Opinion
CV-20-00167-TUC-RM (JR)
09-28-2022
Ronald G Kipp, Jr., Petitioner, v. Jared Rardin, Respondent.
REPORT AND RECOMMENDATION
HONORABLE JACQUELINE M. RATEAU, UNITED STATES MAGISTRATE JUDGE.
Petitioner Ronald G. Kipp, Jr. (“Petitioner”), currently confined in the United States Penitentiary-Tucson in Tucson, Arizona, filed Petition under 28 U.S.C. § 2241 for a Writ of Habeas Corpus. (Doc. 1.) Petitioner was appointed counsel and filed an Amended Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (“Amended Petition”). (Doc. 6, 9.) Pursuant to the Rules of Practice of the Court, this matter was referred to Magistrate Judge Jacqueline Rateau for Report and Recommendation. (Doc. 10.) Before the Court are the Amended Petition, Respondent's Response to Petition For Writ of Habeas Corpus Under 28 U.S.C. § 2241, and Petitioner's Reply in Support of Amended Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241. (Doc. 18, 19.)
As more fully set forth below, the Magistrate Judge recommends that the District Court grant in part and deny in part the Amended Petition.
BACKGROUND
Petitioner was the sergeant-at-arms for the Texas Mexican Mafia, a prison gang that operates a drug distribution network in the Austin, Texas area, and he was responsible for overseeing the gang's arsenal, issuing weapons to fellow gang members, and purchasing, storing, and checking out firearms for the organization. Kipp v. United States, No. A-01-CR-249-H, 2005 WL 8173352, at *2 (W.D. Tex. Mar. 18, 2005). Law enforcement executed a search warrant on Petitioner's rented storage unit on October 30, 2001, and recovered 305.98 grams of methamphetamine, and a large quantity of ammunition and several firearms, including revolvers, a pistol, rifle, and shotgun. Id. at *1. Around the same time, Petitioner was arrested by the Oklahoma Police Department as a parole violator based on an outstanding warrant issued by the Texas Department of Criminal Justice. Id.
Petitioner's Conviction
Petitioner was indicted in the Western District of Texas, Austin Division, for possession with intent to distribute methamphetamine and two counts of being a felon in possession of a firearm. Id. Petitioner was convicted by a jury of all but the second firearm offense. Id. Prior to sentencing, the trial court found that Petitioner had a total of four prior felony convictions: (1) a delivery of heroin offense, in violation of Tex. Health & Saf. Code § 481.112(a); (2) robbery by threat, in violation of Tex. Penal Code § 29.02; and (3) two counts of unauthorized use of a motor vehicle, in violation of Tex. Penal Code § 31.07. (Doc. 9 at 2-3, ¶ 10.) Based on his prior convictions, Petitioner was classified in his presentence report as a career offender pursuant to U.S.S.G. § 4B1.1. (Doc. 9 at 3, ¶ 11.) With a career offender classification Petitioner's total offense level was 37 and his criminal history category was VI resulting in a then-mandatory guideline range of not less than 360 months to life imprisonment. Id.
Petitioner objected to the career offender classification contending that his prior state felony convictions all occurred on December 16, 1992, were “consolidated,” and therefore, the three convictions should not be counted separately. (Doc. 18-2 at 2.) The district court rejected this argument and sentenced Petitioner to 360 months' imprisonment, consisting of terms of 360 months for count one and 120 months for count two, to run concurrently, followed by an 8-year term of supervised release. Kipp, 2005 WL 8173352, at *1.
Petitioner appealed to the United States Court of Appeals for the Fifth Circuit, arguing that the district court abused its discretion in admitting into evidence a portion of his videotaped interview with authorities, erred by refusing to give the jury his proposed instruction on possession, and that there was insufficient evidence to support his conviction. United States v. Kipp, 61 Fed. App'x 120 (5th Cir. 2003) (per curiam). Petitioner's claims were denied and his conviction and sentences were affirmed on January 29, 2003. Id. The U.S. Supreme Court denied his petition for certiorari on October 6, 2003. Kipp v. United States, 540 U.S. 846 (2003).
Post-Conviction Proceedings
On October 4, 2004, Petitioner filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, on the ground that he had received ineffective assistance of both his trial and appellate counsel. (Doc. 9 at 3, ¶ 14.) See also Kipp, 2005 WL 8173352, at *1. The district court denied the motion on March 17, 2005, finding that Petitioner could not establish that his counsel were ineffective or that he had suffered any prejudice. (Doc. 9 at 13, ¶ 14.)
