Pullen v. Ormond, No. 6:2017cv00155 - Document 33 (E.D. Ky. 2018)

Court Description: MEMORANDUM OPINION & ORDER: 1. Respondent's motion to dismiss or, in the alternative, hold this matter in abeyance (Doc. # 29 ) is GRANTED IN PART to the extent that it seeks dismissal of this action. To the extent that Respondent 9;s motion (Doc. # 29 ) alternatively seeks to hold this matter in abeyance, it is DENIED AS MOOT.2. Pullen's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241(Doc. # 1 ) is DENIED WITHOUT PREJUDICE as premature. 3. This action is STRICKEN from the Court's docket. 4. A corresponding Judgment will be entered this date. Signed by Judge David L. Bunning on 10/4/2018.(RBB)cc: COR, Petitioner Bobby Pullen (via US Mail)

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Pullen v. Ormond Doc. 33 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION AT LONDON CIVIL ACTION NO. 17-155-DLB BOBBY G. PULLEN VS. PETITIONER MEMORANDUM OPINION & ORDER J. RAY ORMOND, WARDEN RESPONDENT *** *** *** *** Proceeding without a lawyer, Petitioner Bobby Pullen filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking relief from his sentence. (Doc. # 1). Respondent J. Ray Ormond filed a motion to dismiss the petition or, in the alternative, hold this matter in abeyance. (Doc. # 29). Pullen has filed a response to the motion (Doc. # 31) and the Respondent has filed a reply (Doc. # 32). Thus, this matter has been fully briefed and is ripe for review. In April 1999, after a jury trial, Pullen was convicted in the United States District Court for the District of Kansas of one count of possession with intent to distribute approximately 320 pounds of a mixture or substance containing a detectable amount of marijuana, a controlled substance, in violation of 21 U.S.C. § 841(a)(1). In July 1999, Pullen was sentenced to a term of imprisonment of 262 months. His conviction and sentence were affirmed on appeal by the United States Court of Appeals for the Tenth Circuit. United States v. Pullen, No. 5:98-cr-40080 (D. Kansas). Dockets.Justia.com In his § 2241 petition filed in this Court, Pullen states that, at sentencing, his prior conviction for “escape/attempt” was found to be a “crime of violence” under the residual clause of U.S.S.G. § 4B1.2(a)(2), thus increasing his mandatory sentencing guideline range to 262-327 months. (Doc. # 8 at 2). Pullen now challenges whether his prior escape conviction remains a “crime of violence” for purposes of his sentencing enhancement in light of intervening case law, including but not limited to the Supreme Court’s decisions in Descamps v. United States, 133 S. Ct. 2276 (2013), and Mathis v. United States, 136 S. Ct. 2243 (2016), as well as the Sixth Circuit’s decision in Hill v. Masters, 836 F.3d 591 (6th Cir. 2016). (Docs. # 1, 8). However, as Respondent points out in his motion, Pullen is also currently challenging whether his prior escape conviction remains a “crime of violence” under the residual clause of U.S.S.G. § 4B1.2(a)(2) in a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2255 in his sentencing court, the United States District Court for the District of Kansas. United States v. Pullen, No. 5:98-cr-40080-JAR-1 (D. Kansas). Although the sentencing court denied Pullen’s motion, the matter is currently on appeal to the United States Court of Appeals for the Tenth Circuit. United States v. Pullen, No. 17-3194 (10th Cir.). A review of the appellate court’s docket shows that the matter has been briefed and oral argument was held on September 26, 2018. Id. The Court agrees with Respondent’s argument that Pullen’s petition must be denied without prejudice because his motion for relief pursuant to 28 U.S.C. § 2255 remains pending before the appellate court. The correct mechanism for a federal prisoner to challenge his or her conviction or sentence is through a motion to vacate filed pursuant to 28 U.S.C. § 2255(a). Terrell v. United States, 564 F.3d 442, 447 (6th Cir. 2009). A 2 habeas corpus petition under 28 U.S.C. § 2241 may only be used to challenge a federal conviction under very narrow circumstances where § 2255(a) provides a remedy that is structurally inadequate. Martin v. Perez, 319 F.3d 799, 804 (6th Cir. 2003). Here, Pullen’s challenge to the enhancement of his sentence is presently pending before the sentencing and appellate courts, rendering his § 2241 petition to obtain the same relief premature. Accord Smith v. United States, 89 F.3d 835 (6th Cir. 1996) (unpublished disposition) (noting that the “well established general rule is that, absent extraordinary circumstances, the district court should not consider § 2255 motions while a direct appeal is pending.”) (quoting United States v. Robinson, 8 F.3d 398, 405 (7th Cir. 1993)); Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999); White v. Grondolsky, No. 6: 06-309-DCR, 2006 WL 2385358, at *3 (E.D. Ky. Aug. 17, 2006). Although Pullen’s challenge to his sentence in his § 2255 motion is based on Johnson v. United States, 135 S.Ct. 2551 (2015) and Welch v. United States 136 S.Ct. 1257 (2016), while his challenge in this Court relies on Mathis, in both petitions, he is challenging his designation as a career offender under the residual clause of the thenmandatory sentencing guidelines. Indeed, both petitions specifically challenge whether his prior escape conviction qualifies as a “crime of violence” under the residual clause of U.S.S.G. § 4B1.2(a)(2). Because Pullen’s pending § 2255 motion may render his claims in this proceeding moot, he must complete the process of seeking relief via § 2255 before he may make even a colorable argument that his remedy under that section is “inadequate and ineffective.” Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999); White v. Grondolsky, 3 No. 6: 06-309-DCR, 2006 WL 2385358, at *3 (E.D. Ky. Aug. 17, 2006). Thus, the Court will dismiss his petition, without prejudice, as premature. Accordingly, it is ORDERED as follows: 1. Respondent’s motion to dismiss or, in the alternative, hold this matter in abeyance (Doc. #29) is GRANTED IN PART to the extent that it seeks dismissal of this action. To the extent that Respondent’s motion (Doc. #29) alternatively seeks to hold this matter in abeyance, it is DENIED AS MOOT. 2. Pullen’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. #1) is DENIED WITHOUT PREJUDICE as premature. 3. This action is STRICKEN from the Court’s docket. 4. A corresponding Judgment will be entered this date. This 4th day of October, 2018. L:\DATA\ORDERS\ProSe\Pullen 17-155-DLB Memorandum.docx 4

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