United States District Court, D. Arizona
J. Markovich, United States Magistrate Judge.
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.
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
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
FACTUAL AND PROCEDURAL BACKGROUND
The Proceedings in the Central District of
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).
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).
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).
The Instant Petition
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.
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 ...