On September 29, 2005, Petitioner filed a motion seeking to supplement and amend his § 2255 motion. (Doc. 18-2 at 14.) The district court found the motion to be an attempt to file a second or successive motion to vacate sentence without first seeking permission to do so, and denied the motion on October 3, 2005. Id. Petitioner filed a motion for reconsideration, which was also denied on October 18, 2005. (Doc. 18-3 at 2.) The district court subsequently denied Petitioner a certificate of appealability and Petitioner appealed to the Fifth Circuit Court of Appeals, arguing that the court should apply United States v. Booker, 543 U.S. 200 (2005), retroactively to his case. (Doc. 9 at 3, ¶ 15; Doc. 18-3 at 45, 7-8.) The court of appeals found that Petitioner failed to show the denial of a Constitutional right or that the district court had committed a procedural error, and denied him a certificate of appealability. (Doc. 18-3 at 7-8.)
On July 24, 2008, Petitioner submitted a letter to the district court requesting leniency. (Doc. 9 at 3, ¶ 16; Doc. 18-3 at 10.) The district court construed the letter as a motion to modify or reduce his sentence, and denied the motion for failing to present a legitimate basis for modification. (Doc. 9 at 3, ¶ 16; Doc. 18-3 at 11-12.) Petitioner moved for the appointment of counsel on December 17, 2008, to assist him with filing a motion asking the court to apply U.S.S.G. Amendment 709 to his case. (Doc. 9 at 4, ¶ 17; Doc. 183 at 16-18.) The court denied the motion as premature. (Doc. 9 at 4, ¶ 17; Doc. 18-4 at 2.)
In October 2014, Petitioner filed another § 2255 petition arguing that his sentence was invalid under Descamps v. United States, 570 U.S. 254 (2004), because his two prior convictions for delivery of heroin and robbery by threat were not predicate offenses for his career offender status. (Doc. 9 at 4, ¶ 18.) His petition was opposed on the grounds that he had failed to receive certification to file a second or successive § 2255 petition, his actual innocence claim was time-barred because it was filed over a year after the Supreme Court's decision in Descamps, and his sentence was within the statutory maximum. (Doc. 18-4 at 13-20.) The district court dismissed this petition without prejudice for failing to obtain certification, and rejected Petitioner's motion for reconsideration. (Doc. 9 at 4, ¶ 18; Doc. 18-4 at 22-23; Doc. 18-5 at 2-3.)
On January 26, 2015, Petitioner filed a motion seeking to have the court to apply U.S.S.G. Amendment 782 retroactively to reduce his base offense level (and thus his sentence of imprisonment). (Doc. 9 at 4, ¶ 18; Doc. 18-5 at 11-12.) The district court denied the motion on April 22, 2015, finding that the retroactive guideline change pursuant to Amendment 782 did not apply because Petitioner was sentenced as a career offender. (Doc. 18-5 at 11-12.)
In July 2018, Petitioner requested a writ of audita querela pursuant to the All Writs Act, 18 U.S.C. § 1651(a), arguing that pursuant to United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), and United States v. Burris, 896 F.3d 320 (5th Cir. 2018), overruled, 920 F.3d 942 (5th Cir. 2019), his sentence was illegal because his career offender designation was no longer valid. (Doc. 9 at 5, ¶ 22.) See also United States v. Kipp, 770 Fed.Appx. 244, 245 (5th Cir. 2019) (per curiam). Both the district court and the Fifth Circuit denied his motion. Id.
Amended Petition
Petitioner filed the instant Amended Petition on July 13, 2020, raising two grounds for relief. (Doc. 9.) First, Petitioner argues that he is entitled to be resentenced without a career offender designation because his Texas convictions for vehicle and drug offenses no longer qualify as predicate convictions for sentencing purposes. Id. at 7-11, ¶¶ 32-44. If Petitioner's conviction for the delivery of heroin is not a qualifying conviction for his career offender designation under the sentencing guidelines, then Petitioner has only one qualifying conviction-robbery by threat-and thus his sentence imposed with the career offender designation is illegal. Id. at 10, ¶ 43. Without the career offender designation, Petitioner asserts that his offense level is 28 and he has a criminal history category V with a resulting sentencing guidelines range of 130-162 months. Id. at 11, ¶ 44. Thus, Petitioner contends that his current sentence of 360 months is illegal and must be vacated. Id. He seeks a resentencing to not more than 162 months' imprisonment. Id.
