United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
JANIE S. MAYERON, Magistrate Judge.
This matter is before the undersigned United States Magistrate Judge on the petition for a writ of habeas corpus of petitioner Archie Dunklin, Jr. See 28 U.S.C. § 2241; Petition [Docket No. 1]. The Petition has been referred to this Court for a Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. Based on that review, this Court recommends dismissal of Dunklin's Petition without prejudice for lack of jurisdiction.
On December 7, 2004, the United States Attorney's Office filed a superseding indictment against Dunklin in the United States District Court for the Southern District of Illinois charging Dunklin with one count of conspiracy to possess with intent to distribute 50 grams or more of a mixture containing cocaine base in violation of 21 U.S.C. §§841(a)(1), 841(b)(1)(A), and 846. See United Statesv. Dunklin, No. 4:04-CR-40014-JPG-4 (S.D. Ill. filed Mar. 4, 2004). A jury found Dunklin guilty of the charged offense and also found that more than 50 grams of cocaine base was involved in the alleged conspiracy. Id. Prior to sentencing, the government filed an information under 21 U.S.C. § 851 establishing that Dunklin had a prior conviction for a felony drug offense, thereby increasing the statutory minimum sentence for Dunklin's offense of conviction from 10 years of imprisonment to 20 years of imprisonment. See 21 U.S.C. § 841(b)(1)(A). Then, at sentencing, the trial court determined that Dunklin qualified as a "career offender" under § 4B1.1 of the Sentencing Guidelines, thereby increasing Dunklin's recommended sentence under the Guidelines. Dunklin was sentenced to a 360-month term of imprisonment, and his conviction and sentence were affirmed on appeal. See United States v. Tolliver, 454 F.3d 660 (7th Cir. 2006).
After his direct appeal had concluded, Dunklin filed a motion in the Southern District of Illinois to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, alleging ineffective assistance by his trial counsel. See Dunklin v. United States, No. 3:07-CV-00612-JPG (S.D. Ill. filed Aug. 27, 2007). That motion was denied, and the trial court declined to issue a certificate of appealability. See id.; 28 U.S.C. § 2253(c)(1)(B). Dunklin nevertheless filed a notice of appeal, but the Seventh Circuit Court of Appeals declined review of the denial of Dunklin's § 2255 motion.
At the commencement of this action, Dunklin was incarcerated at the Federal Correctional Institution at Sandstone, Minnesota. Dunklin is now incarcerated at the Federal Correctional Institution in Ashland, Kentucky. He has petitioned this Court for habeas relief under § 2241. Dunklin has presented two grounds for relief in his Petition, each based on one of two recent Supreme Court decisions - Alleyne v. United States, 133 S.Ct. 2151 (2013) and Descamps v. United States, 133 S.Ct. 2276 (2013).
Ground One of the Petition is based on Alleyne. In Alleyne, the Supreme Court held "that any fact that increases the mandatory minimum is an element' that must be submitted to the jury." 133 S.Ct. at 2155. Dunklin pointed out that his sentence was enhanced by judicial findings under § 851 that he had committed a previous drug felony and under U.S.S.G. § 4B1.1 that he was a career-offender enhancement. See Petition at 4. According to Dunklin, these findings should have been made by a jury, not the sentencing judge, and consequently his sentence was unlawful as a result. Id.
Ground Two of the Petition is based on Descamps. In Descamps, the Supreme Court reiterated the approach sentencing courts must take in determining whether an offense previously committed by the defendant is a "violent felony" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), and therefore, subjects the defendant to greater statutory penalties. The Supreme Court explained that where a statute of governing the prior conviction is "indivisible" - that is, "one not containing alternative elements" - the sentencing court may not look beyond the elements of the statute itself to determine whether the statute criminalizes only "violent" felonies and thereby subjects the defendant to an enhanced minimum sentence under the ACCA. Descamps, 133 S.Ct. at 2281-82. The Court referred to this approach as the "categorical approach." Id. at 2281. Conversely, where a statute governing the prior conviction is "divisible" - that is, where a statute sets out the elements of the offense in the alternative - the sentencing court may look beyond the elements of the statute to documents such as indictments and jury instructions to determine whether the offense of conviction was a violent felony. Id. This approach is called the "modified categorical approach." Id.
