Moore v. Merlak, No. 1:2017cv00170 - Document 23 (N.D. Ohio 2019)
Court Description: Opinion & Order signed by Judge James S. Gwin on 1/31/19. The Court, for the reasons set forth in this order, overrules petitioner's objections, adopts the Report and Recommendation of the Magistrate Judge, and dismisses Moore's 28 U.S.C. § 2241 habeas petition. Furthermore, the Court certifies that no basis exists upon which to issue a certificate of appealability. (Related Docs. 1 and 18 ) (D,MA)
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Moore v. Merlak Doc. 23 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO DENZIL T. MOORE, Petitioner, vs. STEVEN MERLAK, Respondent. : : : : : : : : : : : CASE NO. 1:17-cv-170 OPINION & ORDER [Resolving Doc. 1] JAMES S. GWIN, UNITED STATES DISTRICT JUDGE: Denzil Moore files a 28 U.S.C. § 2241 habeas petition.1 He claims that his prior convictions no longer qualify as career-offender predicate offenses and that, because he is no longer a career offender under U.S. Sentencing Guideline § 4B1.1, he should be resentenced. Magistrate Judge Jonathan D. Greenberg recommends that the Court dismiss Moore s p—t“t“on.2 He finds that the petition does not qualify as one of the narrow subs—t of sentence-enhancement challenges that may proceed under § 2241. Moore objects.3 For the following reasons, the Court OVERRULES P—t“t“on—r s ob”—ct“ons, ADOPTS Magistrate Judge Greenberg s Report and Recommendation ( R&R ), and DISMISSES Moor— s petition. 1 Doc. 1. Respondent Merlak returns the writ. Doc. 8. Petitioner Moore files a traverse to the return of writ, Doc. 9, and files a notice of recent legal authority, Doc. 10. Per Ma’“strat— Ju–’— Gr——nb—r’ s May 21, 2018 order, Merlak r—spon–—– to Moor— s arguments that, in light of two recent cases, § 2241 is the appropriate procedural vehicle for the habeas challenge. Doc. 14. Replying, Moore filed a traverse. Doc. 15. 2 Doc. 18. 3 Doc. 19. Respondent Merlak opposes. Doc. 20. Petitioner Moore replies. Doc. 21. Dockets.Justia.com Case No. 1:17-cv-170 Gwin, J. I. Discussion The Federal Magistrates Act requires a district court to conduct a de novo review only of those portions of a R&R to which the parties have objected.4 In 2002, a federal district court sentenced Moore for a drug felony conviction. In doing so, it applied the § 4B1.1 career-offender sentence enhancement because of Moor— s prior state cocaine trafficking and federal bank robbery convictions.5 The career-offender enhancement applies to defendants sentenced for a violent or controll—– substanc— o‘‘—ns— ‘—lony who hav— at l—ast two pr“or conv“ct“ons in one of these felony categories.6 Moore files a § 2241 petition to challenge his career-offender sentence enhancement. Federal prisoners typically bring sentencing challenges under 28 U.S.C. § 2255. However, when a prisoner cannot meet the requirements for a § 2255(h) successive petition and § 2255 remedies are “na–—quat— or “n—‘‘—ct“v— to test the legality of his detention, th— § 2255(e) savings clause allows the sentencing challenge to proceed under § 2241.7 The Sixth Circuit in Hill v. Masters recognized that a narrow subs—t o‘ sentenceenhancement challenges satisfy the § 2255(e) savings clause requirements and are properly brought under § 2241.8 The court limited its decision to § 2241 petitions meeting three criteria: (1) prisoners who were sentenced under the mandatory guidelines regime pre-United States v. Booker, 543 U.S. 220 (2005), (2) who are foreclosed 4 28 U.S.C. § 636(b)(1). 5 United States v. Moore, No. 1:01-cr-474 (N.D. Ohio), Docs. 24 at 4 5, 29, 30 at 5 7, 46. Moore was convicted for possession with intent to distribute cocaine base under 21 U.S.C. §§ 841(a)(1), (b)(1)(A). 6 U.S. Sentencing Guidelines Manual § 4B1.1 (U.S. Sentencing Comm'n 2018) 7 28 U.S.C. § 2255(e); Hill v. Masters, 836 F.3d 591, 594 95 (6th Cir. 2016) (citation omitted). 8 Hill, 836 F.3d at 599 600. -2- Case No. 1:17-cv-170 Gwin, J. 