Respondent concedes that the unauthorized use of a vehicle is neither a crime of violence nor a controlled substance offense and, as a result, cannot be counted as a predicate offense for Petitioner's career offender status. (Doc. 18 at 7, n.2.) Accordingly, this Court limits its recommendation to the issue of whether Petitioner's conviction for the delivery of heroin under Texas state law is a controlled substance offense for purposes of Petitioner's career offender classification.
Second, Petitioner argues that his drug offense in violation of Texas law is not a “felony drug offense” and his supervised release sentencing enhancement he received pursuant to 21 U.S.C. § 841(b)(1)(B) is unsupported. Id. at 11-12, ¶¶ 45-47.
JURISDICTION TO ENTERTAIN THE AMENDED PETITION
Section 2255(e), 28 U.S.C., provides, in relevant part:
An application for a writ of habeas corpus [o]n 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.A. § 2255(e). “As a general rule, ‘a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner may test the legality of his detention[.]'” Allen v. Ives, 950 F.3d 1184, 1188 (9th Cir. 2020) (quoting Stephens v. Herrera, 464 F.3d 897, 897 (9th Cir. 2006) (internal citations omitted)). “An exception to the general rule, termed the § 2255(e) ‘escape hatch,' permits a federal prisoner to ‘file a habeas corpus petition pursuant to § 2241 to contest the legality of a sentence where his remedy under § 2255 is ‘inadequate or ineffective to test the legality of his detention.'” Allen, 950 F.3d at 1188 (quoting Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000) (per curiam) (quoting § 2255(e)). The Ninth Circuit has held that “a remedy under § 2255 is inadequate where ‘the prisoner (1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim.'” Allen, 950 F.3d at 1188 (quoting Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012)).
This provision of § 2255(e) is also referred to as the “savings clause.” See Terry v. Shartle, No. CV 15-00107-TUC-CKJ, 2017 WL 5151130, at *5 (D. Ariz. 2017) (recognizing that the “remedy [in § 2255(e)] is referred to as either the ‘savings clause' or ‘escape hatch' provision.) (citation omitted).
Here, Petitioner contends that the district court has jurisdiction to entertain his postconviction challenge to his sentence because the law that classifies his predicate convictions changed after his direct appeal and his first habeas proceeding under 28 U.S.C. § 2255 had concluded. (Doc. 9 at 7, ¶ 32; Doc. 19 at 1-2.) He insists that as a result of this change in the law he is “actually innocent” of the career offender designation. (Doc. 9 at 13, ¶ 50.) Petitioner also contends that he has not had an “unobstructed procedural shot” at litigating his claim that his sentence is illegally imposed under the career offender provisions of the sentencing guidelines. Id. at ¶ 51.
Respondent does not seriously dispute Petitioner's assertion that the district court has jurisdiction over the Amended Petition. (Doc. 18 at 2, n.1.) Respondent admits that in Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011), the United States Court of Appeals for the Ninth Circuit held that a prisoner may seek habeas relief under 28 U.S.C. § 2241 if he “makes a claim of actual innocence” and “has not had an unobstructed procedural shot at presenting that claim.” (Doc. 18 at 2, n.1.) As explained below, this Court agrees with Petitioner that the district court has jurisdiction to consider the Amended Petition.
Actual Innocence: Petitioner insists that his claim that he is serving an illegal sentence as career offender under the sentencing guidelines is cognizable under the actual innocence prong of § 2255(e)'s escape hatch provision. Respondent does not seriously dispute Petitioner's contention. (Doc. 18 at 2, n.1.) This Court agrees with Petitioner. See Allen, 950 F.3d at 1188-90 (holding that “[i]f Allen is correct under Mathis [v. United States, 136 S.Ct. 2243 (2016)] and Descamps [v. United States, 57 U.S. 254 (2013),] that his Connecticut marijuana conviction is not a conviction for a controlled substance offense, [then] he is ‘actually innocent of a noncapital sentence for the purpose of qualifying for [§ 2255(e)'s] escape hatch.'”) (quotation omitted).
