Johnson v. Willis et al

Filing 2

MEMORANDUM OPINION AND ORDER. CERTIFICATE OFAPPEALABILITY is denied. Dismissed without prejudice.(lc3)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEX4.,
EL PASO DIVISION

F!LED
19
I

°"

2 53

L:OT COURT

KENNETH RAY JOHNSON,

§
§
§

Reg. No. 38827-177,

Petitioner,

i

LUi

uf'i

OF TEXAS

0 E UT Y

§

v.

EP-17-CV-182-FM

§
§

SCOTT WILLIS, Warden,
Respondent.

§
§

MEMORANDUM OPINION AND ORDER
Petitioner Kenneth Ray Johnson seeks relief from his sentence through apro se "Petition
for Writ of Habeas Corpus Under to 28 U.S.C. § 2241" (ECF No. 1). Johnson, a federal prisoner
at the La Tuna Federal Correctional Institution in Anthony, Texas,' explains the United States

District Court for the Northern District of Texas sentenced him under the United States Sentencing

Guidelines ("USSG") as a career

offender.2

He adds his prior state-court convictions no longer

qualif' as predicate offenses for career offender enhancements.3 Johnson argues "his sentence is
therefore in excess of the maximum authorized by

law"4

He asks the Court to grant his petition,

vacate his sentence, and resentence him.5 After reviewing the record and for reasons discussed

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

Mem. in Supp. 1, ECF No. 1-1.
Id. at 7.

'

Id. at 4.
Id. at 10.
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below, the Court will sua sponte dismiss Johnson's petition, pursuant to 28 U.S.C. § 2243.6

BACKGROUND AND PROCEDURAL HISTORY
According to court records in case number 5:09-CR-43-C-16 in the District Court for the

Northern District of Texas,7 on March 12, 2009, a cooperating individual ("CI") working with
Texas Department of Public Safety ("DPS") officers in Lubbock, Texas, made arrangements to

purchase approximately one ounce of methamphetamine from Johnson during a

consensually-recorded telephone conversation. While under surveillance by DPS officers, the CI

took $1,400 in cash from DPS funds to Johnson's house in Levelland, Texas. While at the house,
the CI accepted what Johnson described as one ounce of methamphetamine in exchange for the
cash. After the transfer, the CI turned the substance over to the DPS officers, who forwarded it to

the South Central Laboratory in Dallas, Texas, for analysis. The analysis revealed the substance
the CI purchased from Johnson had a gross weight of 26.8 grams and contained 5.68 grams of
actual methamphetamine.

A grand jury returned a 117-count superseding indictment charging Johnson and

twenty-eight other defendants with multiple drug-trafficking offenses.8 Johnson elected to forgo
trial and pleaded guilty, pursuant to a plea agreement, to count 18 of the indictment, which charged

6

See 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.").

See Factual Resume 2-10, Nov. 12, 2009, ECF No. 768, United States v. Johnson,
5:09-CR-43-C-16 (N.D. Tex.).
8

Superseding Indictment, Aug. 12, 2009, ECF No. 587, United States v. Johnson,
5:09-CR-43-C-16 (N.D. Tex.).
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him with distributing methamphetamine and aiding and abetting? As part of the plea agreement,
Johnson waived his right, with limited exceptions, to attack his sentence in a direct appeal or

collateral challenge:

Johnson waives his rights, conferred by 28 U.S.C. § 1291 and 18
U.S.C. § 3742, to appeal from his conviction and sentence. He
further waives his right to contest his conviction and sentence in any
collateral proceeding, including proceedings under 28 U.S.C. §
2241 and 28 U.S.C. § 2255. Johnson, however, reserves the right:
(a) to bring a direct appeal of a sentence exceeding the statutory
maximum unishment, and (b) any claims of ineffective assistance
of counsel.
Johnson also agreed in the plea agreement he was a career offender and acknowledged the Court
would sentence him, pursuant to USSG § 4Bl.l, as a career offender:

