Glover v. Warden of USP Atwater
| Decision Date | 06 August 2019 |
| Docket Number | Case No. 18-cv-1818-DGW |
| Parties | MICHAEL GLOVER, #39538-044 Petitioner, v. WARDEN OF USP ATWATER, CA, Respondent. |
| Court | U.S. District Court — Southern District of Illinois |
On October 5, 2018, Petitioner Michael Glover, also known as Born Taleem Bey, filed his pro se Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). Glover is currently incarcerated at USP-Atwater, California, serving a 360-month sentence after being convicted of multiple counts of unlawfully possessing a firearm and possession with intent to distribute heroin.2 Glover invokes Mathis v. United States, - U.S. -, 136 S. Ct. 2243 (2016), and Sessions v. Dimaya, - U.S. -, 138 S. Ct. 1204 (2018), to challenge sentence enhancements to two of the offenses for which he was convicted. He argues that he did not use, carry, or possess a firearm to commit a "crime of violence" as defined by 18 U.S.C. § 924(c)(1)(A), which would nullify the 10-year mandatory sentence he received for his conviction under 18 U.S.C.§ 924(c)(1)(A)(iii).3 Glover's Petition also implies that Mathis precludes the use of a prior Missouri controlled substance conviction to enhance the sentence imposed for his drug trafficking conviction. He seeks to be resentenced without these enhancements.
Respondent has answered the Petition (Doc. 13), and Glover has replied (Doc. 18); the matter is ripe for disposition. For the reasons discussed below, Glover's Petition (Doc. 1) shall be DENIED.
On February 27, 2013, a jury found Glover guilty of two counts of being a felon in possession of a firearm,4 one count of possession with intent to distribute heroin,5 and one count of possessing a firearm in furtherance of a drug trafficking crime.6 United States v. Glover, No. 12-cr-0243-JAR-1, Doc. 163 (E.D. Mo. Feb. 27, 2013). The statutory sentencing range for Glover's first two firearm convictions was 0-10 years imprisonment, 18 U.S.C. §§ 922(g)(1) and 924(a)(2), neither of which were enhanced by any statutory or Guidelines mechanisms. Glover's possession with intent to distribute heroin conviction normally carried a mandatory minimum sentence of ten years (120 months) imprisonment. 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).
However, Glover's mandatory minimum sentence was increased to twenty years (240 months) imprisonment pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 851 based on a 1996 Missouri felony drug conviction. See Glover, No. 12-cr-0243-JAR-1 at Docs. 53, 104, 183; see also (Doc. 14-1, pp. 8, 16). Glover's final firearm conviction was also enhanced after the sentencing courtfound he had discharged a firearm at police in relation to a drug trafficking crime (namely, his crime of possession with intent to distribute heroin). Id. at Docs. 183, 198. This finding enhanced Glover's final firearm conviction to carry a mandatory minimum sentence of ten years (120 months) imprisonment which must run consecutively to his term of imprisonment for his other crimes. 18 U.S.C. §§ 924(c)(1)(A)(iii) and 924(c)(1)(D)(ii).
Ultimately, Glover was sentenced to a total of 360 months imprisonment, consisting of concurrent 120-month terms on Counts 1 and 4, a concurrent 240-month term on Count 2, plus a consecutive 120 months for Count 3. Glover, No. 12-cr-0243-JAR-1, Doc. 183 (E.D. Mo. June 5, 2013). Neither Glover nor his counsel filed an objection to the Presentence Report ("PSR") prior to Glover's sentencing hearing, and Glover specifically directed his counsel not to object to the PSR or the sentencing court's findings during the sentencing hearing. Id. at Doc. 198, pp. 3, 18-20.
Glover filed a direct appeal challenging his conviction, but not his sentence—the Eighth Circuit upheld the conviction and dismissed Glover's appeal. Id. at Doc. 206. In June 2015, he filed a motion under 28 U.S.C. § 2255, arguing that (1) he could not have been legally prosecuted because he is not a United States citizen; (2) the United States cannot prosecute him for crimes because it is not "the interested party;" (3) his Judgment of Conviction is void because it was not "verified;" and (4) the United States had no standing to prosecute him because it was not a "holder-in-due-course." Glover v. United States, No. 15-cv-1027-JAR, Doc. 6 (E.D. Mo. Aug. 21, 2015). Glover's petition was denied in its entirety, and no certificate of appealability was granted. Id. Glover subsequently filed a motion for new trial, which was denied by the sentencing court and affirmed by the Eighth Circuit on appeal. Glover, No. 12-cr-0243-JAR-1, Docs. 214, 215, 216.