Unobstructed Procedural Shot: Petitioner asserts that he has not had an unobstructed procedural shot a presenting his actual innocence claim. (Doc. 9 at 13-14, ¶¶ 51(a)-(d).) In determining whether a habeas petitioner has not had an unobstructed procedural shot a presenting his actual innocence claim, the court considers “(1) whether the legal basis for petitioner's claim did not arise until after he had exhausted his direct appeal and first § 2255 motion; and (2) whether the law changed in any way relevant to petitioner's claim after that first § 2255 motion.” Alaimalo, 645 F.3d at 1047 (quoting Harrison v. Ollison, 519 F.3d 952, 960 (9th Cir. 2008). (internal quotation marks omitted).
As laid out by Petitioner and not contested by Respondent, in light of Descamps v. United States, 57 U.S. 254 (2013), and Mathis v. United States, 136 S.Ct. 2243 (2016), Petitioner is now able to argue that his conviction for the delivery of heroin is not a ‘controlled substance offense' because it punishes mere offers to sell controlled substances. Petitioner's first § 2255 proceeding concluded in July 2007 years before the decisions in Descamps and Mathis became law and Petitioner could not rely upon these decisions in his first habeas proceeding.
Also, Petitioner cannot file a second or successive § 2255 motion relying upon Descamps and Mathis because these decisions do not rely upon a new rule of Constitutional law. For instance, in Allen, the Ninth Circuit recognized that both it and the Second Circuit have held that the decisions in Mathis and Descamps do not meet the standard for a second or successive § 2255 motion because they interpreted federal statutes, not the Constitution. 950 F.3d at 1191. Allen explained:
Because the petitioner's claim under Mathis and Descamps did not become available until after the [Second Circuit] denied his § 2255 motion, and because that claim does not satisfy the criteria of § 2255 for a second or successive § 2255 motion, [Allen] has not had (and, indeed, will never get an opportunity to present his ... claim in a § 2255 motion that his prior convictions were not for predicate crimes under the standard in Mathis and Descamps ... Thus, Allen has not had an unobstructed procedural shot at presenting his actual innocence claim.950 F.3d at 1191 (internal quotations and citation omitted). In light of Allen, this Court agrees with Petitioner that he has not had an unobstructed procedural shot a presenting his actual innocence claim with respect to his career offender designation as alleged in the Amended Petition.
In sum, this Court finds that the Amended Petition may proceed under § 2255(e) 's saving clause and recommends that the district court find that it has jurisdiction to consider the Amended Petition.
CHOICE OF LAW
The parties dispute whether the district court applies the law of the district of confinement or the district of conviction to the merits of the Amended Petition. (Doc. 18 at 9; Doc. 19 at 2.) Respondent argues that the district court is bound to apply Ninth Circuit law in determining whether an offense is a predicate offense for purposes of U.S.S.G. § 4B1.1. (Doc. 18 at 10.) Petitioner contends that Respondent relies upon case law that is procedurally distinguishable and that it has otherwise “identified no Ninth Circuit authority for the proposition that when a district court sitting in habeas is properly entertaining a sentencing challenge under the escape hatch of § 2255(e), the district court must apply the substantive sentencing law of the Ninth Circuit rather than the [law of the] circuit” of conviction. (Doc. 19 at 3.) The upshot of the parties' dispute is that application of Fifth Circuit law affords Petitioner relief on the merits of his claim that he is actually innocent of the career offender designation whereas application of Ninth Circuit law appears to deny Petitioner relief. As explained below, this Court agrees with Petitioner that the district court applies the substantive law of the district of conviction in considering the merits of a § 2241 petition brought by way of the savings clause of § 2255(e).
A brief history of the saving clause of § 2255(e) proves helpful in resolving the choice of law issue. In In re Davenport, 147 F.3d 605 (7th Cir. 1998), the United States Court of Appeals for the Seventh Circuit recognized:
The purpose behind the enactment of section 2255 was to change the venue of postconviction proceedings brought by federal prisoners from the district of incarceration to the district in which the prisoner has been sentenced. United States v. Hayman, 342 U.S. 205, 212-19, 72 S.Ct. 263, 96 L.Ed. 232 (1952). Because the Constitution forbids the suspension of the writ of habeas corpus except in a situation of rebellion or invasion, U.S. Const. art. I, § 9, cl. 2, outright abolition of habeas corpus for federal prisoners might conceivably have been held to violate the Constitution. Whether for this or other reasons (the legislative history is uninformative), Congress created a safety hatch: if section 2255 proved in a particular case not to be an adequate substitute for habeas corpus, the prisoner could seek habeas corpus. This would block any argument that Congress was suspending the writ.