Additionally, the government agrees to forebear the filing of a 21
U.S.C. § 851 Enhancement Information predicated upon Johnson's
five prior convictions for "felony drug offenses" which have
become final. However, the defendant does understand and agree
that these convictions, will be considered in the calculation of his
USSG sentence computation. Specifically, defendant Kenneth
Ray Johnson admits and acknowledges pursuant to USSG § 4B 1.1
that (1) he was at least eighteen years old at the time he committed
the instant offense of conviction; (2) the instant offense of
conviction, Count 18 charging Distribution of Methamphetamine on
March 12, 2009, is a felony that is a "controlled substance offense,"
that is, an offense under federal law, punishable by imprisonment
for a term exceeding one year, that prohibits the distribution of a
controlled substance, as defined in USSG § 4B 1.2(b); and (3) the
defendant has at least "two prior felony convictions" for controlled
substance offenses, as that term is defined in USSG § 4B 1.2(c). In
this regard, the defendant admits and acknowledges that he is one
and the same person who, under the name "Kenneth Ray Johnson,"
was on September 23, 2004, convicted of the First Degree felony
controlled substance offense of Unlawful Possession With Intent to

Plea Agreement 1, Nov. 12, 2009, ECF No. 767, Nov. 12, 2009, United States v. Johnson,
5:09-CR-43-C-16 (N.D. Tex.).
10

Id. at 6-7.
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Deliver a Controlled Substance, to wit: Methamphetamine, in
Criminal District Court of Dallas County, Texas, in Cause Number
F0434640HL (date offense committed, March 11, 2004). Further,
the defendant admits and acknowledges that he is one and the same
person who, under the name "Kenneth R. Johnson," was on
September 13, 2005, convicted of the First Degree felony controlled
substance offense of Possession of a Controlled Substance With
Intent to Deliver P01 Methamphetamine Less Than 200 Grams But
At Least 4 Grams, in the 3 64th District Court of Lubbock County,
Texas, in Cause Number 2000-435202 (date offense committed,
September 17, 2000). Thus the defendant agrees and stipulates that
he is a "Career Offender" and will be sentenced pursuant to the
provisions of USSG § 4B1.l as a "Career Offender," with a Base
Offense Level of 32, Criminal History Category VI, since the
statutory maximum sentence for the offense of conviction is 20
years or more, but less than 25 years. See 4B1.1(b)(C)."
In exchange, the Government agreed it would not bring additional charges against Johnson and it

would move to dismiss the remaining counts against him.'2

At Johnson's re-arraignment, the Court found that Johnson was "fully competent and
capable of entering an informed plea and that his plea of guilty [was] a knowing and voluntary plea

supported by an independent basis in fact containing each of the essential elements of the offense

charged in Count 18."'

The Court accepted Johnson's plea and sentenced him to 160 months'

imprisonment followed by ten years' supervised release. 14 Johnson did not appeal.

Johnson filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence in

Id, at 4-5.
12

'

Id. at4.

Plea Tr. 7, Mar. 11, 2011, ECF No. 1052, United States v. Johnson, 5:09-CR-43-C-l6 (N.D.

Tex.).
14

J., Mar. 5, 2010, ECF No. 988, United States

v.

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Johnson, 5:09-CR-43-C-16 (N.D. Tex.).

the Northern District of Texas.15 Johnson asserted the Court violated the Double Jeopardy Clause
by awarding him nine criminal history points and punishing him twice for the same conduct. He
also challenged the 160-month sentence as improperly disparate from that of his co-defendants.

