Page v. Martinez

          ORDER

          Eric J. Markovich, United States Magistrate Judge.

         Pending before the Court is an Amended Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2241 by Cleo Page (“Petitioner”). (Doc. 7). Petitioner alleges that pursuant to Mathis v. United States, 135 S.Ct. 2243 (2016), his prior conviction for possession of a controlled substance with intent to sell (cocaine) under Nev. Rev. Stat. § 453.337 is no longer a predicate offense exposing him to the sentencing enhancement under United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.1 because § 453.337 “does not qualify as a controlled substance offense under the categorical approach” in light of Mathis. (Doc. 7 at 4). Petitioner requests this Court to order his immediate release from custody and direct the sentencing court to order a hearing to determine if any further relief is warranted. Id. at 9-10.

         Respondent argues that the petition should be denied for several reasons. (Doc. 18). First, Respondent argues that Petitioner's § 2241 petition is actually a disguised 28 U.S.C. § 2255 petition that must be brought in the court of conviction because Petitioner is challenging his original sentence. (Doc. 18 at 4). Second, because Petitioner previously filed a § 2255 petition in the court of conviction, this disguised § 2241 petition is actually a second or successive § 2255 petition that must first be authorized by the Ninth Circuit prior to filing it with the sentencing court. (Doc. 18 at 4). Finally, Respondent argues that the petition does not fall within the narrow class of claims authorized under the “savings clause” of § 2255. (Doc. 18 at 6). Respondent bases this argument on the assertion that Petitioner did not (and still does not) lack an unobstructed procedural shot to present his claims for relief and that the collateral attack on his prior sentencing enhancement does not amount to a claim of actual innocence.

         For the reasons discussed below, the Court finds that Petitioner did not lack an unobstructed procedural shot to present his claim for relief prior to the Supreme Court's decision in Mathis. Mathis did not announce any new rule of law. Petitioner's claim that his underlying drug offense was broader than the generic offense and therefore unable to be used as a predicate for a career-offender sentencing enhancement existed at the time of his original § 2255 petition. Therefore, the Court will dismiss the petition.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. The Proceedings in the Central District of California

         The history of Petitioner's underlying criminal offense is well summarized in the District Court for the Central District of California's denial of Petitioner's first § 2255 petition:

On June 6, 2002, a federal grand jury returned an eight-count indictment against Petitioner and eleven co-defendants, charging them with crimes committed in connection to violations of 21 U.S.C. §§ 846, 841(a)(1), conspiracy to possess with intent to distribute and distribution of cocaine base in the form of crack cocaine. Petitioner pleaded guilty to the conspiracy count (count one) of the indictment on January 17, 2003.

On March 26, 2003, the United States Probation Office released its Presentence Investigation Report (“PSR”) to the parties. The PSR identified two prior felony convictions: (1) on January 26, 1996, for possession of a controlled substance with intent to sell in the Nevada 8th Judicial District, Case Number C121157B, for which Petitioner was sentenced to three years in state prison; and (2) on August 20, 1998, for infliction of injury on spouse in the Riverside County Superior Court, Case Number RIF76200, for which he was sentenced to three years in state prison. Although Petitioner's offense level based on the amount of crack cocaine was 36, the PSR recommended the offense level of 37, applying the level for a career offender under United States Sentencing Guideline § 4B1.1. After applying a three-level reduction for acceptance of responsibility, the PSR determined the applicable sentencing guideline range was 262-327 months.

On July 14, 2003, this Court sentenced Petitioner to a 295-month term of imprisonment, followed by a term of supervised release of five years. Petitioner's 295-month term of imprisonment, which was in the middle of the guideline sentencing range, was partly the result of his career offender status. Petitioner subsequently appealed his conviction and the Ninth Circuit affirmed the judgment. See United States v. Petitioner, 112 Fed.Appx. 568 (9th Cir. 2004).

