Washington v. Willis
MEMORANDUM OPINION AND ORDER. Petition for Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE. All pending Motions if any, are DENIED as MOOT. CERTIFICATE OF APPEALABILITY is DENIED.. Signed by Judge David C Guaderrama. (mc4)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
CEDRIC DEON WASHINGTON,
Reg. No. 43639-279,
SCOTT WILLIS, Warden,
MEMORANDUM OPINION AND ORDER
Cedric Deon Washington seeks relief from his sentence through apro se "Petition for Writ
of Habeas Corpus Under to 28 U.S.C. § 2241" (ECF No. 3). Washington, a federal prisoner at the
La Tuna Federal Correctional Institution in Anthony, Texas,' explains the United States District
Court for the District of South Carolina enhanced his sentence based on "a prior Texas State
conviction for mere possession of less than one gram of cocaine."2 He argues the "conviction is
indivisible and unavailable for enhancement."3 He asks the Court to reverse the conviction and
remand his case back to the South Carolina District Court for resentencing.4 After reviewing the
record and for reasons discussed below, the Court will, on its own motion, dismiss Washington's
petition pursuant to 28 U.S.C. § 2243.
Anthony is located in El Paso County, Texas, which is within the territorial jurisdiction of the
Western District of Texas. 28 U.S.C. § 124(d)(3) (2012).
Pet'r's Pet. 4, ECF.No.
"Id. at 9.
28 U.S.C. § 2243 (2012) ("A court ... entertaining an application for a writ of habeas corpus
BACKGROUND AND PROCEDURAL HISTORY
According to court records in case number 2:09-CR-800-PMD-4 in the United States
District Court for the District of South Carolina, on July 14, 2009, a grand jury returned a
two-count indictment against Washington. Count one charged him with conspiracy to distribute
cocaine. Count two charged him with knowingly using firearms in the furtherance of a drug
With the indictment, the Government filed notice it would seek an enhanced
punishment based upon Washington's prior conviction in Harris County, Texas, for possession of
less than one gram of cocaine, in violation of Texas Health & Safety Code
Washington subsequently pleaded guilty to count one of a second superseding indictment
charging him with conspiracy to distribute five kilograms or more of cocaine, and the South
Carolina District Court dismissed the remaining counts against him. Because Washington had
the "prior conviction for a felony drug offense" in Texas, the Court sentenced him under 21 U.S.C.
841 to the mandatory minimum sentence of two hundred and forty months' imprisonment.7
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.").
Tex. Health & Safety Code Ann. § 481.115 (West) ("(a) Except as authorized by this
chapter, a person commits an offense if the person knowingly or intentionally possesses a
controlled substance listed in Penalty Group 1, unless the person obtained the substance directly
from or under a valid prescription or order of a practitioner acting in the course of professional
practice. (b) An offense under Subsection (a) is a state jail felony if the amount of the controlled
substance possessed is, by aggregate weight, including adulterants or dilutants, less than one
U.S.C. § 841 (2012) ("(a) Unlawful acts ... it shall be unlawful for any person knowingly
or intentionally-- (1) ... distribute ... a controlled substance ... (b) Penalties ... any person who
violates subsection (a) of this section shall be sentenced as follows: (1 )(A) In the case of a
violation of subsection (a) of this section involving-- ... (ii) 5 kilograms or more of a mixture or
substance containing a detectable amount of-- (II) cocaine ... after a prior conviction for a felony
Washington did not appeal.
The South Carolina District Court later denied Washington's motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255 as time barred. Washington appealed, but the Fourth
Circuit Court of Appeals denied his motion for a certificate of appealability and dismissed his
The South Carolina District Court then determined Washington was not eligible for a
sentence reduction based upon Amendment 782 to the Sentencing
statutory mandatory minimum under 21 U.S.C.
Sentencing Guidelinesdictated his
841not the Drug Quantity Table in the
2241 petition, Washington claims that, in light of Mathis
Ct. 2243 (2016), United States
United States, 136 S.
Hinkle, 832 F.3d 569 (5th Cir. 2016), and United States
Tanksley, 848 F.3d 347 (5th Cir. 2017), the Court should remand his case back to South Carolina
for resentencing because his prior conviction for possession of less than one gram of cocaine under
Texas Health & Safety Code
481.115(b) "could not serve as a predicate for enhancement
drug offense has become final, such person shall be sentenced to a term of imprisonment which
may not be less than 20 years and not more than life imprisonment ...").