Apparently believing that the § 4B1.1 career-offender enhancement equates to the ACCA enhancement discussed in Descamps, Dunklin argued that the jury verdict was not based on specific prior convictions to permit the court to conduct a modified categorical approach for § 4B1.1 or 28 U.S.C. § 851 enhancement purposes. Petition at 4. Accordingly, Dunklin argued that his prior Illinois convictions were ineligible for an enhanced sentence under § 4B1.1, violated Descamps and as a result, his enhanced sentence was unlawful. Id.
In its response, the Government contended that Dunklin could not avail himself of Alleyne or Descamps, as those cases do not apply retroactively to cases on collateral review. See Opposition of the United States to Petition Pursuant to 28 U.S.C. § 2241 [Docket No. 5], pp. 2-5. The Government also argued that § 2241 is an improper vehicle for Dunklin to challenge his conviction and sentence, as that challenge should instead have been brought in a motion under § 2255. Id., p. 6. Finally, the Government asserted that 28 U.S.C. § 2255(h), which places restrictions on the ability of prisoners to bring second or successive motions under § 2255, does not render § 2255 inadequate or ineffective such that Dunklin may challenge his conviction or sentence through a habeas petition. Id., pp. 6-8.
In reply, Dunklin renewed his arguments that his conviction and sentence violated Alleyne and Descamps. See Petitioner's Reply to Respondent's Answer to his Petition ("Pet. Reply") [Docket No. 6], pp. 1-3. Dunklin also contended that this is one of the rare situations in which a federal prisoner may challenge his conviction or sentence through a habeas petition, as § 2255 precludes him from bringing a successful Alleyne or Descamps challenge. Id. Lastly, Dunkin argued that as the statute under which he was convicted, 21 U.S.C. § 841(b)(1)(A), is not a divisible statute with alternative elements, the sentencing court could not use the modified categorical approach permitted by Descamp. Id. at p. 3.
"A federal inmate generally must challenge a conviction or sentence through a § 2255 motion." Lopez-Lopez v. Sanders, 590 F.3d 905, 907 (8th Cir. 2010) (citation omitted). Therefore, "[i]t is well settled a collateral challenge to a federal conviction or sentence must generally be raised in a motion to vacate filed in the sentencing court under § 2255... and not in a habeas petition filed in the court of incarceration... under § 2241." Hill v. Morrison, 349 F.3d 1089, 1091 (8th Cir. 2003). Federal district courts lack jurisdiction to hear a federal prisoner's collateral challenge to his original conviction or sentence brought in a habeas petition unless the prisoner demonstrates that the remedy provided by § 2255 is inadequate or ineffective to test the legality of his detention. See 28 U.S.C. § 2255(e) ("An application for a writ of habeas corpus [on] behalf of a [federal] prisoner... shall not be entertained... unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention."); DeSimone v. Lacy, 805 F.2d 321, 323 (8th Cir. 1986) (per curiam). The "inadequate or ineffective remedy" exception is sometimes called the "savings clause, " see Abdullah v. Hedrick, 392 F.3d 957, 959 (8th Cir. 2004), because, when it applies, it can "save" a habeas petition from being dismissed under the § 2255(e) exclusive-remedy rule. If a petitioner failed to raise a claim in a prior § 2255 petition, he may not then present his claim under § 2241 in order to circumvent the limitations on second or successive § 2255 petitions. See United States v. Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005) ("It is well-established that inmates may not bypass the authorization requirement of 28 U.S.C. § 2244(b)(3) for filing a second or successive § 2254 or § 2255 action by purporting to invoke some other procedure."); see also United States v. Lurie, 207 F.3d 1075, 1077 (8th Cir. 2000) (citing In re Davenport, 147 F.3d 605, 608 (7th Cir. 1998) ("[I]t can't be right and would nullify the AEDPA limitations if a prisoner, prevented from obtaining relief under § 2255, could simply turn to § 2241....")).
Dunklin acknowledged that he is challenging the validity of the sentence imposed in the Southern District of Illinois through his habeas petition. See Pet. Reply, p. 1. He also acknowledged that, generally speaking, such a challenge must be raised through a motion brought under § 2255 under the exclusive-remedy rule. See Petition, pp. 3-4. Nevertheless, Dunklin argued that § 2255 is inadequate or ineffective in ...