Motley v. Batts
Filing
17
ORDER DENYING PETITION UNDER 28 U.S.C. § 2241, CERTIFYING APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by Judge Thomas L. Parker on 9/2/2020. (kll)
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
TERENCE MOTLEY,
Petitioner,
v.
MYRON BATTS,
Respondent.
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No. 2:17-cv-02661-TLP-tmp
ORDER DENYING PETITION UNDER 28 U.S.C. § 2241, CERTIFYING APPEAL
WOULD NOT BE TAKEN IN GOOD FAITH, AND DENYING LEAVE TO PROCEED
IN FORMA PAUPERIS ON APPEAL
Petitioner Terence Motley 1 petitions for a writ of habeas corpus under to 28 U.S.C. §
2241 (“§ 2241”). (ECF No. 1.) Because courts do not recognize the issue presented here in a §
2241 petition, the Court DENIES the § 2241 Petition.
PROCEDURAL HISTORY
I.
Petitioner’s Federal Criminal Case and Collateral Challenges
In October 2000, a federal grand jury in the Western District of Tennessee indicted
Petitioner with two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. §
922(g) (Counts One and Two), and one count of being a felon in possession of ammunition, in
violation of § 922(g) (Count Three). United States v. Motley, 93 Fed. Appx. 898, 900 (6th Cir.
2004). Count Three was severed before Petitioner’s trial on Counts One and Two. Id. In 2001,
1
Petitioner is a federal prisoner. The Bureau of Prisons has assigned him number 17588-076
and houses him at the Federal Correction Institution (FCI) in Memphis, Tennessee.. District
Court records reflect different spellings of Petitioner’s first name, including “Terrance,”
“Terrence,” and “Terence.”
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a jury convicted Petitioner on Counts One and Two. Id.
Because he had two prior felony convictions for crimes of violence, under the United
States Sentencing Guidelines (“U.S.S.G.”) Petitioner’s base offense level was enhanced to level
26 under § 2K2.1(a)(1)(B).,. 2 (Civ. Case No. 16-2903, ECF No. 1 at PageID 1–2.) The trial
court sentenced Petitioner to 120 months imprisonment on each count, to be served
consecutively, for a total 240 months incarceration. (Cr. Case No. 00-20195, ECF No. 129.)
The Court ordered 140 months of the sentence to be served concurrently with Petitioner’s service
of a state court sentence, with the remaining 100 months to be served consecutive to his state
court sentence. Id. Count Three was dismissed upon the government’s motion at sentencing. Id.
Petitioner appealed to the Sixth Circuit , challenging 1) the sufficiency of the evidence
supporting his convictions; 2) the propriety of the Court’s denial of his motions to suppress; 3)
the government’s use of a prior conviction for impeachment purposes; and 4) the Court’s
enhancement of his offense level, under U.S.S.G. § 2K2.1(b)(5), for using a firearm as part of
another felony offense. Motley, 93 Fed. Appx. at 900–03. The Court of Appeals affirmed
Petitioner’s convictions and sentences. Id. at 903.
In early 2005, Petitioner moved for habeas relief pro se under to 28 U.S.C. § 2255 (“§
2255 Motion”). (See Civ. No. 05-2239, ECF No. 1.) In March 2007, the Court denied that
motion, denied a certificate of appealability, certified that an appeal would not be taken in good
faith, and denied leave to proceed in forma pauperis on appeal. (Id. at ECF No. 4.) The Court
then entered Judgment. (Id. at ECF No. 5.) Petitioner did not seek a certificate of appealability
from the Sixth Circuit. (See Civ. Case No. 05-2239.)
2
A “crime of violence” for purposes of § 2K2.1(a)(1)(B) is defined by § 4B1.2(a). U.S.S.G. §
2K2.1, cmt. n. 1. (See Civ. Case No. 16-2903, ECF No. 1.) Petitioner’s predicate convictions
were for (a) Tennessee aggravated assault and (b) Tennessee aggravated burglary. Id.
2
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In early 2015, Petitioner petitioned pro se under § 2241. (See Civ. No. 15-2128, ECF No.
1.) The Court denied his § 2241 Petition because Petitioner could not challenge his sentence
under § 2241 as he had not proved actual innocence under the savings clause of 28 U.S.C §
2255(e). (Id., ECF No. 13 at PageID 76-77.) Petitioner appealed. (Id., ECF No. 15.)
