeal.
Id. at *3. On July 18, 2006, petitioner,
through current counsel, filed a motion to
vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255 on the ground
that trial counsel was ineffective during plea
negotiations. Id. at *3-4. The trial judge
acknowledged that otherwise valid appeal
waivers do not preclude ineffective assistance
claims
that
have
their
basis
in
plea
negotiations. Id. at *19-20. . . . The court
thus conducted a merits review of the
petitioner’s ineffective assistance claim to
the extent it pertained to the appellate
waiver and ultimately concluded that the
petitioner had failed to satisfy either
element of the ineffective assistance test set
forth in Strickland v. Washington, 466 U.S.
668, 694 (1984). Id. at *19-24.
In doing so, the court emphasized the
voluntariness of petitioner’s plea agreement
and his appellate waiver, noting that the plea
3 - OPINION AND ORDER
agreement was signed by petitioner and that
petitioner affirmatively responded to the
sentencing court’s thorough inquiries as to
whether petitioner’s plea agreement, and in
particular the appellate waiver, were knowing
and voluntary. Id. (“Veach’s statements . . .
during the . . . change of plea hearing
clearly illustrate that he knowingly and
voluntarily entered into the plea agreement
and specifically accepted the appellate waiver
terms of the agreement.”). The [sentencing]
court thus enforced the appellate waiver and
dismissed the § 2255 motion.
Petitioner did not appeal the denial of his
Section 2255 motion. Instead, he filed a
motion for a certificate of appealability in
the Seventh Circuit, which the Circuit
directed the district court to file as a
notice of appeal. See Veach v. United States,
2010 U.S. Dist. LEXIS 106975, *2 (S.D. Ill.
Oct. 6, 2010). Therein, petitioner asked the
court to remand his case to the district court
for resentencing without the career offender
enhancement pursuant to the Supreme Court’s
recent decisions in Chambers v. United States,
555 U.S. 122 (2009) and Begay v. United
States, 553 U.S. 137 (2008). Veach, 2010 U.S.
Dist. LEXIS 106975 at *2. The district court
declined
to
issue
a
certificate
of
appealability, and concluded that while the
Begay
rule
is retroactively
applicable,
petitioner had executed a broad appellate
waiver, found by the court to be valid and
enforceable, thus precluding petitioner’s
claim. Id. at *3-5. Petitioner appealed to the
Seventh Circuit, which dismissed his appeal as
untimely. However, noting Begay’s retroactive
applicability, the panel observed that Veach’s
argument regarding his career offender status
“might be appropriately brought in a petition
under 28 U.S.C. § 2241, which is the proper
avenue for relief when § 2255 is “inadequate
or ineffective to test the legality of his
detention.’” Veach v. United States, No.
10-2129 (7th Cir. Nov. 19, 2010).
Respondent’s Exhibit 6, Memorandum at 3-4.
4 - OPINION AND ORDER
Petitioner then filed a 28 U.S.C. § 2241 habeas corpus case in
the Southern District of Illinois on June 22, 2011 alleging that
his
classification
as
a
career
offender
was
constitutionally
impermissible in light of the Begay decision which the Seventh
Circuit had determined applied retroactively to cases on collateral
review. Welch v. United States, 604 F.3d 408, 413-15 (7th Cir.
2010).
The Southern District of Illinois transferred the case to
the Middle District of Pennsylvania where the District Court
determined that petitioner’s appellate waiver had been knowingly
and voluntarily entered, was enforceable, and barred him from
challenging his sentence in that proceeding.
It also concluded
that
not
enforcing
the
appellate
waiver
would
result
in
a
miscarriage of justice because the 188-month sentence did not
exceed the applicable 240-month statutory maximum.
The Middle District of Pennsylvania further opined that even
if it were to hold the appellate waiver unenforceable, petitioner
still could not demonstrate that jurisdiction was proper under
§ 2241 because “a district court has no Section 2241 jurisdiction
to reexamine or second guess the decision of the federal sentencing
court; ‘that has been established time and again in this Circuit.’”
Respondent’s Exhibit 6, p. 10 (citations omitted).
The court also
noted that “if a subsequent change in the law alters only an
element of sentencing but not the underlying crime of conviction,
5 - OPINION AND ORDER
section 2241 offers no remedy.”
Id at 11 (citing Okereke, 307 F.3d
117, 120 (3rd Cir. 2002)).
Petitioner did not appeal the District Court’s decision from
the Middle District of Pennsylvania, but instead filed this new 28
U.S.C. § 2241 habeas corpus case on February 18, 2014 wherein he
again seeks to challenge the legality of his sentence in light of
the Supreme Court’s decision in Begay.
Respondent asks the court
to deny relief on the Petition because: (1) jurisdiction is not
proper under § 2241; (2) petitioner’s appellate waiver bars his
claim; and (3) the Illinois state aggravated battery convictions
are still qualifying crimes of violence for purposes of the career
offender sentencing enhancement.
DISCUSSION
“A federal prisoner who seeks to challenge the legality of
confinement must generally rely on a § 2255 motion to do so.”
However, under the “savings clause” or “escape hatch” of § 2255(e),
a federal inmate may seek relief pursuant to 28 U.S.C. § 2241 “if,
and only if, the remedy under § 2255 is ‘inadequate or ineffective
to test the legality of his detention.’” Id (citing Stephens v.
Herrera, 464 F.3d 895, 897 (9th Cir. 2006).
