Sinclair v. Willis

Filing 3

MEMORANDUM OPINION AND ORDER. Signed by Judge David Briones. (ar)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

0

SINCLAIR,
Reg. No. 06088-097,
Petitioner,

JOHN

1

110:

3

F

§

§
§
§

v.

EP-17-CV-58-DB

§
§

J. SCOTT WILLIS, Warden,
Respondent.

§
§

MEMORANDUM OPINION AND ORDER
John 0. Sinclair seeks relief from his federal sentence through a petition under 28 U.S.C.

§

2241

(ECF No. 1). After reviewing the record and for the reasons discussed below, the Court will sua sponte

dismiss the petition, pursuant to 28 U.S.C. § 2243.1
Sinclair, a federal prisoner at the La Tuna Federal Correctional Institution in Anthony, Texas,2

was sentenced to 322 months' imprisomnent by the United States District Court for the Eastern District of

North Carolina in cause number 7:02-cr-0003 1-H-i after he pleaded guilty to possessing with the intent to
distribute at least 50 grams of cocaine base (crack) and using and carrying a firearm during and in relation

to a drug trafficking offense. In his petition, Sinclair is not asserting factual innocence of his crime of
conviction; he is challenging the career offender enhancement to his sentence. Specifically, he claims he
is actually innocent of his 1993 guilty-plea convictions in cause number 93-CRS-10364 in the Superior
Court for Robeson County of North Carolina for assault with a deadly weapon inflicting serious injury and
28 U.S.C. § 2243 (2012) ("A court. . . entertaining an application for a writ of habeas corpus shall
forthwith award the writ or issue an order directing the respondent to show cause why the writ should not
be granted, unless it appears from the application that the applicant or person detained is not entitled
thereto.").

Anthony is located in El Paso County, Texas, which is within the territorial confines of the Western
District of Texas. 28 U.S.C. § 124(d)(3) (2012).
2

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6

other offenses.3 He asserts the North Carolina District Court should not, therefore, have relied on this
state conviction to enhanced his sentence as a career offender pursuant to Sentencing Guidelines §
4B1.14

and 4B1.25 after he pleaded guilty in cause number 7:02-cr-0003 1-H-i.6 He asks the Court to

vacate his conviction in cause number 93-CRS-10364, vacate his sentence in 7:02-cr-0003 1-H-i,

resentence him in 7 :02-cr-0003 1-H-i without the application of the career offender enhancement, and
order his immediate release from federal custody.

"A section 2241 petition for habeas corpus on behalf of a sentenced prisoner attacks the manner in
which his sentence is carried out or the prison authorities' determination of its duration."7 To prevail, a §
Sinclair presents documents which show on June 15, 2016, the Superior Court of Robeson County
denied his motion for appropriate relief in which he alleged his actual innocence in cause number
93-CRS-10364. See Pet'r's Pet. 13-14, Feb. 27,2017, ECF No. 1. The documents further show Sinclair
filed a notice of appeal, which the Court of Appeals of North Carolina rejected because a party seeking
appellate review of an order denying a motion for appropriate relief must file a petition for writ of
certiorari. Id. at 16. The North Carolina Supreme Court also dismissed his notice of appeal. Id. at 15.
In sum, Sinclair provides no evidence that any court has vacated or set aside his conviction in cause
number 93-CRS-10364.
See U.S. SENTENCiNG GUIDELiNES MANUAL § 4B1.i (U.S. SENTENCiNG COMM'N 2001)
("A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the
defendant committed the instant offense of conviction, (2) the instant offense of conviction is a felony that
is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior
felony convictions of either a crime of violence or a controlled substance offense. . . . A career offender's
criminal history category in every case shall be Category VI.").
See id. § 4B1.2(a) ("The term 'crime of violence' means any 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.").
o

See Beckles v. United States, 137 5. Ct. 886, 892 (2017) ("[T]he Guidelines are not subject to a
vagueness challenge under the Due Process Clause. The residual clause in § 4B 1 .2(a)(2) therefore is not
void for vagueness.").

Pack v.

Yusuff,

218 F.3d 448, 451(5th Cir. 2000) (citations omitted).
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2241 petitioner must show that he is "in custody in violation of the Constitution or laws or treaties of the

United

States."8

A § 2241 petitioner may make this attack only in the district court with jurisdiction over

his custodian.9 By contrast, a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. §
2255 "provides the primary means of collateral attack on a federal sentence."° Thus, relief under §
2255 is warranted for errors that occurred at trial or sentencing.1' A § 2255 petitioner may only bring his

motion in the district of conviction and sentence. 12

Section 2255 does contain a "savings clause" which acts as a limited exception to these general
rules. It provides that a court may entertain a petition for writ of habeas corpus challenging a federal
criminal conviction

if it concludes that filing a motion to vacate, set aside or correct sentence pursuant to §

2255 is inadequate to challenge a prisoner's detention.'3 Furthermore, a petitioner must satisfy a

two-prong test before he may invoke the "savings clause" to address errors occurring at trial or sentencing
8

28 U.S.C. § 2241(c) (2012).

United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992).
10

Pack, 218 F.3d at 451 (quoting Cox

v.

Warden, 911 F.2d 1111, 1113 (5th Cir. 1990)).