...
A federal prisoner should be permitted to seek habeas corpus only if he had no reasonable opportunity to obtain earlier judicial correction of a fundamental defect in his conviction or sentence because the law changed after his first 2255 motion.In re Davenport, 147 F.3d 605, 609, 611 (7th Cir. 1998). In discussing the “change in law” requirement of § 2255, Davenport explained, inter alia:
[The] “change in law” is not to be equated to a difference between the law in the circuit in which the prisoner was sentenced and the law in the circuit in which he is incarcerated, Cain v. Markley, 347 F.2d 408, 410 (7th Cir. 1965), the first being the venue for his 2255 motions and the second his venue for his habeas corpus application. When there is a circuit split, there is no presumption that the law in the circuit that favors the prisoner is correct, and hence there is no basis for supposing him unjustly convicted merely because he happens to have been convicted in the other circuit.In re Davenport, 147 F.3d at 611-12. District courts have relied upon Davenport to hold that the law of the circuit of conviction applies to § 2241 petitions proceeding under § 2255(e)'s escape hatch provision. For instance, Hernandez v. Gilkey, 242 F.Supp.2d 549, 554 (S. D. Ill. 2001), endorsed the Davenport “rule” reasoning:
Zuniga overlooks the fact that the Davenport rule is far from arbitrary. It actually has a very rational basis and treats similarly situated individuals the same. The rule ensures that the law that prevails in the judicial circuit of any federal prisoner's conviction, or a substantially similar law, is the law that will be applied to the prisoner's § 2241 petition seeking vacation of a conviction. Application of the law of the place of conviction is a consistent, reasonable rule, as is evidenced by the requirement that § 2255 motions be filed in the district of conviction. The rule Zuniga believes appropriate- applying the substantive law of the place of confinement-is actually far more arbitrary. Such a rule would base the choice of law decision on the fortuitous placement of a prisoner by the Bureau of Prisons, not the more rational factor of the place of conviction. It would result in similarly situated prisoners-perhaps even co-defendants convicted of the exact same crimes-being treated differently because of their location of confinement. It would also raise the possibility of prisoner “forum shopping” by behavior modification.Hernandez, 242 F.Supp.2d at 554.
In Salazar v. Sherrod, No. 09-cv-619-DRH-DGW, 2012 WL 3779075, at *4 (S.D. Ill. Aug. 31, 2012), the district court held that it would apply the law of the circuit of conviction in reviewing a sentence of conviction under § 2241. The district court relied upon the reasoning set forth in Hernandez, supra, stating:
That section 2255 motions must be brought in the district of conviction suggests that Congress intended collateral review of a conviction or sentence to be made under the same legal standards used by the trial court in the first instance. It is reasonable to conclude, therefore, that a court reviewing the legality of a conviction or sentence should perform its analysis based on the law under which the defendant was convicted.2012 WL 3779075, at *5. The district court in Salazar recognized that other courts that adopted similar reasoning reached the same conclusion-that a district court should apply the law of the circuit of conviction in reviewing a sentence or conviction under § 2241 . See Id. (citing Eames v. Jones, 793 F.Supp.2d 747, 750 (W.D. N.C. 2011) (applying substantive law of circuit where petitioner had been convicted and sentenced in determining whether petitioner was entitled to bring § 2241 petition); Chaney v. O'Brien, Case No. 7:07-cv-121, 2007 WL 1189641 (W.D. Va. April 23, 2007), affdper curiam, 241 Fed.Appx. 977 (4th Cir. 2007) (adopting the holding and reasoning in Hernandez and finding that the substantive law relevant to a § 2241 petition is that of the circuit of conviction). See also Van Hoorelbeke v. United States, No. 0:08-3869-CMC-PJG, 2010 WL 146289, at *4 (D. S.C. Jan. 8, 2010) (holding that “[s]ince Van Hoorelbeke was convicted in the Ninth Circuit, however, any alleged change in the substantive law of the [circuit of confinement], the Fourth Circuit[,] cannot avail him.”); Roberts v. Watson, No. 16-cv-541-bbc; 2017 WL 6375812, at *2 (W.D. Wisc. Dec. 12, 2017) (applying the reasoning in Salazar and holding that the law of the circuit of conviction applied to § 2241 petition); Hogan v. Butler, Civil No. 6:15-0049GFVT, 2015 WL 4635612, at *6-7 (E.D. Ky Aug 3, 2015) (holding that “the [c]ourt is persuaded that in respect to the law applicable to § 2241 petitions, the [c]ourt must apply the law of the place where the petitioner was convicted, rather than the law of the place where the petitioner is incarcerated.”).