Later, the Sixth Circuit affirmed the dismissal of the § 2241 Petition, noting that
Petitioner raised new arguments that he had not presented in the district court. (Id., ECF No. 21.)
Those arguments included the argument he raises now in the present § 2241 Petition (No. 172661) that his Tennessee aggravated burglary conviction no longer qualifies as a crime of
violence. (Civ. No. 15-2128, ECF No. 21 at PageID 96–97.) The Sixth Circuit refused to
consider that argument. (Id. at PageID 97.) The court held that Petitioner cannot rely on Hill v.
Masters, 836 F.3d 591 (6th Cir. 2016), because Hill applied only to career-offender sentences
and that was not the basis of Petitioner’s § 2241 Petition before the district court. (Civ. No. 152128, ECF No. 21 at PageID 97.) The Sixth Circuit affirmed the dismissal of his petition. Id.
Petitioner then moved in the Sixth Circuit for an order authorizing a second or successive
§ 2255 motion to seek relief under Johnson v. United States, 576 U.S. 591 (2015). (See Civ. No.
16-2903, ECF No. 1.) The Sixth Circuit then granted Petitioner’s motion considering the thenpending en banc rehearing in United States v. Stitt, 830 F.3d 854 (6th Cir. 2017). 3 (Id. at PageID
3.) The Sixth Circuit transferred the case to this Court.
In August 2017, the Sixth Circuit held that the statute of limitations bars § 2255 Motions
seeking to apply Johnson to pre-Booker sentences (like Petitioner’s). Raybon v. United States,
867 F.3d 625, 630–31 (6th Cir. 2017). And so, the Court denied Petitioner’s second § 2255
3
On June 27, 2017, the Sixth Circuit held that Tennessee’s aggravated burglary statute does not
qualify as a predicate offense under the ACCA. (Id.)
3
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Motion based on the decisions in Beckles and Raybon. 4 (See Civ. No. 16-2903, ECF No. 9.)
II.
This § 2241 Petition
Petitioner contends that he is factually innocent of being sentenced as a “career offender”
in violation of his due process rights under the Fifth Amendment. (Civ. No. 17-2661, ECF No. 1
at PageID 4, 15.) He claims that the trial court sentenced him as a “career offender” under the
mandatory guidelines, but now his Tennessee conviction for aggravated burglary under Tenn.
Code Ann. § 39-14-403, no longer qualifies as an enumerated violent felony. (Id. at PageID 5.)
Also Petitioner relies on Hill, asserting that he can bring a successive habeas petition
under § 2241 where the remedy under § 2255 would be inadequate or ineffective. (Id. at PageID
10.) He then relies on Mathis v. United States, 136 S. Ct. 2243 (2016), as a new statutory
interpretation which clarifies that the modified categorical approach applies to a statute that sets
forth alternate ways to commit a single crime. (Id.) He claims that Mathis is retroactive and
could not have been invoked in his initial § 2255 Motion. (Id. at PageID 11–12.) Petitioner
further contends that the Sixth Circuit held in Stitt that a conviction for Tennessee aggravated
burglary is not a felony under the Armed Career Criminal Act. 5 (Id. at PageID 11.) Petitioner
alleges that his statutory maximum was 120 months in prison and that he is entitled to immediate
release. (Id. at PageID 9, 15–16.)
ANALYSIS OF PETITIONER’S CLAIM
I.
The Standard for § 2241 Petitions
4
Petitioner tried to raise claims unrelated to his Johnson claim to the Sixth Circuit for further
proceedings. The order of dismissal transferred all non-Johnson claims to the Sixth Circuit for
further proceedings. (Id. at PageID 114)
5
As explained below, the Supreme Court reversed the 6th Circuit in Stitt.
4
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This Court may issue a writ of habeas corpus under 28 U.S.C. § 2241(c)(3) when a
prisoner “is in custody in violation of the Constitution or laws or treaties of the United States.”
Federal prisoners may obtain habeas corpus relief under 28 U.S.C. § 2241 only under limited
circumstances. The “savings clause” in § 2255 provides as follows:
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.