A petitioner satisfies the savings clause of § 2255(e) where
he: "(1) makes a claim of actual innocence, and (2) has not had an
unobstructed procedural shot at presenting that claim."
Stephens
v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006) (internal quotation
6 - OPINION AND ORDER
marks omitted). The two factors to consider when assessing whether
petitioner had an unobstructed procedural opportunity to present
his claim of innocence are: (1) whether the legal basis for
petitioner's claim did not arise until the conclusion of his direct
appeal and first 28 U.S.C. § 2255 motion; and (2) whether the
applicable law changed in any relevant way after the conclusion of
the petitioner's first § 2255 motion.
Harrison v. Ollison, 519
F.3d 952, 960 (9th Cir. 2008).
In
this
case,
petitioner
alleges
that
the
sentencing
enhancement that took him outside of the Guidelines range of 57-71
months and resulted in a sentence of 188 months is unlawful in
light of the Supreme Court’s holding in Begay because his prior
state convictions for aggravated burglary in Illinois do not
qualify as predicate offenses.1
In Begay, the Supreme Court
determined that in order to be considered a violent felony for
purposes of the Armed Career Criminal Act, a prior conviction must
pose a serious threat of physical injury to others and involve the
kind of purposeful aggressive conduct as the offenses enumerated in
18 U.S.C. § 924(e)(2)(B)(ii).
1
553 U.S. at 144.
Petitioner also relies upon Descamps v. United States, 133
S.Ct. 2276 (2013), wherein the Supreme Court held that when
deciding whether a defendant has previously been convicted of a
violent felony for purposes of a career criminal enhancement, the
sentencing court should not consider the defendant’s conduct and
should, instead, look only at the statutory elements of the
offense. 133 S.Ct. at 2285-86.
7 - OPINION AND ORDER
Petitioner
acknowledges
that
§
2255
is
typically
the
appropriate vehicle by which to present such a claim, but he
asserts that the § 2255 remedy is ineffective to test the legality
of his detention because Begay was not decided until after his
first § 2255 motion was denied. He claims that § 2241 jurisdiction
is proper under the savings clause of § 2255(e) because he is
“actually innocent” of the career sentencing enhancement applied in
his case.
As an
initial
matter,
no
district
judge is
required
to
entertain a habeas corpus petition "if it appears that the legality
of such detention has been determined by a judge . . . on a prior
application for a writ of habeas corpus. . . ."
§ 2244(a).
28 U.S.C.
This prohibition against successive petitions applies
to habeas cases filed pursuant to 28 U.S.C. § 2241.
Queen v.
Miner, 530 F.3d 253, 255 (3rd Cir. 2008); Valona v. United States,
138 F.3d 693, 695 (7th
Cir. 1998); Chambers v. United States, 106
F.3d 472, 475 (2nd Cir. 1997).
Because the District Court for the
Middle District of Pennsylvania previously adjudicated petitioner's
post-Begay challenge to the legality of his sentence, it is not
appropriate for this court to re-analyze the same issue.
If
petitioner disagreed with the Middle District of Pennsylvania’s
decision, his remedy was to take an appeal to the Third Circuit
8 - OPINION AND ORDER
Court of Appeals, not file a new § 2241 habeas case in this
District raising the same challenge.2
But even assuming petitioner’s case were properly before this
court, and further assuming his appellate waiver is unenforceable
contrary to the decisions of multiple courts to address the issue,
the Ninth Circuit has determined that a "purely legal claim that
has nothing to do with factual innocence . . . is not a cognizable
claim of 'actual innocence' for the purposes of qualifying to bring
a § 2241 petition under the escape hatch." Marrero v. Ives, 682
F.3d
1190,
1193
(9th
Cir.
2012).
The
Ninth
Circuit
has
specifically addressed this issue with respect to career offender
sentences.
Rith v. Rios, 514 Fed.Appx. 684 (9th Cir. 2013) (one
cannot be “actually innocent” of a career offender status for
sentencing purposes); Green v. Thomas, 485 Fed.Appx. 888 (9th Cir.
2012) (one cannot be innocent of being classified as a career
offender under the Sentencing Guidelines because that is not a
cognizable claim of actual innocence under the escape hatch).
While the Ninth Circuit in Marrero left open the possibility
that § 2241 habeas jurisdiction may be proper where the enhancement
places the sentence outside the statutory maximum, that is not the
case here. Petitioner’s 188-month sentence was well within the 240
2
While petitioner characterizes the precedent in the Third
Circuit as unfavorable to him with respect to its “very
restrictive view of miscarriages of justice[,]” Reply (#27),
p. 8, this does not allow him to ask a district court in a
different forum for different relief on the same claim.
9 - OPINION AND ORDER
statutory maximum.
Because actual innocence in the Ninth Circuit
is synonymous with factual innocence of the crime of conviction,
and as petitioner’s sentence was well within the statutory maximum,
§ 2241 jurisdiction is not appropriate.
CONCLUSION
The Petition for Writ of Habeas Corpus (#1) is dismissed with
prejudice to the filing of another § 2241 habeas action challenging
his career offender sentence.
The court declines to issue a
Certificate of Appealability on the basis that petitioner has not
made a substantial showing of the denial of a constitutional right
pursuant to 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
DATED this
24th
day of July, 2014.
/s/ Michael W. Mosman
Michael W. Mosman
United States District Judge
10 - OPINION AND ORDER
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