Opinion
CASE NO. 5:18CV2226
02-28-2019
JEROME RICHARDSON, Petitioner, v. DAVID J. EBBERT, Warden, Respondent.
JUDGE BENITA Y. PEARSON MEMORANDUM OF OPINION AND ORDER
Pro se Petitioner Jerome Richardson, a federal prisoner incarcerated at the United States Penitentiary in Lewisburg, Pennsylvania, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. ECF No. 1. Petitioner originally filed the petition in the United States District Court for the Middle District of Pennsylvania. See id . The Pennsylvania District Court transferred the case to this Court because the petition challenges this Court's sentencing of Petitioner in a 2013 criminal case, United States v . Richardson, Case No. 5:13-CR-87, ECF Nos. 7, 8. Petitioner also has filed a motion to proceed in forma pauperis, which is granted. ECF No. 6. For the following reasons, the petition is dismissed.
I. Background
On August 9, 2013, Petitioner entered a guilty plea before this Court to a charge of robbery in the case United States v . Richardson, Case No. 5:13-CR-87. See Case No. 5:13-CR-87, ECF No. 31 (Report and Recommendation on Plea of Guilty). On December 23, 2013, the Court sentenced him to 151 months' imprisonment and three additional years of supervised release. Case No. 5:13-CR-87, ECF No. 42 (Sentencing Judgment). As part of his sentencing, he was classified as a career offender under the United States Sentencing Guidelines and received an enhanced sentence under the Sentencing Guideline's residual clause (§ 4B1.1).
Petitioner filed a pro se petition to vacate his sentence under 28 U.S.C. § 2255 in the 2013 Criminal Case on July 5, 2016. Case No. 5:13-CR-87, ECF No. 50. In the petition, he claimed the sentence enhancement was unconstitutional under Johnson v . United States, 135 S. Ct. 2551, 2563 (2015), which invalidated the Armed Career Criminal Act's ("ACCA") residual clause as unconstitutionally vague under the Due Process Clause of the Fifth Amendment. Case No. 5:13-CR-87, ECF No. 50 at PageID#: 280-81.
In August 2016, Petitioner's § 2255 petition was stayed and held in abeyance pending a decision in Beckles v. United States, in which the Supreme Court was to consider whether Johnson could be invoked in § 2255 actions challenging Guidelines-based sentences. See Case No. 5:13-CR-87, ECF No. 55. On March 6, 2017, the Supreme Court issued its decision in Beckles, holding that the Sentencing Guidelines' residual clause remains valid after Johnson because the Guidelines, unlike the ACCA, "do not fix the permissible range of sentences," and thus "are not subject to a vagueness challenge under the Due Process Clause." Beckles v . United States, 137 S. Ct. 886, 892 (2017).
In this § 2241 petition, Petitioner requests that the Court: (1) lift the stay-and-abeyance of his § 2255 petition in the 2013 Criminal Case; and (2) correct his sentence in accordance with Johnson. ECF No. 1 at PageID #: 6.
II. Discussion
The petition must be dismissed. District courts conduct a preliminary review of habeas corpus petitions to determine whether "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254 (applicable to habeas petitions under § 2241 pursuant to Rule 1(b)). If so, the petition must be summarily dismissed. See Allen v . Perini, 424 F.2d 134, 141 (6th Cir. 1970) (the district court has "a duty to screen out a habeas corpus petition which should be dismissed for lack of merit on its face").
Generally, habeas corpus petitions challenging the validity of a federal conviction or sentence are brought under 28 U.S.C. § 2255, whereas habeas petitions challenging the manner or execution of a sentence are brought under 28 U.S.C. § 2241. Hill v . Masters, 836 F.3d 591, 594 (6th Cir. 2016). In Hill, the Sixth Circuit held that a sentence-enhancement claim may be raised in a § 2241 petition in a "narrow subset" of cases by prisoners:
(1) . . . who were sentenced under the mandatory guidelines regime pre-United States v. Booker, (2) who are foreclosed from filing a successive petition under § 2255, and (3) when a subsequent, retroactive change in statutory interpretation by the Supreme Court reveals that a previous conviction is not a predicate offense for a career-offender enhancement.Id . at 599-600 (citation omitted).
Petitioner's petition on its face does not fall within Hill's exception. Petitioner was not sentenced under the pre-Booker mandatory guideline regime but was sentenced post-Booker, on December 23, 2013. See ECF No. 1 at PageID # 2. He also was not foreclosed from filing a successive petition under § 2255. He did just that, and that petition remains pending. Case No. 5:13-CR-87, ECF No. 50. Finally, there is no subsequent, retroactive change in statutory interpretation by the Supreme Court revealing that a previous conviction is not a predicate offense for a career-offender enhancement.
III. Conclusion
Accordingly, Petitioner's § 2241 petition for writ of habeas corpus is dismissed. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith.
IT IS SO ORDERED. February 28, 2019
Date
/s/ Benita Y . Pearson
Benita Y. Pearson
United States District Judge