Washington, No. 13-7674 (4th Cir. Mar. 5, 2014).
See United States v. Zavala-Garcia, 671 F. App'x 242 (5th Cir. 2016) (explaining Amendment
782 lowered the penalties for most drug offenses by reducing offense levels in the Sentencing
Guideline § 2D 1.1 Drug Quantity Table by two levels).
See U.S. SENTENCING GUIDELINES MANUAL §5G1.1(b) (U.S. SENTENCING
COMM'N 2010) ("Where a statutorily required minimum sentence is greater than the maximum of the
applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.").
"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
To prevail, a § 2241 petitioner must show that he is "in custody in violation of the
Constitution or laws or treaties of the United
A § 2241 petitioner may make this attack
only in the district court with jurisdiction over his custodian.'4
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."15 Relief under § 2255 is
warranted for errors that occurred at trial or sentencing.'6 A § 2255 petitioner may only bring his
motion in the district of conviction and sentence.17
Mem. in Supp. 4, 8, ECF No. 1-2.
28 U.S.C. § 2241(c) (2012).
218 F.3d 448, 451 (5th Cir. 2000) (citations omitted).
United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992).
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 §
Pack, 218 F.3d at 452.
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
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:
[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 §
A petitioner must prove both prongs to successfully invoke the "savings
is not a mere substitute for § 2255, and a petitioner bears the burden
of showing that the § 2255
remedy is ifladequate.2'
With these principles in mind, the Court turns to Washington's claims.
In his petition, Washington challenges the enhancement used to determine his sentence
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).
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
214 (5th Cir. 2000)).
Purdy, 222 F.3d 209,
after he pleaded guilty to conspiracy to distribute five kilograms or more of cocaine. Washington
claims that in light of Mathis, Hinkle, and Tanksley, the Court erred when it increased his
punishment based on his prior statecourt felony conviction for a violation of Texas Health &
He asks the Court to remand his case back to the South Carolina
District Court for resentencing without the
Notably, Washington does not
suggest he did not commit the federal offense. He also does not suggest he did not commit the
state offense relied on by the South Carolina District Court to 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.
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
The Court reaffirmed this approach in Mathis, but added that, because the inquiry
focused on the generic offense, not the actual offense, a court "may not ask whether the
conducthis particular means of committing the crimefalls within the generic
Mem. in Supp. 4, 8.
Mathis, 136 S. Ct. at 2247-57.
Id. at 2257. See also Taylor
United States, 495 U.s. 575, 599 (1990).
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
the Fifth Circuit held that a prior conviction for delivery of a controlled
substance, in violation of Texas Health & Safety Code
could not "serve as a
predicate offense under the Career Offender Guideline provision, which is [Sentencing Guideline]
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
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
the Fifth Circuit held that Texas Health & Safety Code "[s]ection
Mathis, 136 S. Ct. at 2257.
See Tex. Health & Safety Code Ann. § 481.112 (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").
832 F.3d at 576-77.
Id. at 576 (quoting Mathis, 136 S. Ct. at 2251) (some alterations in original).
Id. at 574-75.
481.112(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."3' Thus, the offense of possession with the intent to deliver a controlled substance
481.112(a) did not qualify as a "controlled substance offense under the Sentencing
Washington 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
establish that his claim (1) is based on a retroactively applicable Supreme Court decision which
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
Washington was sentenced on May 16, 2011.
on June 23,
Mathiswhich the Supreme Court decided
2016did not announce a new rule made retroactively applicable to cases on
collateral review.35 In Mathis, the Supreme Court held that a modified categorical approach was
not appropriate for indivisible
Thus, Mathis "provided helpful guidance for
' Tanksley, 848 F.3d at 352 (quoting Mathis, 136 S. Ct. at 2251).
Kinder, 222 F.3d at 212.
Strother v. Blackinon, No. 16-60539, 2017 WL 2870993, at *1(5th Cir. July 5, 2017).
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.").
Mathis, 136 5. Ct. at 2257.
determining whether a predicate statute of conviction is divisible."37 In Mat his, the Supreme
Court explained that its decision was dictated by prior precedent and that it was not announcing a
new rule.38 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
In both Hinkle and Tanksley, the Fifth Circuit applied Mathis on direct appeal, not on
Moreover, Hinkle and Tanksley addressed Texas Health & Safety Code
481.112(a)not Texas Health & Safety Code § 481.115(b)and were not retroactively
applicable Supreme Court decisions.
