Goldsberry v. Yates

• Docket Number: 2:21-CV-10-BSM-JTR
• Decision Date: 28 April 2022
• Parties: JODY GOLDSBERRY Reg #41676-044 PETITIONER v. JOHN P. YATES, Warden, FCI Forrest City Low RESPONDENT
• Court: U.S. District Court — Eastern District of Arkansas

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JODY GOLDSBERRY Reg #41676-044 PETITIONER v. JOHN P. YATES, Warden, FCI Forrest City Low RESPONDENT

No. 2:21-CV-10-BSM-JTR

United States District Court, E.D. Arkansas, Delta Division

April 28, 2022

RECOMMENDED DISPOSITION

The following Recommended Disposition has been sent to United States District Judge Brian S. Miller. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of the date of this Recommendation. If you do not file objections, Judge Miller may adopt this Recommendation without independently reviewing all of the evidence in the record. By not objecting, you may waive the right to appeal questions of fact.

I. Background

Petitioner Jody Goldsberry (“Goldsberry”), an inmate in the Federal Correction Institute in Forrest City, Arkansas brings this Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 challenging: (1) the federal sentencing court's application of enhancements under the Federal Sentencing Guidelines; (2) the Bureau of Prison's calculation of his time served toward his ten-year federal sentence, which was imposed concurrently to an earlier five-year state sentence; and (3) the legality of his sentence following the United States Supreme Court's decision in Borden v. United States, 141 S.Ct. 1817 (2021). Doc. 1; Doc. 17.

Before addressing Goldsberry's claims, the Court will review the procedural history of Goldsberry's underlying criminal convictions in state and federal court.

A. Goldsberry's State Arrest and Court Proceedings

On January 29, 2013, police officers responded to a 911 call at the home of Goldsberry's mother. United States v. Goldsberry, 888 F.3d 941, 942 (8th Cir. 2018). When they arrived, they discovered that Goldsberry's mother had been shot in the arm by someone using a .45 caliber pistol.^[1] Id. A search of the residence yielded six guns, none of which were a .45 caliber pistol, and several boxes of ammunition. Id. Goldsberry, a convicted felon, was not at his mother's home when police officers arrived, but his fingerprints were found to be on one of the guns in the residence. Id.

On June 20, 2013, police officers received an anonymous tip that Goldsberry was on his mother's property mowing the grass.^[2] Sealed Presentence Investigation Report, United States v. Goldsberry, No. 4:14-CR-91-AGF (E.D. Mo. Sept. 14, 2016), ECF No. 152; Respondent's Sealed Attachment 1 at 2. Responding officers found Goldsberry operating a tractor while intoxicated. Id. Goldsberry was arrested on state charges of driving while intoxicated (“DWI”) and unlawful possession of a firearm. Id. The State elected only to pursue the DWI charge. On March 12, 2014, Goldsberry pleaded guilty to the DWI and was sentenced as a chronic offender to five years' imprisonment in the Missouri Department of Corrections (“MDOC”). State v. Jody L. Goldsberry, No. 11JE-CR03850-01 (Jefferson Co., Missouri).^[3]

B. Goldsberry's Federal Indictment, Plea, and Sentencing

On March 27, 2014, Goldsberry was charged in a federal indictment with one count of being a felon in possession of a firearm and ammunition “in or about January 2013.” Redacted Indictment, United States v. Goldsberry, No. 4:14-CR-91-AGF (E.D. Mo. Mar. 27, 2014), ECF No. 2. On April 15, 2014, the United States District Court for the Eastern District of Missouri issued a writ of habeas corpus ad prosequendum pursuant to which United States Marshals “borrowed” Goldsberry from state custody so he could be prosecuted on the federal charge. Doc. 6-1 at 1516.

On April 22, 2014, Goldsberry was arraigned in the United States District Court for the Eastern District of Missouri. He waived his right to a bond hearing and consented to detention on the federal charge. Waiver of Detention Hearing, United States v. Goldsberry, No. 4:14-CR-91-AGF (E.D. Mo. Apr. 22, 2014), ECF No. 11. Thus, from on or about April 15, 2014, through his plea and sentencing, Goldsberry remained in United States Marshal custody.

On January 28, 2016, Goldsberry pleaded guilty to being a felon in possession of a firearm and ammunition. On November 22, 2016, United States District Court Judge Audrey G. Fleissig sentenced Goldsberry to 120 months' imprisonment in the Bureau of Prisons (“BOP”).

C. Goldsberry's Direct Appeal Of His Federal Sentence

On November 28, 2016, Goldsberry filed a notice of appeal of his sentence. On June 17, 2017, while his direct appeal was still pending before the Eighth Circuit, Goldsberry was transferred from United States Marshal custody back to state custody with the MDOC.

