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holding that the district court lacked subject matter jurisdiction to hear petitioner's § 2241 petition since petitioner could seek to file a subsequent § 2255 petition pursuant to 28 U.S.C. § 2255(h)
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Case No. 15-cv-3700 (WMW/HB)
04-18-2016
Leroyce J. White, Petitioner, v. Denise Wilson, Warden, FCI Sandstone, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter is before the Court on the March 22, 2016 Report and Recommendation ("R&R") of United States Magistrate Judge Hildy Bowbeer. The R&R recommends that this Court grant Respondent's motion to dismiss Petitioner's 28 U.S.C. § 2241 petition without prejudice. Neither party filed objections to the R&R in the time period permitted. Because Petitioner can seek authorization to file a second 28 U.S.C. § 2255 petition—which is an adequate and effective remedy—this Court is divested of subject matter jurisdiction and must dismiss the current petition. The Court therefore adopts and incorporates the R&R.
BACKGROUND
The underlying prosecution of Petitioner Leroyce J. White occurred in the Western District of Missouri. In 2008, White received a 180-month mandatory minimum sentence under the Armed Career Criminal Act ("ACCA"). See 18 U.S.C. § 924(e)(1) (outlining mandatory minimum sentence for defendant with three prior felony convictions for a violent felony or serious drug offense). The residual clause of the ACCA in effect at that time provided that any crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another" was a violent felony. 18 U.S.C. § 924(e)(2)(B)(ii) (effective Oct. 6, 2006); see also United States v. Westberg, Crim. File No. 04-84, 2016 WL 953227, at *2 (D. Minn. Mar. 14, 2016) (explaining the residual-clause classification). Because White had two prior convictions for serious drug offenses and a second-degree assault conviction that qualified as a violent crime under the ACCA's residual clause, he received a mandatory sentence of 180 months' imprisonment.
The definition of a "serious drug offense" under the ACCA includes "an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . for which a maximum term of imprisonment of ten years or more is prescribed . . . ." 18 U.S.C. § 924(e)(2)(A)(ii). It is undisputed that White's record included 1999 and 2003 convictions for controlled-substance violations that qualified as serious drug offenses under this definition.
White sought postconviction relief, asserting ineffective assistance of counsel. See 28 U.S.C. § 2255. A court in the Western District of Missouri denied White's section 2255 petition on October 6, 2011. White v. United States, Nos. 10-0899-CV-W-ODS, 07-00320-01-CR-W-ODS, 2011 WL 4729730 (W.D. Mo. Oct. 6, 2011). White appealed his sentence and challenged, among other things, the determination that his prior convictions met the ACCA's requirements for a mandatory minimum sentence. The Eighth Circuit affirmed White's sentence on June 7, 2012. United States v. White, 481 F. App'x 275 (8th Cir. 2012).
On September 21, 2015, White petitioned this Court under 28 U.S.C. § 2241 to correct his sentence after the Supreme Court of the United States held in Johnson v. United States that "imposing an increased sentence under the residual clause of the [ACCA] violates the Constitution's guarantee of due process." See 135 S. Ct. 2551, 2563 (2015). Respondent concedes that Johnson applies retroactively but moved to dismiss White's petition because White has the opportunity to file a second 28 U.S.C. § 2255 petition to challenge his sentence.
LEGAL STANDARD
Distinct forms of relief are available under 28 U.S.C. §§ 2241 and 2255. A petition filed under section 2241 challenges the execution of a sentence and must be filed in the district of incarceration. Matheny v. Morrison, 307 F.3d 709, 711 (8th Cir. 2002). By contrast, a petition filed under section 2255 challenges the validity of the sentence itself and must be filed in the district of the sentencing court. Id. Generally, a section 2255 petition provides the exclusive remedy for attacking the validity of a sentence. Rojas v. Apker, 470 F. App'x 522, 523 (8th Cir. 2012).