This Court is not persuaded by the case law relied upon Respondent. For instance, in Rudisill v. Martin, No. 5:08-cv-272 (DCB) (MTP), 2013 WL 1871701, at *4 (S.D.Miss. 2013), the district court acknowledged the holding and rationale in Hernandez but held “[notwithstanding the logic of the argument favoring application of the law of the circuit of conviction the [c]ourt finds that it must apply Fifth Circuit law (the law of the circuit of confinement).” Rudisill relied upon Searcy v. Young, 489 Fed.Appx. 808, 810 (5th Cir. 2012), and Owens v. Sanders, No. CV 12-5626-SJO (MLG), 2012 WL 6213790 (C.D. Cal. Nov. 7, 2012), both of which Respondent relies upon as well. Id. (Doc. 18 at 10.)
In Owens v. Sanders, the magistrate judge issued a report and recommendation finding that the petitioner had not met the requirements of § 2255(e) which would have allowed him to seek relief under § 2241, finding that the petitioner had not shown “actual innocence,” and that the petitioner had a prior “unobstructed procedural shot” at presenting his Santos claim when he pursued relief in the Sixth Circuit, the district of conviction. No. CV 12-5626-SJO, 2012 WL 6213790, at *5 (C.D. Cal. 2012). The district court accepted and adopted the report and recommendation, and entered judgment dismissing the petition for lack of jurisdiction. Owens v. Sanders, No. CV 12-5626-SJO, 2012 WL 6489341 (C.D. Cal. Nov. 7, 2012).
In Searcy v. Young, the Fifth Circuit denied the petitioner's application to proceed informa pauperis holding that the petitioner failed to meet the requirements of § 2255(e)'s escape hatch provision finding that the petitioner did “not rely on any retroactively applicable Supreme Court decision establishing that he may have been convicted of a nonoffense.” 489 Fed. App'x at 809-10.
Rudisill, Owens and Searcy are not well reasoned and this Court finds that the better reasoned cases, and thus the more persuasive cases, to be those applying the reasoning set forth by Davenport and Hernandez. As recognized by the district court in Hernandez, “[application of the law of the place of conviction is a consistent, reasonable rule, as is evidenced by the requirement that § 2255 motions be filed in the district of conviction.” Hernandez, 242 F.Supp.2d at 554.
Additionally, this Court finds that Respondent mistakenly relies upon United States v. Calvillo-Palavios, 860 F.3d 1284, 1290 (9th Cir. 2017). As pointed out by Petitioner, in Calvillo-Palavios, the court of appeals was reviewing a sentence imposed by a district court in the Ninth Circuit. It was in this context that the appeals court determined that it was bound by its prior law holding, “[w]hile Calvillo-Palavios's argument might be persuasive in other circuits, we have already rejected it.” 860 F.3d at 1290.
Furthermore, Respondent recognizes that some district courts apply procedural law from the petitioner's circuit of confinement and substantive law from the petitioner's circuit of conviction in § 2241 petitions proceeding under § 2255(e)'s escape hatch provision. (Doc. 18 at 10, n.4.) For example, in Burgess v. Williams, the district court held that, “[t]he [c]ourt, therefore, applies the Sixth Circuit's test in Hill to determine whether Burgess may invoke the savings clause of § 2255 to bring a § 2241 challenge to his sentence enhancement imposed in the [c]riminal [c]ase.” No. 4:18CV2643, 2019 WL 2641902, at *2 (N.D. Ohio June 27, 2019). Burgess further held that if the petitioner met the requirements of the Sixth Circuit's savings clause test, “then the [c]ourt applies the substantive law of the Fourth Circuit, the circuit in which he was convicted, to the merits of the § 2241 petition.” Id.
