United States District Court, N.D. Ohio
OPINION & ORDER [RESOLVING DOC. 70]
S. GWIN, UNITED STATES DISTRICT JUDGE:
January 9, 2017, Petitioner Dwight Bullard petitioned for
habeas corpus relief under 28 U.S.C. §
2255. Bullard argues that this Court improperly
classified him as a career offender and that he received
ineffective assistance of counsel. For the following reasons,
the Court DENIES Bullard's motion.
November 13, 2014, the United States indicted Petitioner
Bullard for distribution of heroin, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B), and with being a felon in
possession of a firearm, in violation of 18 U.S.C. §
December 10, 2014, Bullard filed a motion to suppress
evidence and to return illegally seized
property. Following a hearing, the Court denied
Bullard's suppression motion.
pled guilty to the indictment on January 13, 2015.
Bullard's presentence investigation report recommended
that the Court sentence Bullard as a career offender because
of two prior controlled substance convictions: a 2004 Arizona
conviction for the attempted transport of cocaine, in
violation of Arizona Rev. Stat. § 13-3408, and
a 2014 Ohio conviction for drug trafficking, in violation of
Ohio R.C. § 2925.03(A)(2). The career
offender classification subjected Bullard to a mandatory
minimum of 120 months imprisonment.
Presentence Report recommended an offense level of 35 and a
criminal history category of VI, resulting in a guideline
range of 292 to 365 months. At sentencing, Bullard's
counsel did not challenge Bullard's classification as a
career offender. The Court sentenced Bullard to 140 months
imprisonment followed by eight years of supervised
Bullard appealed the Court's denial of his motion to
suppress, but did not appeal his career offender
classification. The Sixth Circuit affirmed this Court's
suppression decision on October 6, 2016.
January 9, 2017, Bullard petitioned for habeas corpus relief
under 28 U.S.C. § 2255.Bullard argues that the Court
misclassified him as a career offender, which
“constitutes a complete miscarriage of
justice.” Bullard argues that neither the Arizona
nor the Ohio conviction qualifies as a Sentencing Guidelines
“controlled substance” offense. Bullard also
alleges ineffective assistance of counsel due to his
lawyer's failure to object to the career offender
classification at sentencing or on appeal.
Government opposes. The Government states that Bullard's
Guidelines arguments are non-constitutional claims that he
cannot raise in a § 2255
petition. The Government further argues that
Bullard received effective assistance of counsel because it
would have been “frivolous” to challenge the
career offender classification.
28 United States Code Section 2255 gives a federal
prisoner post-conviction means of collaterally attacking a
conviction or sentence that violates federal law. Section
2255 provides four grounds upon which a federal prisoner may
challenge his conviction or sentence:
1) That the sentence was imposed in violation of the
Constitution or laws of the United States;
2) That the court was without jurisdiction to impose such
3) That the sentence exceeded the maximum authorized by law;
4) That the sentence is otherwise subject to collateral
prevail on a § 2255 motion alleging a
constitutional error, the movant “must establish an
error of constitutional magnitude which had a substantial and
injurious effect or influence on the
Bullard argues that the Court improperly characterized him as
a career offender under Sentencing Guidelines § 4B1.1.
Bullard argues that both his 2004 Arizona state conviction
for attempted transportation of narcotic drugs for sale and
his 2014 Ohio state conviction for drug trafficking do not
qualify as predicate Sentencing Guidelines “controlled
Guidelines classify a defendant as a “career
offender” when the defendant “has at least two
prior felony convictions of either a crime of violence or a
controlled substance offense.” The Guidelines define
qualifying controlled substance offenses as those “that
prohibit[ ] the manufacture, import, export, distribution, or
dispensing of a controlled substance . . . or the possession
of a controlled substance . . . with intent to manufacture,
import, export, distribute, or dispense.”
Sixth Circuit has adopted a “categorical”
approach for determining whether a defendant's prior
conviction is a “controlled substance
offense.” Typically, sentencing courts only use
the fact of the prior conviction and the statutory definition
of the predicate offense to determine whether a prior
conviction is a controlled substance offense.
statutes, however, are what the Supreme Court calls
“divisible” offenses because they “se[t]
out one or more elements of the offense in the
alternative.” When a statute “list[s] potential
offense elements in the alternative, ” it
“renders opaque which element played a part in the
when a divisible statute is involved, courts employ a
“modified categorical approach.” Under the
modified categorical approach, courts first determine whether
the relevant statute of conviction encompasses conduct that
would be a “controlled substance offense, ” plus
conduct that would not. If that is the case, the federal
sentencing court consults the state-court indictment and the
jury instructions or plea agreement for the specific conduct
with which the defendant was charged in order to
appropriately characterize the offense.Finally, the
court assesses whether the specific crime of conviction is a
controlled substance offense.
Bullard argues that his Arizona Rev. Stat. §
13-3408 conviction does not categorically qualify as a
predicate controlled substance offense. Citing the Ninth
Circuit's Vera-Valdevinos v. Lynch decision,
Bullard argues that § 13-3408 is too broad to be a
“controlled substance offense” because it
criminalizes two substances that are not on the Federal
Controlled Substance Schedule.
2004, Bullard pleaded guilty to violating Arizona Revised
Statute § 13-3408. Section 13-3408 criminalizes a
variety of conduct:
person shall not knowingly:
1. Possess or use a narcotic drug.
2. Possess a narcotic drug for sale.
3. Possess equipment or chemicals, or both, for the purpose
of manufacturing a narcotic drug.
4. Manufacture a narcotic drug.
5. Administer a narcotic drug to another person.
6. Obtain or procure the administration of a narcotic drug by
fraud, deceit, misrepresentation or subterfuge.
7. Transport for sale, import into this state, offer to
transport for sale or import into this state, sell, transfer
or offer to sell or transfer a narcotic drug.
Arizona Rev. Stat. § 13-3408 “comprises
multiple, alternative versions of the crime,
” the statute is divisible and subject to
the modified categorical approach. The alternative versions
of a § 13-3408 crime include drug possession,
drug manufacturing, drug administration, and drug
§ 13-3408 encompasses both conduct that qualifies as a
§ 4B1.1 “controlled substance offense” and
conduct that does not. For example, § 13-3408(A)(1)
criminalizes possession or use of a narcotic drug. Mere
possession or use would not be a qualifying offense under the
Guidelines, which limits the enhancement to
“manufacture, import, export, distribution, or
dispensing” offenses or possession with the intent to
manufacture, import, export, distribute, or
dispense. Accordingly, this Court must
“identify, from ...