At the time White filed his 28 U.S.C. § 2241 petition, he was incarcerated at Federal Correctional Institution-Sandstone located in the District of Minnesota. Since that time, he has been transferred to the Federal Prisoner Camp in Leavenworth, Kansas.
In this petition, White argues that the district court erred by imposing a 15-year mandatory minimum sentence. See Johnson, 135 S. Ct. at 2563. This argument attacks the validity of his sentence. In 2011, White challenged his conviction under 28 U.S.C. § 2255. Although 28 U.S.C. § 2255 ordinarily prohibits a second challenge, a section 2241 petition will not be dismissed as impermissibly challenging the validity of a sentence when a section 2255 petition is "inadequate or ineffective" to test the legality of a petitioner's detention. 28 U.S.C. § 2255(e).
ANALYSIS
Here, 28 U.S.C. § 2255(h)(2) provides an adequate and effective remedy by permitting a successive section 2255 habeas petition based on a "new rule of constitutional law, made retroactive to cases . . . , that was previously unavailable." See 28 U.S.C. § 2255(h)(2). Procedurally, the party seeking authorization to file a successive section 2255 petition under section 2255(h)(2) must make a prima facie showing that the petition qualifies for certification. 28 U.S.C. § 2244(b)(3)(C). The Eighth Circuit may certify the petition only if it satisfies these requirements. Id.
White argues—in effect—that because the Johnson decision did not expressly acknowledge that it applies retroactively, he cannot make a prima facie case. But Respondent concedes that Johnson satisfies the requirements of section 2255(h)(2), entitling White to seek authorization to file a second section 2255 petition. (Dkt. 7.) This concession is sufficient. When the retroactive effect of Johnson is conceded, a petitioner has made the prima facie showing that is required under 28 U.S.C. § 2255(h)(2). See Menteer v. United States, 806 F.3d 1156, 1156 (8th Cir. 2015) (citing Woods v. United States, 805 F.3d 1152, 1154 (8th Cir. 2015)).
The Supreme Court of the United States granted certiorari in Welch v. United States to resolve a circuit split regarding the retroactive effect of Johnson. 136 S. Ct. 790 (2016) (order granting certiorari); see also Ama v. United States, Nos 2:15-CV-737, 2:11-CR-56, 2016 WL 750655, at *2 (D. Utah Feb. 24, 2016) (acknowledging that circuit split over Johnson's retroactivity is currently before the Supreme Court of the United States).
Importantly, the Eighth Circuit has cautioned that a district court addressing the merits of a successive section 2255 petition "must not defer" to the Eighth Circuit's preliminary determination to authorize the filing of the successive petition. See Menteer, 806 F.3d at 1156. --------
A petition seeking relief under section 2255(h)(2) must commence within one year of the date a new rule is recognized by the Supreme Court of the United States. 28 U.S.C. § 2255(f). Because White can seek authorization to file a second section 2255 petition before the one-year time limit following the Supreme Court's June 26, 2015 Johnson decision, this Court lacks subject matter jurisdiction to address the merits of White's current petition. Hill v. Morrison, 349 F.3d 1089, 1092 (8th Cir. 2003) (explaining lack of jurisdiction); see also Greer v. Wilson, Case No. 15-cv-3094, 2015 WL 7432336, at *1 (D. Minn. Nov. 23, 2015) (reaching similar conclusion on analogous facts).
Based on the Report and Recommendation of Magistrate Judge Hildy Bowbeer, (Dkt. 12), and after a full review of the files, records and proceedings, IT IS HEREBY ORDERED that:
1. The March 22, 2016 Report and Recommendation, (Dkt. 12), is adopted;
2. White's petition, (Dkt. 1), is DISMISSED WITHOUT PREJUDICE, and;
3. Respondent's motion to dismiss, (Dkt. 8), is GRANTED. LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: April 18, 2016
s/Wilhelmina M. Wright
Wilhelmina M. Wright
United States District Judge