In light of the foregoing, this Court determines that the district court should apply the law of the circuit of Petitioner's conviction-the Fifth Circuit-to the merits of his Amended Petition.
MERITS
Career Offender Classification Based on Petitioner's Conviction for Delivery of Heroin Under Texas State Law
Section 4B1.1(a), U.S.S.G., provides that “[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.” U.S.S.G. § 4B1.1(a).The parties agree that the dispositive issue in the Amended Petition is whether an offer to sell heroin is a “controlled substance offense” under U.S.S.G. § 4B1.2. (Doc. 18; Doc. 19 at 2.)
Relying upon United States v. Shumate, 329 F.3d 1026 (9th Cir. 2003), amended on denial of reh 'g, 341 F.3d 851 (9th Cir. 2003), Respondent argues that an offer to sell heroin is “controlled substance offense” for purposes of a career offender classification. (Doc. 18 at 7-8.) Relying upon United States v. Hinkle, 832 F.3d 569, 579-77 (5th Cir. 2016), Petitioner contends that it is not. (Doc. 19 at 2.) For the reasons explained above, this Court finds that the substantive law of the circuit of conviction applies to the merits of the Amended Petition. Thus, as explained below, under Hinkle, this Court recommends the district court grant the Amended Petition with respect to Petitioner's claim that he is actually innocent of being a career offender because he lacks the requisite predicate convictions to support a career offender designation under the sentencing guidelines.
In Hinkle, the United States Court of Appeals for the Fifth Circuit held that Texas Health & Safety Code § 481.112(a) did not qualify as a “controlled substance offense” under the sentencing guidelines' career offender provision. 832 F.3d at 576. The statute at issue in Hinkle provided that a person committed an offense if he or she “knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance.” Id. at 572 (citing Tex. Health & Safety Code § 481.112(a) (West 2009)). Unlike the definition of “controlled substance offense,” under the sentencing guidelines, Texas law defined the term “deliver” as encompassing the act of “offering to sell.” Id.
Applying the categorical approach outlined in Mathis, Hinkle held that a conviction under the Texas statute at issue did not qualify as a “controlled substance offense” reasoning:
The “delivery” element of Hinkle's crime of conviction criminalizes a “greater swath of conduct than the elements of the relevant [Guidelines] offense.” This “mismatch of elements” means that Hinkle's conviction for the knowing delivery of heroin is not a controlled substance offense under the Guidelines. That prior conviction cannot serve as a predicate offense under the Career Offender Guideline provision, which is § 4B1.1.832 F.3d at 576-77 (footnotes omitted).
Petitioner here was convicted of violating the same Texas Health & Safety Code at issue in Hinkle-Tex. Health & Saf. Code § 481.112(a). (Doc. 9 at 2, ¶ 10.) Respondent appears to admit that Hinkle is on all fours with the instant case conceding that “Hinkle does address the Texas state offense of delivery of heroin, and it determined that it is not a controlled substance offense for the purpose of the career offender provision.” (Doc. 18 at 9.) Respondent's sole argument against the application of Hinkle is that the district court should apply Ninth Circuit, not Fifth Circuit, precedent to the merits of the Amended Petition. Id.
As explained above, as the Amended Petition is authorized under § 2255(e)'s escape hatch provision, this Court finds that the law of the circuit of conviction applies to the merits of the Amended Petition. Because the delivery of heroin under Texas Health & Saf. Code § 481.112(a) no longer qualifies as a predicate offense for the career offender designation in light of Hinkle, and because Respondent concedes that Petitioner's convictions for the unauthorized use of motor vehicle do not qualify as valid predicates for the career-offender designation, Petitioner does not have two prior qualifying predicate offenses to support a career offender designation. Thus, this Court finds that Petitioner is “actually innocent” of the career offender designation under the sentencing guidelines and he is entitled to be resentenced without the career offender designation.
Accordingly, this Court recommends that Petitioner's actual innocence claim alleged in the Amended Petition be granted and that Petitioner be resentenced without the career offender designation.