Furthermore, the first prong of the § 2255 "savings clause" 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
Washington 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
' United States
Uribe, 838 F.3d 667, 670 (5th Cir. 2016).
Mathis, 136 5. 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 "Math/s 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).
Hinkle, 832 F.3d at 574-77; Tanksley, 848 F.3d at 352.
Reyes-Requena, 243 F.3d at 903.
would support his conviction for the substantive
Washington's claim challenging his sentence enhancement fails to satisfy the first prong of
the § 2255 "savings clause" test. He may not proceed with an attack on the validity of his
sentence through a § 2241 petition.
Finally, as the South Carolina District Court explained when it denied his
enhanced his sentence under 21 U.S.C.
2255 motion, it
821 based on his prior conviction for a felony drug
Petitioner argues that § 851 cannot be used to enhance his
sentence because his 1999 conviction does not qualify as a "felony
drug offense" under 21 U.S.C. § 841(b)(1)(A). The Supreme Court
has held that the exclusive definition of "felony drug offense" as it
pertains to § 841(b)(1)(A) is "an offense that is punishable by
imprisonment for more than one year under any law of the United
States or of a State or foreign country that prohibits or restricts
conduct relating to narcotic drugs, marihuana, anabolic steroids, or
depressant or stimulant substances." 21 U.S.C. § 802(44); see
Burgess v. United States, 553 U.S. 124, 129-31 (2008). To
determine if Petitioner's 1999 conviction is a felony drug offense,
"the conviction itself" must serve as the "starting place."
CarachuriRosendo v. Holder, 130 S. Ct. 2577, 2582 (2010). If
Petitioner's 1999 conviction was a drug related crime for which
Petitioner was subject to a potential sentence of greater than one
year imprisonment, then his 1999 conviction is a felony drug
offense. See United States v. Thompson, 480 F. App'x 201, 204
(4th Cir. 2012) ("Pursuant to [Unites States v.] Simmons, [649 F.3d
237 (4th Cir. 201 1)(en banc)], in evaluating whether a defendant's
prior state conviction qualifies as a felony ... , the actual sentence
imposed is irrelevant; rather, the relevant inquiry is whether the
actual defendant was subject to a potential sentence of great than
one year of imprisonment.") (emphasis added).
Petitioner's 1999 conviction was for possession of cocaine of
less than one gram and is considered a state jail felony pursuant to
Pad.illa, 416 F.3d at 427 (emphasis added).
Texas Health & Safety Code § 481.115(b) (1994). In Texas, a state
jail felony "shall be punished by confinement in a state jail for any
term of not more than two years or less than 180 days." Tex. Penal
Code Ann. § 12.35(a) (1994). Therefore, Petitioner's 1999
conviction is a felony drug offense because it is punishable by
imprisonment for more than one year under Texas law. See 21
U.S.C. § 802(44). Because Petitioner's 1999 conviction is a felony
drug offense, he is subject to a § 851 enhancement and a mandatory
minimum sentence of two-hundred and forty (240) months. Id. §
The Court accordingly finds that Washington's claim does not meet the stringent
requirements of the § 2255 "savings clause." The Court will not allow Washington to proceed
under § 2241. To the extent that Washington's petition may be construed as a successive § 2255
motion, the Court further finds it lacks the jurisdiction to address his
CONCLUSION AND ORDERS
As stated above, 28 U.S.C. § 2241 and 2255 do not provide authority for the Court to
address Washington'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
The Court, therefore, enters the following orders:
IT IS ORDERED that Cedric Deon Washington's pro se "Petition for Writ of Habeas
Corpus Under to 28 U.S.C.
2241" (ECF No. 3) is DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that all pending motions in this cause, if any, are DENIED
Order, Aug. 21, 2013, ECF No. 555, 2:09-CR-800-PMD-4 (D. S.C.).
" Pack, 218 F.3d at 452.
Ojo, 106 F.3d at 683.
IT IS ALSO ORDERED that to the extent Cedric Deon Washington's § 224 ipetition is
construed as a successive § 2255 motion, he is denied a CERTIFICATE OF
IT IS FINALLY ORDERED that the Clerk shall CLOSE this case.
day of Septemi
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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