Smith v. Burch

          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 (4^th Cir. 2006); United States v. Smith, 2017 WL 2837144, at *1 (E.D. Va. 2017), appeal dismissed, 714 Fed.Appx. 310 (4^th 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 ...