In his appeal to the Court of Appeals for the Eighth Circuit, Goldsberry argued that Judge Fleissig committed two errors: (1) she applied a 2-level enhancement “for an offense involving between three and seven handguns” despite the fact his fingerprints were found on only one gun; and (2) she found his 2009 conviction for assaulting a law enforcement officer qualified as a “crime of violence” that could be used to increase his base offense level. Id. at 943-44.

On April 26, 2018, the Eighth Circuit entered its decision affirming Goldsberry's 120-month sentence. In doing so, the Court began by explaining how Judge Fleissig had properly calculated the guideline range for Goldsberry's sentence:

At sentencing, the court found that Goldsberry's second-degree Missouri burglary conviction was not a qualifying predicate offense under 18 U.S.C. § 924(e) or U.S.S.G. § 4B1.4(b)(3)(B). The court increased Goldsberry's offense level to 24 under U.S.S.G. § 2K2.1(a)(2) due to Goldsberry's two second-degree Missouri convictions for assault on a law enforcement officer.

Based on these findings, the court determined that Goldsberry's base offense level was 24 under U.S.S.G. § 2K2.1(a)(2), which was adjusted to level 26 after adding the 2-level enhancement under U.S.S.G. § 2K2.1(b)(1)(A) for an offense involving between three and seven firearms. A person in criminal history category VI with an offense level of 26 faced an advisory sentencing guideline range of 120 to 150 months. The statutory maximum sentence was 120 months. The court sentenced Goldsberry to a term of 120 months' imprisonment.

United States v. Goldsberry, 888 F.3d 941, 943 (8th Cir. 2018).

The Court then rejected Goldsberry's first argument because, while Goldsberry's fingerprints were found on only one of the six guns recovered inside Ms. Goldsberry's residence, Goldsberry resided in his mother's home and had constructive possession over all six guns. Accordingly, it held that Judge Fleissig did not clearly err by applying the 2-level Guidelines enhancement for offenses involving the possession of three to seven firearms. Id. Finally, even if the 2009 conviction did not qualify as a “crime of violence, ” the Court concluded that any error by Judge Fleissig was harmless.

D. Goldsberry's § 2255 Motion

On April 18, 2019, Goldsberry filed a § 2255 Motion to Vacate, Set Aside, or Correct Sentence, in which he argued, in part, that: (1) his counsel provided ineffective assistance by failing to object to him being sentencing as an “armed career criminal;” and (2) his 2009 conviction for assaulting a law enforcement officer did not qualify as a “crime of violence” and could not be used to increase his base offense level under the Federal Sentencing Guidelines. Goldsberry v. United States, No. 4:19-CV-950-AGF, 2020 WL 2085647, at *1 (E.D. Mo. Apr. 30, 2020).

In rejecting both of those claims, Judge Fleissig noted that: (1) Goldsberry had not been sentenced as an armed career criminal; and (2) his claim that his 2009 conviction did not qualify as a “crime of violence, ” had been raised and rejected by the Eighth Circuit in Goldsberry's direct appeal, which barred him from attempting to re-litigate that argument in a § 2255 Motion. Id. at *10, *15.

E. Goldsberry's Pending § 2241 Petition

On January 29, 2021, Goldsberry initiated this action. His Petition for Writ of Habeas Corpus (Doc. 1) raised two claims:

Claim One: The federal sentencing court erred by finding his 2009 conviction for assaulting a law enforcement officer qualified as a “crime of violence.”

Claim Two: The Bureau of Prisons (“BOP”) miscalculated his sentence and is making him serve “over 11 years on a 10 year sentence.” Doc. 1 at 6.

On March 17, 2021, Respondent Yates filed a Response (Doc. 11) arguing that Goldsberry's Petition should be denied because this Court lacks jurisdiction to consider and decide Claim One; and, Claim Two fails, on the merits, because the BOP properly calculated his sentence and Goldsberry has not demonstrated that he is entitled to any additional sentencing credits.

On April 26, 2022, I entered an Order granting Goldsberry's “Motion to Supplement” and allowed him to bring an additional claim:

Claim Three: Goldsberry's sentence is illegal based on the Court's holding in Borden v. United States, 141 S.Ct. 1817 (2021), that “[o]ffenses with a mens rea of reckless do not qualify as violent felonies under [the Armed Career Criminal Act.]”

Doc. 16; Doc. 17. Although Respondent Yates has not yet filed a Response to Claim Three, I find, sua sponte, that the Court lacks subject matter jurisdiction over that claim, and, for the reasons explained below, it should be dismissed.^[4]

II. Discussion

A. This Court Lacks Jurisdiction Over Claims One and Three

Goldsberry's first and third claims attack the validity of the ten-year sentence imposed by the sentencing court. In Claim One, he argues that the trial court erred by finding his 2009 conviction for assaulting a law enforcement officer was a “crime of violence” under the...