The Government countered that Johnson waived his right to challenge his conviction on these

grounds as part of the plea agreement.16 The Court agreed thatbecause Johnson knowingly and
voluntarily waived his right to seek post-conviction relief except on limited grounds which were
not implicated by his double jeopardy or disparate sentence claimsthose grounds were barred
from collateral

review.17

Johnson also argued that he received ineffective assistance of counsel

because his attorney (1) failed to raise a double jeopardy defense against the application of the
USSG, (2) neglected to challenge his conviction for both the substantive methamphetamine

offense and aiding and abetting, and (3) did not argue that Johnson's sentence was disparate from

that of his co-defendants.'8 The Court found that it would have been futile for Johnson's attorney
to have raised these objections, and concluded that his attorney was not ineffective. Accordingly,

the Court denied Johnson § 2255

relief.'9

Johnson claimed in a subsequent § 2255 motion filed in the Northern District of Texas that

15

Mot. Vacate, Mar. 9, 2011, ECF No. 1049, United States
Tex.).
16

Gov't's Resp.

1,

v.

Johnson, 5:09-CR-43-C-16 (N.D.

Apr. 26, 2011, ECF No. 4, Johnson v. United States, 5:11-CV-49-C (N.D.

Tex.).

' Order 3, Sept. 23, 2012, ECF No. 7, Johnson
v. United States, 5:11-C V-49-C (N.D. Tex.).
18

Mot. Vacate 4, Mar. 9, 2011, ECF No. 1049, United States v. Johnson, 5:09-CR-43-C-16 (N.D.
Tex.).

' Order 7, Sept. 23, 2012, ECF No. 7,
Johnson v. United States, 5:11-C V-49-C (N.D. Tex.).
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he did not qualify as a career offender.2° The Court immediately transferred the motion to the
Fifth Circuit Court of Appeals for its consideration as a second or successive petition for relief.2'
The Fifth Circuit denied Johnson authorization to proceed with a successive
In his instant

§

§

2255

motion.22

2241 petition, Johnson claims that, in light of Mathis v. United States, 136

S. Ct. 2243 (2016), United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), and United States v.

Tanksley, 848 F.3d 347 (5th Cir. 2017), the Court should resentence him because his prior

convictions for possession of methamphetamine with the intent to deliver "under Texas Health &
Safety Code 481.112(a) ... do not qualify as predicate offenses to qualify him as a career offender

under 4B1.1, thus his sentence is in excess of the maximum authorized by law."23 He asks the
Court to resentence him without an enhancement.24

APPLICABLE LAW
"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."25

To prevail, a § 2241 petitioner must show that he is "in custody in violation of the

Constitution or laws or treaties of the United

States."26

A § 2241 petitioner may make this attack

20

Mot. Vacate, June 25, 2014, ECF No. 1092, United States v. Johnson, 5:09-CR-43-C-16 (N.D.
Tex.).
21

Order, June 26, 2014, ECF No. 3, Johnson v. United States, 5:14-C V-101-C (N.D. Tex.).

22

Order, Jan. 15, 2015, No. 14-10703, (5th Cir.).

23

Mem. in Supp. 10.

24

Id.

25

Pack v. Yusujj 218 F.3d 448, 451(5th Cir. 2000) (citations omitted).

26

28 U.S.C. § 2241(c) (2012).

only in the district court with jurisdiction over his custodian.27

By contrast, a motion to vacate or correct a sentence pursuant to 28 U.S.C. § 2255

"provides the primary means of collateral attack on a federal sentence."28 Relief under § 2255 is
warranted for errors that occurred at trial or sentencing.29 A § 2255 petitioner may only bring his
motion in the district of conviction and sentence.30
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' However,
a petitioner must satisfy a two-prong test before he may invoke the "savings clause" to address

errors occurring at trial or sentencing in a petition filed pursuant to § 2241:

27

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

28

Pack, 218 F.3d at 451 (quoting Cox v. Warden, 911 F.2d 1111, 1113 (5th Cir. 1990)).

29

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.L, 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).
30

Pack, 218 F.3d at 452.