Supervised Release Enhancement
In his second claim alleged in his Amended Petition, Petitioner claims that his prior conviction for delivery of heroin cannot be a predicate offense for purposes of 28 U.S.C. § 841(b). (Doc. 9 at 11-12, ¶¶ 45-47.) He argues that the delivery of heroin does not qualify as a “serious drug felony.” Id. at 11-12, ¶ 47. Petitioner urges that for a prior conviction to be a “serious drug felony,” it must involve the “manufacturing, distributing, or possessing with intent to manufacture or distribute” a controlled substance.” 21 U.S.C. § 802(57) (2018) (defining “serious drug felony” based on the definitions in 18 U.S.C. § 924(e)(2)). (Doc. 9 at ¶¶ 46-45.) Petitioner argues that because the statute he was convicted of violating-Texas Health & Saf. Code § 481.112(a)-criminalizes even an offer to distribute or sell heroin, the statute constitutes more conduct than is covered in the definition of a “serious drug felony.” Id.
Respondent points out that Petitioner's argument relies on the amendments made by section 401 of the First Step Act of 2018 and urges that Petitioner cannot benefit from that amendment because he was sentenced 16 years prior to the enactment of the subject amendment. (Doc. 18 at 12.) See First Step Act, 132 Stat. at 5221 (providing that the relevant language “shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment”). See also United States v. Vanzandt, 821 Fed. App'x 807, 809 (9th Cir. 2020) (memorandum opinion holding that the defendant's “sentence was imposed in October of 2018, two months before the First Step Act was enacted, and so he may not be resentenced under the Act”); United States v. Asuncion, No. 18-30130, 2020 WL 5268519, at *5 (9th Cir. Sept. 4, 2020) (defendant sentenced in May 2018, several months before the Act's enactment, not entitled to be resentenced under the Act).
Petitioner concedes in his reply that he is not entitled to benefit from the amendments made by section 401 of the First Step Act of 218 and he “stands on the presentation in his [Amended Petition] with respect to this issue.” (Doc. 19.) He does not argue an alternative theory for relief on this claim. Id. at 11-12.
This Court agrees with Respondent that Petitioner's prior conviction for the delivery of heroin is a “drug offense” for purposes of 28 U.S.C. § 841. Prior to the First Step Act, § 841 applied to a prior conviction that was a “felony drug offense,” which was defined in § 802(44) as “an offense that is punishable by imprisonment for more than one year.” See Burgess v. United States, 553 U.S. 124, 126-67 (2008) (holding that § 841(b)(1)(A), which also refers to § 802(44), is “defined exclusively by § 802(44)”). To determine whether an offense is “punishable by imprisonment for more than one year” courts look to the state's maximum statutory sentence. See United States v. Rosales, 516 F.3d 749, 758 (9th Cir. 2008).
According to the record, Petitioner was convicted of delivery of heroin “under 28 grams.” As laid out by Respondent and not contested by Petitioner, under Texas Health & Saf. Code § 481.112, individuals whose offense involved between 4 to 200 grams were guilty of a felony of the first degree, § 481.112(d), setting the minimum term of imprisonment at 5 years and the maximum to 99 years. Tex. Penal Code § 12.32(a).
As such, this Court agrees with Respondent that under the definition in 28 U.S.C. § 841(b)(1)(B), Petitioner's prior conviction for delivery of heroin qualifies as a “felony drug offense” and is sufficient to support his eight-year term of supervised release. In light of the foregoing, this Court finds that Petitioner is not entitled to relief on his enhanced supervised release claim. Thus, this Court recommends that the district court deny the Amended Petition on this point.
RECOMMENDATION
This Court determines that district court has jurisdiction to consider the Amended Petition and that the law of the district of conviction applies to the merits of the Amended Petition. Under United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), Petitioner's Texas state law conviction for the delivery of heroin is not a predicate offense for a career offender designation and Petitioner lacks the required predicate offenses to be designated a career offender for purposes of the sentencing guidelines. Thus, this Court RECOMMENDS that the district court, after an independent review of the record, GRANT the Amended Petition as it relates to Petitioner's claim that he is entitled a resentencing without a career offender classification. This Court determines that Petitioner is not entitled to relief on his supervised release enhancement claim. Thus, this Court RECOMMENDS that the district court, after an independent review of the record, DENY the Amended Petition as it relates to Petitioner's claim that he is entitled relief from his enhanced term of supervised release.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply shall be filed unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-20-167-TUC-RM. Failure to file timely objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).