Burch v. Warden, FCC Coleman-Medium
| Decision Date | 26 August 2013 |
| Parties | RONALD HUE BURCH, Petitioner, v. WARDEN, FCC COLEMAN-MEDIUM Respondent. |
| Court | U.S. District Court — Middle District of Florida |
When a federal inmate has had an opportunity to take a direct appeal from a conviction and sentence, and has also had an opportunity to seek collateral review under 28 U.S.C. § 2255, this Court lacks jurisdiction to entertain a subsequent petition challenging the sentence under 28 U.S.C. § 2241 except in one circumstance preserved by the "savings clause" of 28 U.S.C. § 2255(e). Gilbert v. United States, 640 F.3d 1293 (11th Cir. 2011) (en banc); Williams v. Warden, 713 F.3d 1332 (11th Cir. 2013); McKinney v. Warden, 870 F. Supp. 2d 1351 (M.D. Fla. 2012) (appeal pending).
Ronald Hue Burch is a federal inmate at the Coleman Federal Correctional Complex within this district and division. Burch has filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 4) in which he seeks to set aside his conviction and sentence imposed in the Southern District of Florida.Maintenance of the petition is squarely foreclosed by the law of the Circuit because Burch's case does not come within the exception permitted by the "savings clause" of 28 U.S.C. § 2255(e). The petition will be dismissed.
Burch and two co-defendants were indicted in the Southern District of Florida in 2001. The indictment was framed in nine counts. Burch was named in seven of them. (See Doc. 1, pp. 18-23). Pursuant to a plea agreement, Burch entered a plea of guilty to two of those offenses: Count One, which charged a conspiracy to possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a), (b)(1)(A)(ii)(II), and 846; and Count Six which charged the offense of using and carrying a firearm during and in relation to drug trafficking crimes (including the offense charged in Count One) in violation of 18 U.S.C. § 924(c)(1)(A)(i).
The statutory penalty for the Count One offense was a term of commitment of ten (10) years to life. See 21 U.S.C. § 841(b)(1)(A)(ii)(II). The statutory penalty for the Count Six offense was a mandatory minimum term of five (5) years to be served consecutively to any other sentence. See 18 U.S.C. § 924(c)(1)(A)(i) and (D)(ii).
Burch was sentenced to a term of 180 months (15 years) as to Count One, and 60 months (5 years) as to Count Six, to be served consecutively to the sentence imposed as to Count One. Significantly, there was no statutory sentencing enhancer included within either sentence. That is, more specifically, Burch was not sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) ("ACCA"), nor was he subjected to an enhanced sentence under § 924(c)(1)(A)(ii) or (iii), or as a careeroffender under Chapter Four of the United States Sentencing Guidelines.1 Burch received a term of commitment as to each count within the prescribed statutory range applicable to each offense to which he entered his plea.
Burch did not appeal. Three years later, in 2004, he filed in the sentencing court a motion under 28 U.S.C. § 2255, but that motion was denied as untimely. He did not appeal the denial.
Then, in 2011, seven (7) years after his unsuccessful motion under § 2255, Burch filed his present petition in this Court under 28 U.S.C. § 2241. His claims are not at all clear. He begins by asserting (as the Court construes it) a meritless argument that the "savings clause" of 28 U.S.C. § 2255(e) cannot restrict in any way his right to a writ under § 2241. He then complains at length concerning the multi-count structure of the indictment, but his pleas of guilty - and his conviction and sentences - were limited to Counts One and Six. He then claims, citing United States v. O'Brien, 560 U.S. 218, 130 S. Ct. 2169 (2010), that the firearm described in the indictment "was used in this case as a 'sentencing factor' instead of an 'element of the offense' to be proved [to] a jury of his peers. . . ." (Doc. 1, p. 11). O'Brien, however, has nothing to do with Burch's case. The offense alleged in Count Six, to which Burch pled guilty, specifically described the firearm involved as "a J. C. Higgins model 583-20, 12 gauge bolt action shotgun." (Doc 1, p. 11). There was no special characteristic of the weapon alleged to be a statutory sentencing enhancer as in O'Brien under 18 U.S.C. § 924(c)(1)(B)(ii) pertaining to machine guns. Burch then cites Abbott v. United States, ____ U.S. ____, 131 S. Ct. 18 (2010)2 and appears to argue that his sentence as to Count Six under § 924(c) constituted impermissible double counting of his use of the firearm described in that count. It is difficult to see how Abbott would support such a claim - indeed, Abbott is adverse to the argument - but it does not matter because use of the firearm as charged in Count Six was not an element of (or a statutory sentencing enhancer with respect to) the drug conspiracy offense alleged in Count One. The use of the firearm was charged as a separate offense in a separate count - Count Six - and there was no allegation that the firearm had been brandished or discharged so as to trigger an enhancement of the mandatory minimum sentence under 18 U.S.C. § 924(c)(1)(A)(ii) or (iii).3 Rather, Count Six was a straightforward basic charge of possessing a firearm in furtherance of a drugtrafficking crime to which Burch pled guilty and for which the mandatory minimum term is five (5) years under § 924(c)(1)(A)(i), and that is the sentence Burch received.
