Hill v. Masters

• Decision Date: 07 September 2016
• Docket Number: No. 15-5188,15-5188
• Citation: 836 F.3d 591
• Parties: Mark Dave Hill, Petitioner–Appellant, v. Bart Masters, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

836 F.3d 591

Mark Dave Hill, Petitioner–Appellant,

v.Bart Masters, Warden, Respondent–Appellee.

No. 15-5188

United States Court of Appeals, Sixth Circuit.

Argued: January 27, 2016

Decided and Filed: September 7, 2016

ARGUED: Eugene A. Sokoloff, Hogan Lovells US LLP, Washington, D.C., for Appellant. Michael A. Rotker, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Eugene A. Sokoloff, Neal Kumar Katyal, Hogan Lovells US LLP, Washington, D.C., for Appellant. Michael A. Rotker, United States Department of Justice, Washington, D.C., for Appellee.

Before: GILMAN, WHITE, and STRANCH, Circuit Judges.

OPINION

JANE B. STRANCH

, Circuit Judge.

This case concerns a prisoner's right to bring a successive habeas corpus petition under 28 U.SC. § 2241

, challenging the misapplication of a sentence enhancement. Appellant Mark Hill contends that a career-offender enhancement was erroneously applied to his sentence in light of subsequent caselaw establishing that his predicate offense was not a “crime of violence.” Because Hill is foreclosed from bringing a successive petition using 28 U.S.C. § 2255, he seeks to challenge his sentence under § 2241. The district court dismissed Hill's petition. For the following reasons, we REVERSE the order of the district court and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

On March 31, 2000, Hill was arrested with four fellow conspirators outside Charleston, South Carolina, following more than a year of undercover investigation into drug-trafficking activities between Baltimore and a high-crime area of Charleston. (Presentence Report (PSR) at ¶¶ 8, 11.) Hill was charged with one count of conspiracy to possess with intent to distribute one kilogram or more of heroin and less than 500 grams of cocaine, and three counts of possession with intent to distribute less than 100 grams of heroin. Shortly after the commencement of his October 2001 trial in the District of South Carolina, Hill pleaded guilty to the lesser-included offense of conspiracy to distribute more than 100 grams of heroin. 21 U.S.C. §§ 846

, 841(a) ; (PSR at ¶ 88.)

Hill was sentenced under the then-mandatory 2001 Sentencing Guidelines Manual. His total offense level of 35 reflected a four-level enhancement for his role as an organizer or leader of the conspiracy and a two-level reduction for acceptance of responsibility. (PSR at ¶¶ 38–46.) Because Hill had two prior felony convictions in Maryland—a controlled-substance offense and second-degree assault—he received a further enhancement and a criminal-history category of VI as a career offender. (Id .); USSG § 4B1.1 (2001)

(To qualify as a career offender, the defendant's instant offense must be a felony that is “either a crime of violence or a controlled substance offense,” committed by one who is eighteen years or older, and the defendant must have “at least two prior felony convictions of either a crime of violence or a controlled substance offense.”). Hill was sentenced to 300 months of imprisonment based on a guideline range of 292 to 365 months. Hill appealed his sentence, which was affirmed by the Fourth Circuit. United States v. Hill , 75 Fed.Appx. 115, 116 (4th Cir. 2003) (per curiam).

Hill has brought several challenges to his sentence over the course of his incarceration.¹ See United States v. Hill , 442 Fed.Appx. 76, 77 (4th Cir. 2011)

(denying a certificate of appealability and dismissing Hill's appeal of the district court's order denying his motion for reconsideration of his second § 2255 habeas corpus petition); United States v. Hill , 158 Fed.Appx. 436, 437 (4th Cir. 2005) (denying a certificate of appealability and dismissing Hill's appeal of the district court's order granting summary judgment to the Government and denying his first § 2255 habeas corpus petition).

In May 2014, Hill filed the motion now under review, a § 2241

habeas corpus petition, in the Eastern District of Kentucky.² In light of the Supreme Court's decision in Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and, subsequently, the Fourth Circuit's decision in United States v. Royal , 731 F.3d 333 (4th Cir. 2013), Hill alleges that his “second degree assault conviction no longer qualifies as a ‘crime of violence’ ” and that “he is now serving an erroneous career offender sentence that violates the laws of the United States.” R. 1, PageID 1; R. 4, PageID 52–53. Hill contends that without the enhancement, his guideline range would have been 235 to 293 months rather than 292 to 365 months. Moreover, he argues that as a career offender, he is “categorically ineligible” for subsequent retroactive amendments to the guidelines that could place his range as low as 188 to 235 months and reduce his sentence by “as many as nine years.” (Appellant Br. at 18, 22.)