' See 28 U.S.C. 225
5(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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[The 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.32
A petitioner must prove both prongs to successfully invoke the "savings clause."33 Section 2241
is not a mere substitute for § 2255, and a petitioner bears the burden of showing that the § 2255

remedy is inadequate.34

With these principles in mind, the Court turns to Johnson's claims.
ANALYSIS
In his petition, Johnson challenges the enhancements used to determine his sentence after
he pleaded guilty to one count of distributing methamphetamine and aiding and abetting in the

Northern District of Texas.35 Johnson claims that, in light of Mathis, Hinkle, and Tanksley, the

Court erred when it enhanced his punishment based on his prior statecourt felony convictions for
violations of Texas Health & Safety Code 481.112(a).36 He asks the Court to resentence him
without an enhancement.37 Notably, Johnson does not suggest he did not commit the federal
offense. He also does not suggest he did not commit the state offenses relied on by the Court to

32

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).
'

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)).

Pet'r's Pet. 6-7, ECF No.
36

1.

Mem. in Supp. 10.
Id.
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enhance his sentence.
In Mathis, the Supreme Court outlined the process by which a district court should

determine, for the purposes of the Armed Career Criminal Act, if a defendant's prior state-court

conviction was one of the enumerated violent felonies listed in 18 U.S.C.

§ 924(e)(2)(B)(ii).38

Prior to Mathis, the Supreme Court required a district court to compare the elements of the state
crime with the generic version of the enumerated federal offense. If the state crime was "the same
as, or narrower than, the relevant generic offense," then the state crime qualified as an enumerated
offense.39

The Court reaffirmed this approach in Mathis, but added that, because the inquiry

focused on the generic offense, a court "may not ask whether the defendant's

conducthis

particular means of committing the crimefalls within the generic definition."40 Accordingly,
the Supreme Court concluded that if the elements of the state law crime were broader than the
generic version of an enumerated federal offense, then the state law conviction could not serve as a

predicate for career offender status under the Armed Career Criminal Act.
In Hinkle, the Fifth Circuit held that a prior conviction for delivery of a controlled
substance, in violation of Texas Health & Safety Code § 48 1.112(a),41 could not "serve as a

predicate offense under the Career Offender Guideline provision, which is [Sentencing Guideline]

38

Mathis, 136 S. Ct. at 2247-57.
Id. at 2257. See also Taylor v. United States, 495 U.S. 575, 599 (1990).

40

41

Mathis, 136 5. Ct. at 2257.

See Tex. Health & Safety Code Ann. § 48 1.112 (West) ("a person commits an offense if the
person knowingly manufactures, delivers, or possesses with intent to deliver a controlled
substance listed in Penalty Group 1").

§

4B 1.1 ,,42 The Court of Appeals reasoned that "[t]he 'delivery' element of Hinkle's crime of

conviction criminalize[d} a 'greater swath of conduct than the elements of the relevant
[Guidelines]

offense."43

The Fifth Circuit further explained that although the law of the Circuit

previously permitted sentencing courts to use a "modified categorical

approach"and ascertain

from state-court records whether the actual method of delivery constituted a controlled substance
offense under the Sentencing Guidelines"Mathis makes clear that sentencing courts may no
longer do

so."44

Finally, in Tanksley, the Fifth Circuit held that Texas Health & Safety Code "[s]ection
48 1.112(a) is an indivisible statute to which the modified categorical approach does not apply"

because it "criminalizes a greater swath of conduct than the elements of the relevant [Guidelines]
offense."45

Thus, the offense of possession with the intent to deliver a controlled substance

under § 481.112(a) did not qualify as a "controlled substance offense under the Sentencing
Guidelines."46

Johnson may proceed with an attack on the validity of his sentence in a § 2241 petition only

if he can meet both prongs of the stringent test for the § 2255 "savings clause."47 He "must
establish that his claim (1) is based on a retroactively applicable Supreme Court decision which
42

'

Hinkle, 832 F.3d at 576-77.
Id. at 576 (quoting Mathis, 136 S.Ct. at 2251) (some alterations in original).
Id. at 574-75.

'

Tank.sley, 848 F.3d at 352 (quoting Mathis, 136 S.Ct. at 2251).

46

Id.