28 U.S.C. § 2255(e).
“Construing this language, courts have uniformly held that claims asserted by federal
prisoners that seek to challenge their convictions or imposition of their sentence shall be filed in
the sentencing court under 28 U.S.C. § 2255, and that claims seeking to challenge the execution
or manner in which the sentence is served shall be filed in the court having jurisdiction over the
prisoner’s custodian under 28 U.S.C. § 2241.” Charles v. Chandler, 180 F.3d 753, 755–56 (6th
Cir. 1999) (per curiam) (citations omitted); see also United States v. Peterman, 249 F.3d 458,
461 (6th Cir. 2001) (“Section 2255 is the primary avenue for relief for federal prisoners
protesting the legality of their sentence, while § 2241 is appropriate for claims challenging the
execution or manner in which the sentence is served.”). In this case, Petitioner is attacking the
imposition of his sentence. For that reason, habeas relief is not available to him unless relief
under § 2255 is inadequate or ineffective. Petitioner has the burden of proving that the § 2255
savings clause applies. Charles, 180 F.3d at 756.
“The circumstances in which § 2255 is inadequate and ineffective are narrow . . . .”
Peterman, 249 F.3d at 461. “[T]he § 2255 remedy is not considered inadequate or ineffective
simply because § 2255 relief has already been denied, or because the petitioner is procedurally
5
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barred from pursuing relief under § 2255, or because the petitioner has been denied permission to
file a second or successive motion to vacate.” Charles, 180 F.3d at 756 (citations omitted).
A prisoner can obtain relief under § 2241 only if he is “actually innocent” of the crime of
which he has been convicted. Martin v. Perez, 319 F.3d 799, 804–05 (6th Cir. 2003); see also
Charles, 180 F.3d at 757 (explaining that no circuit court has yet allowed a post-AEDPA
petitioner not making a claim of actual innocence to use § 2241 (through § 2225’s saving clause)
to overcome § 2225’s restrictions on filing second or successive habeas petitions). “Actual
innocence means factual innocence,” not just legal insufficiency. Paulino v. United States, 352
F.3d 1056, 1061 (6th Cir. 2003) (citing Bousley v. United States, 523 U.S. 614, 623 (1998)).
Until recently, “[c]laims alleging ‘actual innocence’ of a sentencing enhancement [could not] be
raised under § 2241.” Jones v. Castillo, 489 F. App'x 864, 866 (6th Cir. 2012).
In Hill, 836 F.3d at 595, the Sixth Circuit held that inmates can challenge their sentences
under § 2241 if they can show “(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.” The third
requirement is satisfied where
(1) prisoners . . . are sentenced under the mandatory guidelines regime pre-United
States v. Booker, 543 U.S. 220 (2005), (2) . . . are foreclosed from filing a
successive petition under § 2255, and (3) . . . 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 599–600 (parallel citations omitted).
Showing that the inmate had no previous opportunity to present his claim is crucial:
So in this circuit, a federal prisoner who has already filed a § 2255 motion
and cannot file another one cannot access § 2241 just because a new Supreme
Court case hints his conviction or sentence may be defective. Rather, the prisoner
must also show that binding adverse precedent (or some greater obstacle) left him
6
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with no reasonable opportunity to make his argument any earlier, either when he
was convicted and appealed or later when he filed a motion for postconviction
relief under section 2255. Otherwise, § 2255 is simply not inadequate or
ineffective to test his claim. And nothing in this court’s later precedents gainsays
this principle.
Wright v. Spaulding, 939 F.3d 695, 703 (6th Cir. 2019) (internal quotation marks, brackets,
citation, and footnote omitted); see also id. at 705 (“[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.”).
In 2020, the Sixth Circuit again limited the § 2241 remedy, holding that, “[i]n addition to
whatever else our reasonable-opportunity standard demands, it requires a Supreme Court
decision that adopts a new interpretation of a statute after the completion of the initial § 2255
proceedings.” Hueso v. Barnhart, 948 F.3d 324, 333 (6th Cir. 2020). Thus, the court cannot
provide the remedy when a prisoner claims that he is actually innocent of his sentence because of
a circuit court decision. Id. at 326, 332, 335, 339.
II.
Analysis
Petitioner has no right to relief on his § 2241 Petition. The instant petition challenges the
imposition of Petitioner’s sentence, not its execution. See Romo v. Ormond, No. 17-6137, 2018
WL 4710046, at *2 (6th Cir. Sept. 13, 2018) (“the proper manner for pursuing his claim is a §
2255 motion”). Petitioner presents no argument that he is actually innocent of being a felon in
possession. Instead, he challenges the trial court’s enhancement of his base offense level under
U.S.S.G. § 2K2.1(a)(1)(B) and its imposition of consecutive ten-year sentence for the two counts
of conviction.
