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Lopez v. Merlak

United States District Court, N.D. Ohio, Eastern Division

June 14, 2019

BALDOMERO LOPEZ, Petitioner,
v.
STEVEN MERLAK, Warden, Respondent.

          JAMES S. GWIN JUDGE.

          REPORT AND RECOMMENDATION

          DAVID A. RUIZ UNITED STATES MAGISTRATE JUDGE.

         I. Background

         Baldomero Lopez has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The petition is before the magistrate judge pursuant to Local Rule 72.2. The petitioner is in the custody of the Federal Correctional Institution Elkton pursuant to journal entry of sentence in the case of United States v. Lopez, No. 7:04CR10 (M.D. Ga. Dec. 21, 2004). (R. 1, PageID #: 2.)

         The petition stems from Lopez's 2004 convictions for possession with the intent to distribute (1) cocaine and (2) marijuana, in the Middle District of Georgia, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), and 841(b)(1)(D), pursuant to a guilty plea. (R. 1, PageID #: 2; R. 8, PageID #: 32-33.) After his conviction, Lopez was adjudged to be a Career Offender under United States Sentencing Guidelines (USSG) §4B1.1, and allegedly was sentenced to a longer term of incarceration than he otherwise would have received. (R. 1, PageID #: 2-3, 9.) In his petition, Lopez challenges his designation as a Career Offender under the USSG, and raises the following arguments in support:

1. Lopez is authorized to challenge the erroneous career offender designation under 28 U.S.C. § 2241.
2. Descamps and Mathis both qualify as new statutory interpretations by the Supreme Court, which are retroactive.[1]
3. The Florida burglary statute in effect in 1988 does not qualify as a predicate offense for either ACCA or the Guidelines Career Offender sentence enhancements.
4. The district court's erroneous application of the Career Offender sentence enhancement in this case constitutes a fundamental error that resulted in a miscarriage of justice.

(R. 1, PageID #: 4, 5, 7, 9.) The respondent has filed a brief in opposition (R. 8), and Lopez has filed a reply (R. 11), with a supplement (R. 12). The respondent argues that the court has no jurisdiction to review Lopez's claims “because his Section 2255 arguments are made under the guise of Section 2241 in an attempt to circumvent the procedural requirements under Section 2255.” (R. 8, PageID #: 34.)

         II. Analysis

         A. Section 2241

         Lopez brings his petition for a writ of habeas corpus before the court pursuant to 28 U.S.C. § 2241. (R. 1, PageID #: 1, 4.) Habeas review is generally available under Section 2241 only when an inmate attacks the execution of his sentence, rather than the validity of a conviction and sentence, which is properly brought pursuant to §§ 2254 or 2255. Woody v. Marberry, No. 05-1403, 2006 WL 1083941, at *3 (6th Cir. Apr. 25, 2006); Burgess v. Merlak, No. 4:17CV1349, 2017 WL 4699493, at *1 (N.D. Ohio Oct. 19, 2017) (citing Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998)).

         The Sixth Circuit has held that claims alleging “actual innocence” of a sentencing enhancement cannot be raised under Section 2241. Jones v. Castillo, No. 10-5376, 2012 WL 2947933, at *1 (6th Cir. July 20, 2012) (citing Raymer v. Barron, 82 Fed.Appx. 431, 432 (6th Cir. 2003); Kinder v. Purdy, 222 F.3d 209, 212-214 (5th Cir. 2000); In re Davenport, 147 F.3d 605, 609-610 (7th Cir. 1998)); see also Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir. 2003). But in Hill v. Masters, the Sixth Circuit held that a prisoner may raise a sentence-enhancement claim in a Section 2241 petition in very limited circumstances. Thompson v. Terris, No. 17-1837, 2018 WL 3570974, at *2 (6th Cir. May 21, 2018) (citing Hill v. Masters, 836 F.3d 591, 595 (6th Cir. 2016)); Wright v. Merlak, No. 4:17CV2097, 2017 WL 6805687, at *2 (N.D. Ohio Nov. 14, 2017).

         Lopez argues that, under the Sixth Circuit's decision in Hill v. Masters, he has the right to challenge the sentencing district court's application of the USSG §4B1.1 Career Offender sentence enhancement. (R. 1, PageID #: 3, citing Hill, 836 F.3d 591; R. 12, PageID #: 48 (motion is based on Hill).) In Hill, the court stated:

. . . our decision addresses only a narrow subset of § 2241 petitions: (1) prisoners who were sentenced under the mandatory guidelines regime pre-United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), (2) who are foreclosed from filing a successive petition under ยง 2255, and (3) when a subsequent, retroactive change in statutory interpretation by the Supreme ...

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