See Cox, 911 F.2d at 1114 (5th Cir. 1990) ("The district court's dismissal of these grounds clearly was

proper because they concerned alleged errors that occurred at sentencing and, therefore, may be remedied
under section 2255."); Ojo v. INS, 106 F.3d 680, 683 (5th Cir. 1997) ("Because all of the errors Ojo alleges
[occurred before or during sentencing], they must be addressed in a § 2255 petition, and the only court
with jurisdiction to hear that is the court that sentenced him."); Solsona v. Warden, F.C.I, 821 F.2d 1129,
1131(5th Cir. 1987) (explaining that, because defendant's claims attacked the constitutionality of his
conviction and proof of his claims would undermine the validity of his conviction, his exclusive initial
remedy was a motion under 2255).
12

Pack, 218 F.3d at 452.

13

See 28 U.S.C. 2255(e) ("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 ofhis detention.") (emphasis added).
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in a petition filed pursuant to § 2241:
[T]he savings clause of § 2255 applies to a claim (i) that is based on a
retroactively applicable Supreme Court decision which establishes that the
petitioner may have been convicted of a nonexistent offense and (ii) that
was foreclosed by circuit law at the time when the claim should have been
raised in the petitioner's trial, appeal, or first § 2255 motion.'4
A petitioner must prove both prongs to successfully invoke the savings clause.15 Thus, § 2241 is not a

mere substitute for § 2255, and a petitioner bears the burden of showing that the § 2255 remedy is
inadequate or ineffective. 16
Sinclair filed a § 2255 motion in the North Carolina District Court.'7 He claimed his "sentence is

unconstitutional as his guideline base offense level was improperly enhanced after Johnson

v.

United

States, 125 S. Ct. 2552 (2015).18 The North Carolina District Court held the motion in abeyance
pending the Supreme Court's final decision in Beckles v. United States.'9 In Beckles, the Supreme Court

recently held "the Guidelines are not subject to a vagueness challenge under the Due Process Clause. The
residual clause in

§

4B1.2(a)(2) therefore is not void for vagueness."20 Although the North Carolina

District Court has not yet acted on Sinclair's § 2255 motion, the Court assumes, based on Beckles, that it
14

Reyes-Requena

v.

United States, 243 F.3d 893, 904 (5th Cir. 2001).

Padilla v. United States, 416 F.3d 424, 426 (5th Cir. 2005).
16

Reyes-Requena, 243 F.3d at 901 (citing Pack, 218 F.3d at 452; Kinder v. Purdy, 222 F.3d 209, 214 (5th
Cir. 2000)).

' Mot. to Vacate, ECF No 71, June 27, 2016, Sinclair v. United States, 7:02-CR-3 1-H-i; 7:1 6-CV-220-H
(E.D.N.C.).
18

Id.

at4.

' Order, Aug. 24, 2016, ECF No. 78, Sinclair v. United States, 7:02-CR-3 1-H-i; 7:16-CV-220-H
(E.D.N.C.).
20

Beckles, 137 5. Ct. at 892.
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will deny him relief. The Fifth Circuit has held that "[t]his Court and other Courts of Appeals have

consistently noted that

'a prior unsuccessful [section] 2255 motion is insufficient, in and of itself, to show

the inadequacy or ineffectiveness of the remedy."21 The Court finds that any assertion by Sinclair that §
2255 is an inadequate or ineffective means of attacking his current confinement would be unpersuasive.

Furthermore, Sinclair is not asserting his factual innocence with regard to his crime of conviction

in the North Carolina District Court, but he is challenging the career offender enhancement to his
sentence. Sinclair may proceed with an attack on the validity of hi sentence in a § 2241 petition only if
he can meet both prongs of the stringent test for the § 2255(e) "savings

clause."22

The first prong of the test is, essentially, an "actual innocence" requirement whose "core idea is

that the petitioner may be have been imprisoned for conduct which was not prohibited by law."23 To
meet the first prong, a petitioner must rely on a retroactively applicable Supreme Court decision which
establishes that he may have been convicted of a nonexistent

offense.24

Sinclair's claim challenging the

enhancement of his sentence under Sentencing Guidelines § 4B 1.1 and 4B 1.2based in part on his 1993
conviction in cause number 93 -CRS-103 64 in the Superior Court for Robinson County of North Carolina
for assault with a deadly weapon inflicting serious

injuryfails to satisfr the first prong.

He has not

alleged or shown that he "was convicted of a nonexistent offense" in the North Carolina District Court, and
his claim "has no effect on whether the facts of his case would support his conviction for the substantive

21

Pack, 218 F.3d at 452 (quoting McGhee

22

Kinder, 222 F.3d at 212.

23

Reyes-Requena, 243 F.3d at 903.

24

Id. at 904.

v.

Hanberry, 604 F.2d 9, 10 (5th Cir. 1979)).

offense."25

Therefore, since Sinclair's claim does not meet the stringent requirements of the savings

clause, the Court will not allow him to proceed with this claim pursuant to § 2241.
As stated above, 28 U.S.C. § 2241 does not provide the authority for the Court to address Sinclair's
claims. The Court will, therefore, dismiss Sinclair's petition as frivolous, and to the extent that Sinclair's

petition may be construed as a § 2255 motion, the Court will dismiss it for lack ofjurisdiction.26
Accordingly, the Court enters the following orders:

IT IS ORDERED that Petitioner John 0. Sinclair's pro se petition for a writ of habeas corpus
under 28 U.S.C. § 2241 (ECF No. 1) is DISMISSED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that all pending motions in this cause, if any, are DENIED AS
MOOT.

IT IS FINALLY ORDERED that the Clerk shall CLOSE this case.

II.J 1

I) al

1 all]

SIGNED this 13th day of April, 2017.

DAVID
SENIOR

25

Padilla, 416 F.3d at 427 (emphasis added).

26

Ojo, 106 F.3d at 683.

0

S

TED STATES DISTRICT JUDGE