On January 21, 2011, Petitioner filed a Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense, Pursuant to 18 U.S.C. § 3582. After the Government opposed, the Court held a hearing and denied the Motion for Retroactive Application on May 23, 2011.

Petitioner v. United States, Case No. 5:13-cv-01502-VAP (C.D. Cal.) Doc. 8 at 2-3 (“C.D. Cal. Doc.”) (internal docket citations omitted).

         On August 22, 2013, Petitioner filed a timely § 2255 motion in the District Court for the Central District of California in which he alleged that, in light of the Supreme Court's decision in Descamps v. United States, 570 U.S. 254 (2013), his prior California conviction for violation of California Penal Code § 273.5(a) for Infliction of Injury on a Spouse was no longer a prior violent crime that qualified him as a career offender under U.S.S.G. § 4B1.1. (C.D. Cal. Doc. 1). Petitioner based this claim on the assertion that the California statute was categorically broader than the generic offense and requested that the court vacate his sentence and resentence him without the career offender enhancement. (C.D. Cal. Doc. 1 at 4-5). The district court denied Petitioner's petition on December 23, 2013. (C.D. Cal. Doc. 8). The court reasoned that because the Ninth Circuit had consistently held that a conviction under § 273.5(a) of the California Penal Code qualified as a crime of violence and warranted sentencing enhancement under the U.S.S.G., Descamps did not apply to Petitioner's case. (C.D. Cal. Doc. 8 at 7:9-27). Petitioner did not appeal that decision. Petitioner v. United States, Case No. 5:16-cv-01371-VAP (C.D. Cal.) Doc. 1 at 3 (“C.D. Cal. II Doc.”) (checking the box for “no” to the question of whether Petitioner appealed the 2014 denial of his first petition under § 2255).

         On June 24, 2016, Petitioner filed another § 2255 motion in the Central District of California. (C.D. Cal. II Doc. 1). Petitioner once again challenged the application of the career offender enhancement he received in his 2003 sentencing, this time claiming that the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), made his California conviction for Infliction of Injury on a Spouse no longer a crime of violence under U.S.S.G. § 4B1.1. (C.D. Cal. II Doc. 1 at 5). Petitioner therefore claimed that he was ineligible to receive the career offender enhancement and requested that the court vacate his sentence and resentence him without the enhancement. (C.D. Cal. II Doc. 1 at 13). The Government opposed the petition. (C.D. Cal II Doc. 5). Petitioner subsequently wrote a letter to the court stating that he was voluntarily withdrawing the petition, which the court construed as a request for voluntary dismissal even though it was an improper communication. (C.D. Cal. II Docs. 6, 7). The court ordered Petitioner to show cause in writing for the dismissal. (C.D. Cal. II Doc. 8). Without any further action taken by Petitioner, the court dismissed the case without prejudice for failure to prosecute. (C.D. Cal. II Doc. 10).

         B. The Instant Petition

         On April 27, 2017, Petitioner filed his pro se Amended Petition for Writ of Habeas Corpus pursuant to § 2241 in this Court, once again challenging the sentencing enhancement he received as a career offender. (Doc. 7). The crux of Petitioner's argument is that the Supreme Court's decision in Mathis makes his prior state “conviction for possession of a controlled substance with intent to sell (cocaine) under Nev. Rev. Stat. § 453.337 no longer” a predicate offense under U.S.S.G. § 4B1.1. Id. at 4. Petitioner argues that his conviction under § 453.337 does not qualify as a controlled substance offense under the categorical approach because the statute “criminalizes a broader range of conduct than a controlled substance offense as defined in the federal guidelines.” Id.

         Petitioner's case was originally assigned to United States District Court Judge David C. Bury. In an Order dated July 11, 2017, Judge Bury directed Respondent to answer the petition within 20 days and referred the case to the undersigned for further proceedings and a Report and Recommendation. (Doc. 8). All parties then voluntarily consented to magistrate ...