Sloan v. Feather
Filing
20
OPINION AND ORDER: The Petition for Writ of Habeas Corpus 1 is dismissed, with prejudice, for lack of jurisdiction. The court does, however, grants a certificate of appealability on the issues of: (1) whether petitioner has made a showing of actual innocence so as to establish habeas corpus jurisdiction; and (2) if so, whether the imposition of petitioner's ACCA sentence violates his constitutional rights. Signed on 8/18/15 by Judge Michael W. Mosman. (dsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
RAHSAAN LATIF SLOAN,
Case No. 3:15-cv-00342-MO
Petitioner,
v.
MARION FEATHER,
OPINION AND ORDER
Respondent.
Stephen R. Sady, Chief Deputy Federal Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
Frederic N. Weinhouse, 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
U.S.C.
§
this
habeas
corpus
case
pursuant
to
28
2241 challenging the legality of his 15-year mandatory
minimum sentence under the Armed Career Criminal Act ("ACCA")
felon in possession of a firearm.
for
Because petitioner has three
qualifying predicate offenses so as to justify the ACCA sentence,
the Petition for Writ of Habeas Corpus (#1) is dismissed.
BACKGROUND
In February 2006, petitioner pleaded guilty to a single count
of felon in possession of a firearm in the District of Oregon.
In
his Plea Petition, petitioner acknowledged that the Government had
filed a Notice of Enhanced Punishment as Armed Career Criminal
under the ACCA such that the mandatory minimum prison sentence for
the crime to which he was pleading guilty was 15 years.
As a
result of the plea, the court sentenced petitioner to 180 months in
prison.
On July 14, 2006, petitioner filed a 28 U.S.C.
but on December 19,
2006,
§
2255 motion,
he dismissed that action on his own
motion.
Petitioner filed this 28 U.S.C.
§
2241 habeas corpus case on
February 27, 2015, and the court appointed counsel to represent him
shortly thereafter.
petitioner
asserts
In his Petition, as supplemented by counsel,
that
he
is
actually
innocent
of
his
ACCA
sentencing enhancement because two of his three prior convictions
2 - OPINION AND ORDER
justifying
the
ACCA
sentence
are
minor
marijuana
trafficking
convictions that do not constitute qualifying predicate offenses
under
the
ACCA.
He
claims
that
these
are
not
"serious
drug
offenses" as contemplated by the ACCA where his state sentencing
exposure under the Oregon Sentencing Guidelines did not begin to
approach the
10-year statutory maximum,
and where
the
federal
government treats the same conduct as a minor offense.
DISCUSSION
"A federal prisoner who seeks to challenge the legality of
confinement must generally rely on a
Marrero v.
under
the
Ives,
682 F.3d 1190,
"savings
clause"
or
§ 2255 motion to do so."
1192
(9th Cir.
"escape
hatch"
2012).
of
§
However,
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: "(l) makes a claim of actual innocence, and (2) has not had an
unobstructed procedural shot at presenting that claim."
v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006)
marks omitted).
Stephens
(internal quotation
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
3 - OPINION AND ORDER
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
F.3d 952,
§
2255 motion.
Harrison v.
Ollison,
519
960 (9th Cir. 2008).
Assuming petitioner may be "actually innocent" of a portion of
his sentence without attempting to establish his factual innocence
as to his crime of conviction, 1 his ability to prove his innocence,
establish habeas jurisdiction, and prevail in this case necessarily
depend upon his assertion that his ACCA sentence is not supported
by his criminal record.
The ACCA provides for a 15-year mandatory minimum sentence for
certain defendants who have three or more prior convictions for a
serious drug offense or a violent felony.
18 U.S.C. § 924(e).
The
ACCA defines the term "serious drug offense" to mean:
(i) an offense under the Controlled Substances
Act (21 U.S.C. 801 et seq.), the Controlled
Substances Import and Export Act ( 21 U.S. C.
951 et seq.), or chapter 705 of title 46, for
which a maximum term of imprisonment of ten
years or more is prescribed by law; or
(ii) an offense under State law, involving
manufacturing,
distributing,
or possessing
with intent to manufacture or distribute, a
controlled substance (as defined in section
1
See Marrero v. Ives, 682 F.3d 1190, 1193 (9th Cir. 2012)
(claim of wrongful classification as a career offender is a
"purely legal argument" that is "not cognizable as a claim of
actual innocence under the escape hatch"); see also Mitchell v.
Hildreth, 318 Fed. Appx. 600, 601 (9th Cir. 2009) (one cannot be
innocent of a sentencing enhancement, but must instead show
factual innocence) .
4 - OPINION AND ORDER
102 of the Controlled Substances Act (21
U.S. C. 802)), for which a maximum term of
imprisonment
of
ten
years
or
more
is
prescribed by law;
18 U.S.C.
§
924 (e) (2) (A).