Finding § 2241

inapposite to Hill's petition because he did not claim to be “actually innocent of the underlying battery offense,” the district court denied Hill's motion, citing our unpublished case law. R. 7, PageID 75–76 (citing Jones v. Castillo , 489 Fed.Appx. 864, 866 (6th Cir. 2012) (per curiam)). Hill then filed a notice of appeal, R. 10, PageID 100, which was held in abeyance pending resolution of a previously filed post-judgment motion for reconsideration, R. 9, PageID 78. On February 27, 2015, the district court denied Hill's motion for reconsideration and this appeal was reinstated. R. 11, PageID 108.

II. ANALYSIS

A challenge to the validity of a federal conviction or sentence is generally brought as a habeas corpus petition pursuant to § 2255

, while a petition concerning the manner or execution of a sentence is appropriate under § 2241. United States v. Peterman , 249 F.3d 458, 461 (6th Cir. 2001). Though presenting two distinct avenues for a prisoner's challenge to his incarceration, these petitions overlap through the savings-clause mechanism of § 2255(e). Because this case concerns the interrelationship between § 2255 and § 2241, both are addressed here. We begin with § 2255.

“Second or successive motions” under § 2255

are typically barred unless a petition (1) contains newly discovered evidence that “would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty,” or (2) is based on “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, where a petitioner seeks to file a successive habeas petition but cannot meet the requirements of the § 2255(h) exception, the petitioner may look to the “savings clause” of 28 U.S.C. § 2255(e) for recourse:

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 applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such 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.

Thus, where the remedy under § 2255

is inadequate or ineffective, the savings clause allows a federal prisoner to “bring a claim challenging his conviction or imposition of sentence under § 2241.” Charles v. Chandler , 180 F.3d 753, 756 (6th Cir. 1999) (per curiam). A § 2241 petition is not subject to the general rule against second or successive motions in the absence of newly discovered evidence or a new rule of constitutional law. See 28 U.S.C. § 2241. Our review of the dismissal of a § 2241 petition is de novo. Charles , 180 F.3d at 755.

The petitioner carries the burden to establish that the savings clause applies to his petition and “[t]he circumstances in which § 2255

is inadequate and ineffective are narrow.” Peterman , 249 F.3d at 461. As we have cautioned, § 2255 is not “inadequate or ineffective” merely because habeas relief has previously been denied, a § 2255 motion is procedurally barred, or the petitioner has been denied permission to file a successive motion. Charles , 180 F.3d at 756.

A. Successive Habeas Corpus Petitions Pursuant to § 2241

On a successive challenge to a conviction, a petitioner may test the legality of his detention under § 2241

through the § 2255(e) savings clause by showing that he is “actually innocent.” Wooten v. Cauley , 677 F.3d 303, 307 (6th Cir. 2012). Where a petitioner asserts factual innocence of his crime of conviction due to a change of law, he may show that his remedy under § 2255 is inadequate or ineffective by satisfying four conditions: (1) “the existence of a new interpretation of statutory law,” (2) “issued after the petitioner had a meaningful time to incorporate the new interpretation into his direct appeals or subsequent motions,” (3) that is retroactive, and (4) applies to the petition's merits such that it is “more likely than not that no reasonable juror would have convicted” the petitioner. Id. at 307–08

.

We do not have published precedent on the issue presented here, where the target of the petition is a sentence enhancement, not a conviction. The test that applies in this factual context—set out by our sister circuits and agreed upon by the parties before us—specifies the petitioner's burden to come within the savings clause of § 2255(e)

. When seeking to petition under § 2241 based on a misapplied sentence, the petitioner must show (1) a case of statutory interpretation, (2) that is retroactive and could not have been invoked in the initial § 2255 motion, and (3) that the misapplied sentence presents an error sufficiently grave to be deemed a miscarriage of justice or a fundamental defect. See

Brown v. Caraway , 719 F.3d 583, 586 (7th Cir. 2013) ; see also

Williams v. Warden, Fed. Bureau of Prisons , 713 F.3d 1332, 1343 (11th Cir. 2013) (interpreting prior precedent to allow application of the savings clause “when a fundamental defect in...