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Kirkland v. Maye

United States District Court, D. Kansas

March 26, 2018

KENNETH L. KIRKLAND, Petitioner,
v.
CLAUDE MAYE, Warden, USP-Leavenworth, Respondent.

          MEMORANDUM AND ORDER

          JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE

         This 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 statutory jurisdiction.

         Background

         On 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 Cir. 2009).

         Petitioner filed a Petition for Writ of Certiorari with the United States Supreme Court, which was denied on July 11, 2010.

         On 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. 2010).

         On 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).

         Petitioner 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.

         Petitioner 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.

         On 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 detention.

         Analysis

         The 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 ยง ...


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