The question petitioner poses is whether his minor marijuana
trafficking convictions amounted to "serious drug offenses" for
ACCA purposes where trafficking in less than 50 kilograms or less
of marijuana is categorically not a serious drug offense under the
Controlled Substances Act ("CSA") .
He asserts that where he would
have faced a maximum sentencing exposure of only five years in
prison
under
the
CSA
had
his
prior
marijuana
trafficking
convictions been prosecuted as federal crimes, they cannot possibly
constitute "serious drug offenses" under the 10-year threshold
contemplated by the ACCA.
He contends that under the rules of
statutory construction, the definition of "serious drug offense"
should be based only on federal law so as to promote uniformity.
To
support
decisions
his
argument,
issued well after he dismissed his
including Ca'rachuri-Rosendo v.
Moncrieffe v.
cases
petitioner directs the
stand
Holder,
for
the
133 S.Ct. 1678
proposition
(2013).
that
a
to
2255 challenge
§
560 U.S.
Holder,
court
563
(2010),
and
He believes these
state
offense
cannot
constitute more severe criminal conduct for ACCA purposes than if
the conduct had been charged as a federal offense.
Carachuri-Rosendo
instructs that where a
state convicts a
defendant of a misdemeanor crime that would have supported a felony
5 - OPINION AND ORDER
conviction under the CSA had the prosecutor charged it differently,
federal
courts cannot construe
such misdemeanors as
aggravated
felonies so as to render a noncitizen ineligible for cancellation
of removal.
case,
u. S.
560
at 582.
Moncrieffe,
also an immigration
explores whether a prior state misdemeanor conviction for
social
sharing
aggravated
of
felony
a
for
small
amount
removal
of
marijuana
purposes
where
amounts
the
to
crime
correspond to either a felony or a misdemeanor under the CSA.
an
could
The
court concluded that such a conviction could not constitute an
aggravated felony for removal purposes.
Id at 1693-94.
In a Notice of Supplemental Authority, petitioner points out
that the Fourth Circuit, relying on Carachuri-Rosendo, rejected the
proposition that hypothetical aggravating factors could render a
prior drug offense punishable by more than one year in prison under
the CSA.
2011)
United States v. Simmons, 649 F.3d 237, 243-45 (4th Cir.
(en bane).
The Fourth Circuit then applied its reasoning in
Simmons retroactively to a petitioner on collateral review who,
like petitioner in this case,
was sentenced as an Armed Career
Criminal where one of his underlying state drug convictions carried
a 10-year statutory maximum,
but his actual sentencing exposure
given his criminal history and the nature of his state crime was
only three years.
The Fourth Circuit concluded that whether a
state conviction qualifies as a "serious drug offense" under the
ACCA must be determined by "the maximum penalty that [a defendant)
6 - OPINION AND ORDER
potentially faced given his particular offense and his criminal
history."
U.S.
v.
Newbold,
791 F.3d 455, 462 (4th Cir. 2013).
Consistent with Newbold, petitioner argues that where he was
never actually in jeopardy of receiving a 10-year sentence,
prior
marijuana
trafficking
convictions
cannot
his
constitute
qualifying predicates justifying a 15-year mandatory minimum prison
While the Newbold decision is well-
sentence under the ACCA.
reasoned, in
United States v.
Parry,
479 F.3d 722 (9th Cir. 2007),
the Ninth Circuit not only reached the opposite conclusion, but did
so in the context of the Oregon Sentencing Guidelines.
In Parry,
the defendant committed a drug offense that constituted a Class B
felony which provided for a 10-year statutory maximum, but there
was no possibility of such a sentence under the Guidelines given
his criminal history and the nature of his offense.
Defendant
Parry specifically argued "that the sentence provided for by the
Oregon Sentencing Guidelines must take precedence over the maximum
sentence prescribed by state statute."
Id at
724.
The Ninth
Circuit found this argument to be unavailing and made it clear that
it is the maximum sentence prescribed by state law, not the term
contemplated by Oregon's Sentencing Guidelines,
whether a
prior crime arises to the
offense" under the ACCA.
Id at 724-26.
level of
that determines
a
"serious drug
Two years later, and again
confronted with the same basic issue, the Ninth Circuit would find
the same argument "foreclosed by [Parry]," noting that "Parry is
7 - OPINION AND ORDER
controlling precedent in our circuit" and that "[e]ven if .
Parry was wrongly decided, a three-judge panel may not overrule the
decision of another panel in the absence of intervening Supreme
Court case law that is 'clearly irreconcilable.'"
463 F. 3d 948, 964
Mayer,
(9th Cir.
United States v.
2009).
Although petitioner urges this court not to follow Parry,
Newbold
is not controlling precedent in the Ninth Circuit,
and
neither Carachuri-Rosendo nor Moncrieffe are clearly irreconcilable
with Parry.