£

Kinder, 222 F.3d at 212.
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establishes that he might have been convicted of a nonexistent offense and (2) was foreclosed by
circuit law at the time of his trial, direct appeal, or first § 2255 motion."48

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."49

Johnson's claim challenging the enhancement of his sentence under Sentencing

Guidelines

§

4B1.1 and

4B1.2based on his prior state-court convictions for "felony drug

offenses" which have become

finalfails to satisfy the first prong.

He has not alleged or shown

that he "was convicted of a nonexistent offense," and his claim "has no effect on whether the facts

of his case would support his conviction for the substantive offense."5°
Further, Mathis, which the Supreme Court decided on June 23, 2016, did not announce a
new rule made retroactively applicable to cases on collateral review.5' In Mathis, the Supreme
Court held that a modified categorical approach was not appropriate for indivisible

statutes.52

Thus, Mathis "provided helpful guidance for determining whether a predicate statute of conviction

The Supreme Court further explained in Mathis that its decision was dictated by

is

divisible."53

48

Strother v. Black,non, No. 16-60539, 2017 WL 2870993, at *1(5th Cir. July 5, 2017).
Reyes-Requena, 243 F.3d at 903.

50

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

51

See Mathis, 136 S. Ct. at 2257 ("Our precedents make this a straightforward case."); see also
Teague v. Lane, 489 U.S. 288, 301 (1989) ("[A} case announces a new rule if the result was not
dictated by precedent existing at the time the defendant's conviction became final.").
52

Mathis, 136 S. Ct. at 2257.
United States v. Uribe, 838 F.3d 667, 670 (5th Cir. 2016).
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prior precedent and that it was not announcing a new rule.54 Multiple courts have subsequently
concluded that "Mathis did not set forth a new rule of constitutional law that has been made

retroactive to cases on collateral

review."55

Finally, in both Hinkle and Tanksley, the Fifth Circuit applied Mathis on direct appeal, not
on collateral review.56 Moreover, Hinkle and Tanksley were not retroactively applicable Supreme
Court decisions.
The Court finds Johnson's claim does not meet the stringent requirements of the § 2255

"savings clause." The Court will not allow Johnson to proceed under § 2241.

CONCLUSION AND ORDERS
As stated above, 28 U.S.C. § 2241 and 2255 do not provide authority for the Court to
address Johnson's claim. The Court will, therefore, dismiss his § 224 ipetition as frivolous, and,
to the extent his petition may be construed as a § 2255 motion, the Court will dismiss his motion
for lack ofjurisdiction.57 Accordingly, the Court enters the following orders:

IT IS ORDERED that Petitioner Kenneth Ray Johnson'spro se petition under 28 U.S.C. §
Mathis, 136 S. Ct. at 2257; see also Teague v. Lane, 489 U.S. 288, 301 (1989) ("[A] case
announces a new rule if the result was not dictated by precedent existing at the time the
defendant's conviction became final.").

Milan v. United States, No. 3:16:CV-1850-D-BK, 2017 WL 535599, at 2 (N.D. Tex. Jan. 18,
2017); see also In re Lott, 838 F.3d at 523 (denying authorization to file a successive § 2255
motion because defendant failed to make the requisite showing that Mathis created "new rules of
constitutional law that have been made retroactive to cases on collateral review"); United States v.
Taylor, 672 F. App'x 860, 864 (10th Cir. 2016) (concluding "Mathis did not announce a new
rule."); Dawkins v. United States, 829 F.3d 549, 551 (7th Cir. 2016) (concluding Mathis did not
announce a new rule that would allow a second or successive habeas petition).
56

Hinkle, 832 F.3d at 574-77; Tanksley, 848 F.3d at 352.
Ojo, 106 F.3d at 683.
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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 ALSO ORDERED that to the extent Petitioner Kenneth Ray Johnson's §
224lpetition is construed as a successive § 2255 motion, he is denied a CERTIFICATE OF
APPEALABILITY.58

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

SIGNED this

If day of July, 2017.

FRANJ MONTALVO
UNITED STATES DISTRICT JUDGE

58

See 28 U.S.C. foll. § 2255 R. 11(a) ("The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.").

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