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.9 Moore has argued that Hill entitles him to bring this § 2241 habeas petition. Most pertinent, he says that two Supreme Court rulings have since revealed that his state cocaine trafficking and federal bank robbery convictions no longer qualify as predicate offenses. In the R&R, Magistrate Judge Greenberg found that Moore s p—t“t“on did not satisfy the third Hill criterion because his prior convictions still constitute predicate offenses. As a result, he concluded that Moor— s p—t“t“on –“– not m——t th— § 2255(e) savings clause requirements and could not proceed under § 2241. Moore subsequently objected on various grounds to Ma’“strat— Ju–’— Gr——nb—r’ s finding that his state cocaine trafficking conviction remains a predicate offense, but did not object to that same finding for the bank robbery conviction.10 For the following reasons, the Court agrees with Magistrate Judge Greenberg s R&R. Although Moore satisfies the first two Hill requirements,11 he fails the third. Moore does not show that a retroactive Supreme Court statutory interpretation ruling has since disqualified either of his prior convictions as career-offender predicate offenses. In Moor— s objections, he ar’u—s that th— Supr—m— Court s Descamp v. United States and United States v. Mathis decisions12 reveal that his state cocaine trafficking conviction is 9 Id. Th— Court a–opts th— R&R s bank robb—ry conv“ct“on analys“s w“thout r—v“—w. Thomas v. Arn, 474 U.S. 140, 149 52 (1985) (explaining that district courts may adopt without review parts of the R&R to which no party has objected). 11 Moore was sentenced in 2002 under the then-mandatory sentencing guidelines. Moore, No. 1:01-cr-474 (N.D. Ohio), Docs. 29, 30. Additionally, § 2255(h) precludes Moore from bringing another § 2255 petition. Doc. 1. 12 Descamps v. United States, 570 U.S. 254 (2013); Mathis v. United States, 136 S. Ct. 2243 (2016). 10 -3- Case No. 1:17-cv-170 Gwin, J. no longer a career-offender predicate offense.13 Descamps –“r—ct—– courts to us— th— cat—’or“cal approach ‘or ass—ss“n’ wh—th—r a –—‘—n–ant s prior state conviction is a predicate offense. A –—‘—n–ant s prior conviction qualifies only if the conv“ct“on statut— s —l—m—nts ar— th— sam— as, or narrow—r than, the career-offender offense s —l—m—nts. For –“v“s“bl— statut—s that define multiple offenses by listing multiple, alternative elements, with some alternatives not qualifying as a predicate offense, Descamps created th— mo–“‘“—– cat—’or“cal approach. This approach allows courts to first consult limited documents (e.g., indictments, sentencing entries) to identify which statutory alternative was th— bas“s o‘ th— –—‘—n–ant s pr“or conv“ct“on before doing the element-comparison analysis. In Mathis, the Supreme Court simply reiterated that courts must not consider the particular way the defendant committed the prior offense when applying these approaches. Moor— s stat— cocaine trafficking conviction statute, Ohio Revised Code § 2925.03 (1995), contained multiple offenses, only some of which qualify as a predicate controlled substance offense. 14 This calls for the modified categorical approach to identify which version of the offense formed the basis of Moore s conv“ct“on. H—r— “s wh—r— Moor— s ob”—ct“ons com— “nto play. Moor— corr—ctly ass—rts that no court records appear to specify which § 2925.03 subsection was the basis of his conviction. However, Moore attaches a sentencing entry that says he was convicted for 13 Although these cases involved Armed Career Criminal Act sentence enhancements, th—“r analys“s also applies to the determination of whether a prior conviction qualifies as a predicate offense for the purposes of the careeroffender enhancement under USSG § 4B1.2(a)(2). United States v. Smith, 681 F. App'x 483, 488 (6th Cir.), cert. denied, 137 S. Ct. 2144 (2017). 