Thus, Parry remains good law and dictates that where
petitioner's marijuana trafficking convictions in this case were at
least Class B felonies which carried possible sentences of 10 years
or more under Oregon law, 2 his ACCA enhancement was proper.
Petitioner next argues that precedent does not address whether
an offense can be treated as a "serious drug offense" where state
and federal law are not in accord as to the seriousness of the
crime committed.
Petitioner cites to no controlling authority for
the direct proposition that a state felony conviction punishable by
a maximum of at least 10 years does not constitute a qualifying
predicate offense under 18 U.S.C.
§
924(e) (2) (A) (ii) simply because
federal law would not necessarily punish the same conduct in the
2
The Government characterizes petitioner's convictions as
constituting Class A felonies carrying 20-year maximum sentences
under Oregon law, whereas petitioner states that he was convicted
of Class B felonies carrying 10-year statutory maximums.
See
Petition (#1), p. 9.
Either way, the prior crimes constitute
qualifying offenses for purposes of the ACCA.
8 - OPINION AND ORDER
same manner.
To the contrary, Congress expressly stated that the
measure of the seriousness of a state drug conviction for ACCA
purposes is to be the maximum sentencing exposure under governing
state law.
at
18 U.S.C.
724-25.
Where
petitioner's
924(e)(2)(A)(ii); see also Parry, 479 F.3d
§
there
felony
is
no
dispute
trafficking
in
convictions
this
case
carried
that
maximum
possible sentences of at least 10 years under Oregon law, his ACCA
sentence is not unlawful.
Petitioner
marijuana
also
offenses
believes
more
that
harshly
where
than
Oregon
the
CSA
punishes
would,
his
such
a
sentencing scheme violates his right to equal protection because it
imposes
radically
defendants.
different
sentences
on
similarly
situated
He asserts that his right to equal protection is
violated in two different ways:
(1) had petitioner been prosecuted
in federal court for the same crime, he would not have garnered an
ACCA predicate conviction because his crime involved less than 50
kilograms of marijuana; and (2) individuals convicted of identical
marijuana
offenses
in
many
state
courts,
such
as
those
in
Washington, New York, and Texas, would not have an ACCA predicate
conviction due to the sentencing schemes they employ.
"[A]
'wide disparity' between sentencing schemes of different
jurisdictions does not violate equal protection,
persons
who
sentences."
commit
the
same
crime
are
subject
even where two
to
U.S. v. Oaks, 11 F.3d 897, 899 (9th Cir. 1993)
9 - OPINION AND ORDER
different
(quoting
United States
Moreover,
v.
Kinsey,
843 F.2d 383,
393-94
(9th Cir.
1988)).
the Equal Protection Clause is not offended where the
ACCA punishes similarly situated defendants differently based upon
disparities in state sentencing laws that result in some defendants
being subject to the ACCA's 15-year mandatory minimum sentence,
while others are not. 3
Cir.
2014).
U.S.
Consequently,
v.
Titley,
770 F.3d 1357, 1362
(10th
petitioner's equal protection claims
lack merit.
For all of these reasons,
petitioner cannot establish his
actual innocence to satisfy the escape hatch of 28 U.S.C.
§
2255(e)
and establish habeas corpus jurisdiction.
CONCLUSION
The Petition for Writ of Habeas Corpus (#1) is dismissed, with
prejudice,
for lack of jurisdiction.
3
The court does,
however,
Petitioner has raised two Equal Protection arguments, but
has neglected a third, compelling argument.
Petitioner addressed
Equal Protection arguments rooted in differences between federal
and state sentences and in differences between two states.
Neither argument is persuasive. However, Petitioner also raised,
but did not fully address, a third Equal Protection argument that
is based in differences between federal circuits.
Equal
Protection concerns may be implicated when courts in different
circuits, as a result of different statutory interpretations of
the ACCA, reach different outcomes for similarly situated
defendants. By way of explanation, currently a defendant in the
Fourth Circuit and a defendant in the Ninth Circuit, even if
faced with identical state sentencing systems, would have
different outcomes when prosecuted under the ACCA - a difference
that rests solely on the different federal sentencing law
methodologies reflected in the circuit split.
Such an Equal
Protection claim was noted, but not fully explored, by the Ninth
Circuit in Habibi v. Holder.
Habibi v. Holder, 673 F.3d 1082,
1088 (9th Cir. 2011).
10 - OPINION AND ORDER
grant a certificate of appealability on the issues of:
petitioner
has
made
a
showing
of
actual
innocence
establish habeas corpus jurisdiction; and (2)
imposition
of
petitioner's
ACCA
(1) whether
so
sentence
violates
ORDE~D.
DATED this
--l..l2-
day of August, 2015.
Judge
11 - OPINION AND ORDER
to
if so, whether the
constitutional rights.
IT IS SO
as
his
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