Petitioner makes flawed arguments. Petitioner possessed two firearms on two different
dates and was convicted of two violations of 18 U.S.C. § 922(g). Each conviction carried a
7
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statutory maximum sentence of ten years in prison. The statutory maximum applicable to
Petitioner was twenty years in prison, and he was properly sentenced. Moreover, the trial court
did not sentence Petitioner as a career offender under U.S.S.G. § 4B1.1 or as an armed career
criminal under 18 U.S.C. § 924(e)(1). At sentencing, the trial court found his offense level was
level 26 under U.S.S.G. § 2K2.1(a) because he had two prior felony crimes of violence as
defined by U.S.S.G. § 4B1.2(a). This decision remains proper because in Beckles v. United
States, the Supreme Court held that the decision in Johnson did not apply to the identically
worded residual definition of “crime of violence” in U.S.S.G. § 4B1.2(a) because the advisory
“[g]uidelines are not amenable to a vagueness challenge.” 137 S. Ct. 885, 894 (2017).
Petitioner cannot show that his remedy under 28 U.S.C. § 2255 was inadequate or
ineffective. He has appealed two § 2255 motions and an earlier § 2241 Petition. He raised the
same argument based on Stitt in his second § 2255 Motion. 6 (See Civ. No. 16-2903, ECF No. 2
at PageID 13.) What is more, the Sixth Circuit’s decision in Mathis did not announce a new rule
of constitutional law and has not been made retroactive by the Supreme Court. In re
Conzelmann, 872 F.3d 375, 377 (6th Cir. 2017). Plus Hill does not permit § 2241 relief for a
claim that a prisoner is actually innocent of a sentencing enhancement because of a circuit court
decision. See supra p. 7. As a result, law cuts against Petitioner at every turn here. This Court
6
Although the Sixth Circuit held that “a conviction under the [Tennessee aggravated burglary]
statute does not qualify as an ACCA predicate offense” Stitt, 860 F.3d at 857, the United States
Supreme Court reversed the Sixth Circuit’s decision in Stitt. United States v. Stitt, 139 S. Ct. 399
(2018). Later, the Sixth Circuit held that Tennessee convictions for aggravated burglary qualify
as “violent felonies” under the enumerated offenses clause of the definition of violent felony in
the ACCA. Brumbach v. United States, 929 F.3d 791, 794–795 (6th Cir. 2019), cert. denied (U.S.
Jan. 27, 2020); see United States v. Crutchfield, 785 F. App’x 321 (6th Cir. 2019), cert. pet.
docketed Crutchfield v. United States, No. 19-7313 (U.S. Jan. 15, 2020).
8
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therefore DISMISSES WITH PREJUDICE the § 2241 Petition. The court will enter Judgment
for Respondent.
APPELLATE ISSUES
Federal prisoners who file petitions under 28 U.S.C. § 2241 challenging their federal
custody need not obtain certificates of appealability under 28 U.S.C. § 2253(c)(1). Witham v.
United States, 355 F.3d 501, 504 (6th Cir. 2004); Melton v. Hemingway, 40 F. App'x 44, 45 (6th
Cir. 2002).
A habeas petitioner seeking to appeal must pay the $505 filing fee required by 28 U.S.C.
§§ 1913 and 1917. To appeal in forma pauperis in a habeas case under 28 U.S.C. § 2241, the
petitioner must obtain pauper status under Fed. R. App. P. 24(a). Kincade v. Sparkman, 117 F.3d
949, 952 (6th Cir. 1997). Rule 24(a) provides that a party seeking pauper status on appeal must
first move in the district court, along with a supporting affidavit. Fed. R. App. P. 24(a)(1). Even
so, Rule 24(a) also provides that if the district court certifies that an appeal would not be taken in
good faith, or otherwise denies leave to appeal in forma pauperis, the petitioner must move to
proceed in forma pauperis in the appellate court. See Fed. R. App. P. 24(a)(4)–(5).
Here, because Petitioner is not entitled to relief, the Court determines that any appeal
would not be taken in good faith. The Court therefore CERTIFIES, under Fed. R. App. P.
24(a), that any appeal here would not be taken in good faith. The Court DENIES leave to appeal
in forma pauperis. 7
SO ORDERED, this 2nd day of September, 2020.
s/Thomas L. Parker
THOMAS L. PARKER
UNITED STATES DISTRICT JUDGE
7
If Petitioner files a notice of appeal, he must also pay the full $505 appellate filing fee or move
to proceed in forma pauperis and supporting affidavit in the United States Court of Appeals for
the Sixth Circuit within 30 days.
9
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