Jones v. Kizziah ( 2019 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION AT LONDON CIVIL ACTION NO. 19-233-DLB KOFIE AKIEM JONES PETITIONER v. MEMORANDUM OPINION AND ORDER GREGORY A. KIZZIAH, WARDEN RESPONDENT *** *** *** *** Kofie Akiem Jones has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. # 6) and a Supplemental Memorandum (Doc. # 10) in further support of his claims. After reviewing both filings, the Court denies Jones’s request for relief. In 2003, a grand jury in the Northern District of West Virginia charged Jones and three others in a six-count indictment stemming from an attempted bank robbery and armed bank robbery that occurred in Morgantown, West Virginia. See, e.g., United States v. Jones, 319 F. Supp. 2d 703, 703 (N.D.W. Va. 2004), aff’d 122 F. App’x 27 (4th Cir. 2005). A jury found Jones guilty of all six counts. Id. at 704. Two of those counts were violations of 18 U.S.C. § 924(c). See Jury Verdict, United States v. Jones, et al., No. 1:03-cr-47-FPS-1 (N.D.W. Va. 2003). Multiple appeals and 28 U.S.C. § 2255 habeas petitions followed. See, e.g., United States v. Jones, 337 F. App’x 297 (4th Cir. 2009). Most recently, the Northern District of West Virginia denied Jones’s motion to amend his § 2255 motion to vacate his sentence, Jones v. United States, No. 1:03CR47-01, 2019 WL 4409753, at *6 (N.D.W. Va. Sept. 16, 2019), and the Fourth Circuit Court of Appeals denied Jones’s request to file a successive § 2255 motion, In re: Kofie Akiem Jones, No. 19-418 (4th Cir. Nov. 5, 2019). Jones now seeks relief in this Court by way of a § 2241 petition. (Doc. # 6). Although Jones’s writing is not a model of clarity, the Petition and Supplemental Memorandum taken overall make clear that Jones believes he should be resentenced in light of United States v. Davis, 139 S. Ct. 2319 (2019).1 See (Docs. # 6 and 10). Jones claims Davis applies retroactively on collateral review, and he makes a variety of arguments primarily suggesting his 18 U.S.C. § 924(c) convictions are no longer valid. See id. The Court conducts a preliminary review of § 2241 habeas petitions, denying a petition if it appears from its face that the applicant is not entitled to the requested relief. See 28 U.S.C. § 2243; Alexander v. N. Bureau of Prisons, 419 F. App’x 544, 545 (6th Cir. 2011). Federal prisoners typically challenge the validity of their convictions under 28 U.S.C. § 2255 and the manner or execution of their sentences under 28 U.S.C. § 2241. Hill v. Masters, 836 F.3d 591, 594 (6th Cir. 2016) (citing United States v. Peterman, 294 F.3d 458, 461 (6th Cir. 2001)). Nevertheless, in very limited circumstances, a federal prisoner may use § 2241 to challenge his conviction or an enhancement to his sentence. Until recently, claims alleging actual innocence of a sentence enhancement could not be raised under § 2241. See, e.g., Jones v. Castillo, 489 F. App’x 864, 866 (6th Cir. 2012) (citations omitted). Hill v. Masters, however, allowed a petitioner to challenge his misapplied sentence under § 2241 when he could 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 1 In Davis, the Supreme Court struck down the residual clause in 18 U.S.C. § 924(c) as unconstitutionally vague. See Davis, 139 S. Ct. 2319. deemed a miscarriage of justice or fundamental defect.” See 836 F.3d at 595 (citing Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013); Williams v. Warden, Fed. Bureau of Prisons, 713 F.3d 1332, 1343 (11th Cir. 2016)). Even still, a petitioner cannot bring a § 2241 petition as an alternative or additional remedy to the one available under § 2255. Hernandez v. Lamanna, 16 F. App’x 317, 320 (6th Cir. 2001) (citing Charles v. Chandler, 180 F.3d 753, 758 (6th Cir. 1999)). For a variety of reasons, Jones does not fall within the extraordinarily narrow framework that would allow him to proceed with his claims in the § 2241 context. For example, Jones has failed to identify a retroactive case of statutory interpretation. Even if Davis is retroactive on collateral review, at least three circuits have explained that Davis presented a new rule of constitutional, not statutory, law. See United States v. Reece, 938 F.3d 630, 634 (5th Cir. 2019); United States v. Bowen, 936 F.3d 1091, 1098 (10th Cir. 2019); In re Hammoud, 931 F.3d 1032, 1038 (11th Cir. 2019). Aside from that, there would remain a timing problem with the petition. Jones states that he could not rely on Davis prior to now because “[h]is direct appeal and § 2255 motion were denied before Davis changed the settled law . . . .” (Doc. # 6 at 3). Jones has not truly demonstrated, however, that he had “no prior reasonable opportunity to bring his argument” that the § 924(c) residual clause was unconstitutional. See Wright v. Spaulding, 939 F.3d 695, 705 (6th Cir. 2019). As the Sixth Circuit recently explained, “a claim for habeas relief is more than the talismanic force of a new case name.” Id. “A new case matters only, if at all, because of the new legal arguments it makes available.” Id. (emphasis in original). Further, Jones has not demonstrated that his sentence “presents an error sufficiently grave to be deemed a miscarriage of justice or fundamental defect.” See Hill, 836 F.3d at 595 (citations omitted). In fact, Jones’s predicate offenses are crimes of violence under § 924(c)’s use of force clause.2 See United States v. Gooch, 850 F.3d 285, 292 (6th Cir. 2017) (concluding Hobbs Act robbery constitutes a crime of violence under the use of force clause); United States v. Mathis, 932 F.3d 242, 266 (4th Cir. 2019) (“Hobbs Act robbery constitutes a crime of violence under the force clause of Section 924(c).”) (citations omitted). Davis’s invalidation of the § 924(c) residual clause thus appears to be immaterial.3 For these reasons, Jones does not fit within the narrow category of petitioners allowed to challenge their sentences under § 2241. See Hill, 836 F.3d at 595; Wright, 939 F.3d at 705. As a result, the Court need not reach the merits of Jones’s various Davis-based claims because § 2241 is not the proper statutory mechanism for him to pursue his desired relief. Accordingly, IT IS ORDERED as follows: (1) Jones’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. # 6) is DENIED; (2) This case is DISMISSED and STRICKEN from the Court’s active docket; and (3) A separate Judgment will be filed concurrently herewith. 2 The Fourth Circuit Court of Appeals recently pointed this out when denying Jones’s request to file a successive 28 U.S.C. § 2255 motion. See In re: Kofie Akiem Jones, No. 19-418 (4th Cir. Nov. 5, 2019). 3 Jones claims the jury instructions given at his trial prevent his predicate offenses from falling within the use of force clause. (Doc. # 10 at 10–12). The Court, however, will not pass on the merits of this particular argument in this § 2241 proceeding. This 13th day of December, 2019. oe 2 Si gn ed By : up. David L. Bunning Dp “Ga="_ United States District Judge KADATA\ORDERS'\ProSe\19-233 Screening Opinion.docx