United States District Court, D. Kansas
KENNETH L. KIRKLAND, Petitioner,
CLAUDE MAYE, Warden, USP-Leavenworth, Respondent.
MEMORANDUM AND ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2241. Petitioner, a prisoner in federal custody at
USP-Leavenworth, proceeds pro se. Petitioner challenges his
sentence enhancement under 21 U.S.C. § 851. The Court
has screened his Petition (Doc. 1) under Rule 4 of the Rules
Governing Habeas Corpus Cases, foll. 28 U.S.C. § 2254,
and dismisses this action without prejudice for lack of
April 30, 2008, following a jury trial, Petitioner was
convicted of possession with intent to distribute fifty grams
or more of cocaine base in violation of 21 U.S.C. §
841(a)(1). United States v. Kirkland, No.
3:07-cr-30137-MJR-DGW (S.D. Ill.). Prior to trial, the
Government gave notice of its intent to seek an enhanced
sentence, pursuant to 21 U.S.C. § 851, based upon a
prior conviction in Missouri for Trafficking in the Second
Degree. On September 19, 2008, he was sentenced to 240
months' imprisonment-the mandatory minimum for the
offense-and ten years' supervised release. Id.
at Doc. 74. Petitioner appealed, arguing that: (1) he was
held for an unreasonable amount of time prior to being
brought before a magistrate judge; and (2) the district court
erred in failing to suppress his confession. Petitioner's
conviction was affirmed by the Seventh Circuit on June 1,
2009. United States v. Kirkland, 567 F.3d 316 (7th
filed a Petition for Writ of Certiorari with the United
States Supreme Court, which was denied on July 11, 2010.
October 4, 2011, Petitioner filed a pro se motion seeking to
reduce his sentence based on the United States Sentencing
Commission's promulgation of amendments to the Sentencing
Guidelines, following passage of the Fair Sentencing Act of
2010, Pub. L. No. 111-120, 124 Stat.2372 (2010). United
States v. Kirkland, No. 3:07-cr-30137-MJR-DGW (S.D.
Ill.). That Act required the Guidelines to be brought into
conformity with substantive provision reducing the criminal
penalties for certain crack cocaine offenses. The court
denied Petitioner's motion for sentence reduction based
on Amendment 750, finding that:
Defendant was subject to a statutory mandatory minimum term
of 240 months in prison; consequently, his guideline range
cannot be lowered by the retroactive amendment in question.
Relief under Section 3582 is not available when a retroactive
amendment “does not have the effect of lowering the
defendant's applicable guideline range.”
Id. at Doc. 117 (S.D. Ill. Feb. 6, 2012) (citing
United States v. Taylor, 627 F.3d 674, 676 (7th Cir.
January 7, 2015, Petitioner filed a pro se motion, seeking a
reduction under Amendment 782. The court denied the motion,
finding that Petitioner lacked a meritorious basis for
seeking relief under 18 U.S.C. § 3582(c) and Amendment
782 to the Sentencing Guidelines due to the preclusive effect
of Petitioner's mandatory minimum sentence. Id.
at Doc. 127 (S.D. Ill. May 14, 2015).
filed a § 2255 motion on November 29, 2010. Kirkland
v. United States, No. 10-cv-00958-MJR (S.D. Ill.) (Doc.
1.). On June 10, 2011, Petitioner filed a motion to amend and
set aside his original § 2255 motion. Id. at
Doc. 14. The court granted Petitioner's motion, and
ordered him to re-file his § 2255 motion by July 15,
2013, and to “include all claims he wishes the Court to
consider.” Id. at Doc. 16. Petitioner filed
his Amended § 2255 motion on July 15, 2013. Id.
at Doc. 17. On July 19, 2013, the court ordered Petitioner to
file another § 2255 motion by August 9, 2013, to ensure
that Petitioner had included all grounds for relief.
Id. at Doc. 18. Because Petitioner failed to submit
a new amended § 2255 motion, the court set a briefing
schedule as to Petitioner's previously-submitted amended
§ 2255 petition at Doc. 17. In that petition, Petitioner
alleged five grounds for relief, all based on ineffective
assistance of counsel. The court denied the § 2255
motion on March 4, 2014. Id. at Doc. 23.
filed a Motion to Reduce Sentence Pursuant to 18 U.S.C.
§ 3582 and the Retroactive Amendments 782, USSG, on
April 10, 2017. United States v. Kirkland, No.
3:07-cr-30137-MJR-DGW (S.D. Ill.) (Doc. 128). On April 12,
2017, the court denied the motion as moot “because the
Court already considered the precise relief sought” and
denied relief in its prior order. Id. at Doc. 129.
March 5, 2018, Petitioner filed the instant petition under 28
U.S.C. § 2241, claiming that his prior conviction
enhancement under 21 U.S.C. § 851 is null and void in
light of Descamps v. United States, 133 S.Ct. 2276
(2013) and Mathis v. United States, 136 S.Ct. 2243
(2016). (Doc. 1, at 6-7). Petitioner invokes the savings
clause of § 2255(e), arguing that § 2255 is
inadequate or ineffective to test the legality of his
Court must first determine whether § 2241 was the proper
vehicle to bring Petitioner's claims. Because “that
issue impacts the court's statutory jurisdiction, it is a
threshold matter.” Sandlain v. English, 2017
WL 4479370 (10th Cir. Oct. 5, 2017) (unpublished) (finding
that whether Mathis is retroactive goes to the
merits and the court must first decide whether § ...