United States District Court, D. Arizona
REPORT AND RECOMMENDATION
LESLIE
A. BOWMAN UNITED STATES MAGISTRATE JUDGE.
On
March 4, 2019, the petitioner, an inmate confined in the
Federal Correctional Institution in Safford, AZ, filed a
Petition for Writ of Habeas Corpus pursuant to Title 28,
United States Code, Section 2241. (Doc. 1) The petitioner
claims that he was improperly sentenced as a Career Offender
pursuant to U.S.S.G. § 4B1.1 in light of the recent
Supreme Court decision in Mathis v. United States,
__ U.S.__, 136 S.Ct. 2243 (2016).
Pending
before the court is the respondent's motion to dismiss
the petition for lack of jurisdiction. (Doc. 11)
Pursuant
to the Rules of Practice of this Court, this matter was
referred to the Magistrate Judge for Report and
Recommendation.
The
petition should be dismissed. A section 2241 petition cannot
be used to challenge the sentencing court's guideline
calculation.
Background
Smith
was convicted in the United States District Court for the
Eastern District of Virginia of conspiracy to distribute and
possess with intent to distribute cocaine, cocaine base, and
heroin among other things. United States v. Smith,
441 F.3d 254, 273 (4th Cir. 2006); United
States v. Smith, 2017 WL 2837144, at *1 (E.D. Va. 2017),
appeal dismissed, 714 Fed.Appx. 310 (4th
Cir. 2018), cert. denied, 139 S.Ct. 375 (2018). He
was sentenced to 360 months' imprisonment as a career
offender pursuant to U.S.S.G. § 4B1.1. Id.
On
direct appeal, Smith argued that the jury should have been
“required to make findings regarding the extent of his
involvement in the conspiracy, ” and that his sentence
failed to comply with United States v. Booker, 543
U.S. 220, 125 S.Ct. 738 (2005). Smith, 441 F.3d at
273. Smith did not argue that his prior convictions did not
qualify as predicate offenses under the career offender
guidelines. Id. The Fourth Circuit affirmed his
convictions and sentences on March 21, 2006. Id. at
254, 274.
Smith
filed a petition pursuant to 28 U.S.C. § 2255 on July
12, 2007. Smith v. U.S., 2014 WL 12710241 (E.D.Va.
2014). A petition pursuant to section 2255 is appropriate
where the petitioner seeks to vacate his conviction or
sentence. The petition was dismissed on January 31, 2008.
Id. Smith filed a motion to dismiss, which the
sentencing court construed as a second section 2255 petition
on June 18, 2012. Id. The court dismissed the
petition on June 21, 2012. Id.
Smith
filed a third section 2255 petition on July 28, 2014.
Smith v. U.S., 2014 WL 12710241 (E.D.Va. 2014). He
challenged his career offender sentencing enhancement imposed
pursuant to U.S.S.G. s § 4B1.1. Id. On
September 16, 2014, the sentencing court dismissed the
petition because the Fourth Circuit had previously denied
Smith's motion for permission to file a “second or
successive” section 2255 petition. Id.
On June
17, 2016, the Fourth Circuit granted Smith permission to file
a successive section 2255 petition in light of Johnson v.
United States, 135 S.Ct. 2551 (2015), which held that
the residual clause of the Armed Career Criminal Act (ACCA)
violates due process. United States v. Smith, 2017
WL 2837144, at *1 (E.D. Va. 2017). The petition was
eventually denied, however, as controlled by Beckles v.
United States, 137 S.Ct. 886 (2017). Id. at *3.
On
March 4, 2019, Smith filed the pending petition for writ of
habeas corpus pursuant to 28 U.S.C. s § 2241. (Doc. 1)
He claims he was illegally sentenced as a career offender
pursuant to U.S.S.G. § 4B1.1 in light of the recent
Supreme Court decision in Mathis v. United States,
___ U.S.___, 136 S.Ct. 2243 (2016). There is no limit to the
number of section 2241 petitions that a prisoner may file. A
second or successive section 2255 petition, however, can only
be filed after receiving special permission from the court of
appeals. 28 U.S.C. s § 2255 (g).
The
respondent filed the pending motion to dismiss the petition
on June 27, 2019. (Doc. 11) He argues the petition should be
dismissed because a section 2241 petition cannot be used to
challenge an improper sentence. Smith filed a response on
July 24, 2019. (Doc. 18) The respondent filed a reply ...