14 United States v. Robinson, 333 F. App'x 33, 35 (6th Cir. 2009) ( [A]t l—ast 2 o‘ th— 10 subs—ct“ons o‘ Oh“o Rev. Code § 2925.03(A) do not qualify as controlled substance offenses within the meaning of U.S.S.G. § 4B1.2(b). ); United States v. Wright, 43 F. App'x 848, 852 (6th Cir. 2002). -4- Case No. 1:17-cv-170 Gwin, J. count one of the indictment. Because count on— o‘ Moor— s tra‘‘“ck“n’ indictment essentially tracks the language from § 2925.03(A)(2),15 this provision formed the basis of Moor— s state conviction.16 As Magistrate Judge Greenberg correctly stated, the Sixth Circuit has concluded that § 2925.03(A)(2) is a career-offender predicate offense.17 The statutory provision constitutes a § 4B1.2(b) controll—– substanc— o‘‘—ns— because it criminalizes the possession of a controlled substance with intent to distribute it.18 Moore objects to this conclusion. He asserts that Magistrate Judge Greenberg considered the way that Moore committed the offense. Courts, however, may consult the indictment for divisible statutes.19 And the fact that the indictment, in a minor departure from the § 2925.03(A)(2) language, specifically referenced [c]ocaine, a Sch—–ul— II –ru’ does not mean that Magistrate Judge Greenberg considered the specific drug when comparing the conviction statute an– controll—– substanc— o‘‘—ns— elements. Moore also claims that § 2925.03(A)(2) s —l—m—nts ar— broa–—r than th— controll—– substanc— o‘‘—ns— elements because the statutory provision criminalizes offers to sell a controlled substance. Section 2925.03(A)(2), however, does not criminalize offers to sell 15 Compare Doc. 17 (state cocaine trafficking indictment), with Ohio Rev. Code § 2925.03(A)(2) (1995). Robinson, 333 F. App'x at 36 ( Wh—r— th— char’“n’ –ocum—nt clos—ly tracks th— statutory lan’ua’— o‘ th— relevant subsection, the fact that the subsection is not also identified by its number does not create any reasonable doubt 16 about wh“ch subs—ct“on has b——n char’—–. ). 17 Id. ( B—caus— § 2925.03(A)(2) “nclu–—s an —l—m—nt o‘ manu‘actur—, “mport, —xport, –“str“but“on, or –“sp—ns“n’, or “nt—nt to –o thos— th“n’s, that subsection of the Ohio statute falls within the ambit of U.S.S.G. § 4B1.2(b). ). See also United States v. Karam, 496 F.3d 1157, 1167 68 (10th Cir. 2007) (hol–“n’ that [t]h—r— can b— no –“sput— that an Oh“o R—v. Co–— § 2925.03(A)(2) conv“ct“on “s a controll—– substanc— o‘‘—ns—); Bullard v. United States, No. 1:14-CR-411, 2017 WL 2291419, at *5 (N.D. Ohio May 25, 2017); United States v. Nesbitt, No. 4:15-cr-18 (N.D. Ohio Oct. 5, 2017), Doc. 38 at 2 3. 18 Robinson, 333 F. App'x at 36 (citing United States v. Wright, 43 F. App'x 848, 852 53 (6th Cir. 2002)). 19 E.g., Mathis, 136 S. Ct. at 2249 ( Un–—r [th— mo–“‘“—– cat—’or“cal approach], a s—nt—nc“n’ court looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted o‘. ). -5- Case No. 1:17-cv-170 Gwin, J. § 2925.03(A)(1) does.20 This objection is overruled as well. The Court also overrules Moore s ob”—ct“on that the government violated Rul—s 32.1 an– 28(’) by not providing him copies of (unidentified) unpublished opinions cited in their briefs. These rules are from the Federal Rules of Appellate Procedure, which do not apply to district court proceedings.21 Lastly, th— Court –o—s not a––r—ss Moor— s Johnson v. United States22 related objection because it is unintelligible and, in any event, would not apply. Because Moor— s p—t“t“on –o—s not satisfy all three Hill requirements for a § 2241 sentence-enhancement challenge, the Court lacks jurisdiction over his petition. Conclusion For the reasons stated, the Court OVERRULES P—t“t“on—r s ob”—ct“ons, ADOPTS Ma’“strat— Ju–’— Gr——nb—r’ s R&R, incorporating it fully herein, and DISMISSES the petition. Furthermore, the Court certifies that no basis exists upon which to issue a certificate of appealability.23 IT IS SO ORDERED. s/ Dated: January 31, 2019 James S. Gwin JAMES S. GWIN UNITED STATES DISTRICT JUDGE 20 E.g., United States v. Rushin, No. CR 3:16-00140-01, 2017 WL 3401296, at *2 (S.D.W. Va. Aug. 8, 2017). Section 2925.03(A)(2) has only a mens rea element involving knowing/believing the substance is intended for sale. 21 See Fed. R. App. P. 1(a)(1). 22 Johnson v. United States, 135 S. Ct. 2551 (2015). 23 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). -6-
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