This action followed.
Glover's Petition primarily attacks the sentence enhancement applied to his conviction under 18 U.S.C. § 924(c)(1)(A)(iii) for possessing a firearm in furtherance of a drug trafficking crime. Contrary to the transcript of the sentencing hearing, the text of the PSR, and the final judgment of conviction, Glover insists that the sentence for this conviction was enhanced due to the sentencing court finding that his other two unlawful firearm possession convictions were "crimes of violence" as defined by 18 U.S.C. § 924(c)(3)(B)'s residual clause. He argues that Johnson v. United States, 576 U.S. -, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, - U.S. -, 138 S. Ct. 1204 (2018), both have held that similar statutory language is unconstitutionally vague, and this clause cannot legally serve as the basis for enhancing his sentence. He further argues that the conduct underlying his conviction (i.e., his unlawful possession of a firearm) is not in itself a violent act, and therefore may not be considered a "crime of violence" under the residual clause. Finally, while not explicitly stated in his Petition, Glover also appears to attack one or both of his sentence enhancements pursuant to Mathis v. United States, - U.S. -, 136 S. Ct. 2243 (2016), arguing that none of his prior convictions are a categorical match for a "crime of violence" as defined by § 924(c)(3)(B).
Respondent counters that Glover's habeas claim fails to satisfy the requirements of the savings clause in 28 U.S.C. § 2255(e). Respondent argues, pointing to the underlying record, that neither of Glover's sentence enhancements invoked, relied upon, or otherwise had anything to do with a "crime of violence"—the enhancements were explicitly and specifically made due to Glover's use of a firearm in relation to a drug trafficking offense (i.e., his possession with intentto distribute heroin offense) which enhanced his sentence under 18 U.S.C. § 924(c)(1)(A)(iii), and a prior controlled substance offense (i.e., his 1996 Missouri controlled substance conviction) that enhanced his statutory minimum sentence under 21 U.S.C. § 841(b)(1)(A). Further, Respondent argues that Glover procedurally defaulted on his present claim by failing to raise his challenge on direct appeal, and that Glover waived any claim relating to whether his prior Missouri conviction was properly considered a "controlled substance offense." Finally, Respondent argues that even if Glover's habeas claim was properly brought and adequately presented, it fails on the merits.
Generally, petitions for writ of habeas corpus under 28 U.S.C. § 2241 may not be used to raise claims of legal error in conviction or sentencing, but are limited to challenges regarding the execution of a sentence. See Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998).
Aside from the direct appeal process, a prisoner who has been convicted in federal court is generally limited to challenging his conviction and sentence by bringing a motion pursuant to 28 U.S.C. § 2255 in the court which sentenced him. A § 2255 motion is ordinarily the "exclusive means for a federal prisoner to attack his conviction." Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003). And, a prisoner is normally limited to only one challenge of his conviction and sentence under § 2255. A prisoner may not file a "second or successive" § 2255 motion unless a panel of the appropriate court of appeals certifies that such motion contains either 1) newly discovered evidence "sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense," or 2) "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255(h).
However, it is possible, under very limited circumstances, for a prisoner to challenge hisfederal conviction or sentence under § 2241. 28 U.S.C. § 2255(e) contains a "savings clause" which authorizes a federal prisoner to file a § 2241 petition where the remedy under § 2255 is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). See Hill v. Werlinger, 695 F.3d 644, 648 (7th Cir. 2012) () (citing Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002); see also United States v. Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002). The Seventh Circuit construed the savings clause in In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998): "A procedure for postconviction relief can be fairly termed inadequate when it is so configured as to deny a convicted defendant any opportunity for judicial rectification of so fundamental a defect in his conviction as having been imprisoned for a nonexistent offense." In other words, "there must be some kind of structural problem with section 2255 before section 2241 becomes available." Webster v. Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015).
The Seventh Circuit has explained that, in order to fit within the savings clause following Davenport, a petitioner must meet three conditions. First, he...
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