Under the express provisions of 28 U.S.C. § 2255(e), "an application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that . . . [the sentencing court] has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention."
To maintain his present petition, therefore, Burch must demonstrate that § 2255 is "inadequate or ineffective to test the legality of his detention." This he cannot do.
In Gilbert, supra, at the time of his sentencing under the Sentencing Guidelines, Gilbert's sentence was enhanced based upon a prior conviction of a violent felony - carrying a concealed weapon. He unsuccessfully contested the enhancement on direct appeal and later under § 2255, arguing that carrying a concealed weapon should not be classified as a violent felony for purposes of sentence enhancement under the Sentencing Guidelines.
Years later, in United States v. Archer, 531 F.3d 1347 (11th Cir. 2008), the court of appeals extended the Supreme Court decision in Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008) (), and concluded that its prior decisions concerning carrying firearms had effectively been overruled. Carrying a concealed weapon should not be classified asa violent felony. Gilbert's legal argument was vindicated! He then sought to raise it again in a petition under 28 U.S.C. § 2241. In an exhaustive en banc opinion the court of appeals concluded that Gilbert's § 2241 petition could not be entertained under § 2255(e) - the "savings clause" - because he could not demonstrate that § 2255 was "inadequate or ineffective." With two possible exceptions, the Gilbert court held that once an offender has had an opportunity for a direct appeal followed by one opportunity for collateral review under § 2255, a subsequent change in the law regarding the legality of the offender's sentence does not come within the "savings clause" and cannot be entertained. Stated another way, the fact that § 2255 may not provide a vehicle to revise every criminal sentence following every evolving change in the law affecting sentencing does not mean that one § 2255 proceeding is an inadequate or ineffective process to test the legality of a sentence. See Taylor v. Gilkey, 314 F.3d 832, 834-835 (7th Cir. 2002) (cited Gilbert, 640 F.3d at 1315).
The two exceptions not covered by Gilbert are: (1) claims under ACCA that the sentence imposed exceeds the statutory maximum that would have applied but for the sentencing error complained of (see Gilbert, 640 F.3d at 1306-1307, and 1319, n. 20); and (2) claims that newly discovered facts or evolving law demonstrate that the petitioner is actually innocent - not "innocent of the sentence" but innocent of the offense itself (see Gilbert, 640 F.3d at 1318-1319).4
A. The first exception to the rule of the Gilbert decision is an exception only because the issue was not presented and was, for that reason, not decided. That issue relates to sentences under ACCA in which an offender convicted under § 922(g) who has three prior convictions for violent felonies or serious drug offenses becomes subject to a mandatory minimum of 15 years whereas the mandatory minimum for a violation of § 922(g) absent the ACCA enhancement is 10 years. The "sentencing error" in such a case involves a showing that the ACCA § 924(e)(1) enhancement -as judged now - was illegally applied because, under evolving law, one or more of the prior convictions used as a sentence enhancer are no longer classified as a serious drug offense or as a crime of violence as in Archer, supra. In Gilbert, the enhancement based upon the prior conviction was applied under the Sentencing Guidelines and affected the Guidelines sentencing range, but did not alter the statutory mandatory minimum as occurs under ACCA. Whether § 2241 could be invoked to seek habeas relief in such a case under ACCA was not presented, and therefore not decided in Gilbert.
Since Gilbert was announced, however, this Court has confronted the issue involving an ACCA sentence and the availability of § 2241 to obtain relief where a change in the law undermines a prior conviction that was used...
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