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Lopez v. Merlak

United States District Court, N.D. Ohio

August 2, 2019

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

          OPINION & ORDER [RESOLVING DOC. 1]

          JAMES S. GWIN, UNITED STATES DISTRICT JUDGE

         Baldomero Lopez files a 28 U.S.C. § 2241 habeas petition challenging his sentence.[1] At Petitioner Lopez's 2004 sentencing, he received the Sentencing Guidelines career-offender enhancement based on his 1988 Florida burglary conviction and his 1996 drug conviction. Petitioner claims that he received a longer sentence than he should have received because his Florida burglary conviction no longer qualifies as a predicate offense for the career-offender enhancement.

         On June 14, 2019, Magistrate Judge David Ruiz issued a Report and Recommendation (“R&R”) recommending that the Court deny Lopez's habeas petition because Petitioner Lopez had not shown that § 2241 gave him a right to challenge his sentence enhancement.[2]Neither party filed objections to the R&R, and absent objection, the Court may adopt the R&R without review.[3]

         Nonetheless, the Court has reviewed the R&R. While the Court agrees that Petitioner has not shown he qualifies for habeas relief, the Court comes to this conclusion on different grounds. For the following reasons, the Court DISMISSES Lopez's § 2241 habeas petition.

         Discussion

         In his petition, Lopez claims that he no longer qualifies as a career offender under U.S. Sentencing Guideline § 4B1.1. The § 4B1.1 career-offender enhancement applies to defendants convicted for a “crime of violence” or “controlled substance offense” felony who have at least two prior “crime of violence” or “controlled substance offense” convictions.[4] Petitioner argues that the Supreme Court's Descamps v. United States, 570 U.S. 254 (2013), and Mathis v. United States, 136 S.Ct. 2243 (2016), decisions apply retroactively and argues that his Florida burglary conviction no longer qualifies as a “crime of violence”.

         Petitioner has previously filed two losing § 2255 habeas petitions.[5] He brings the present petition under § 2241.

         A. Legal Standard

         Federal prisoners typically bring sentencing challenges under 28 U.S.C. § 2255. However, when a prisoner cannot meet the § 2255(h) second or successive petition requirements, and the prisoner shows that § 2255 remedies are “inadequate or ineffective to test the legality of his detention, ” the prisoner can challenge his sentence under § 2241 via the § 2255(e) savings clause.[6]

         In Hill v. Masters, the Sixth Circuit recognized narrow circumstances in which the § 2255 remedy is “inadequate or ineffective” for challenging a sentence enhancement and recognized some circumstances where petitioners may challenge an enhancement under § 2241:

(1) prisoners who were sentenced under the mandatory guidelines regime pre-United States v. Booker, 543 U.S. 220 (2005),
(2) who are foreclosed from filing a successive petition under § 2255, and
(3) when a subsequent, retroactive change in statutory interpretation by the Supreme Court reveals that a previous conviction is not a predicate offense for a career-offender enhancement.[7]

         B. Petitioner Has Not Shown that He Is Entitled to Challenge His Sentence Under § 2241

         Petitioner claims he meets the three Hill requirements. However, he satisfies only two of the three Hill requirements.

         Petitioner's December 2004 Middle District of Georgia sentence satisfies the first Hill v. Master requirement.[8] Petitioner Lopez was sentenced under the mandatory sentencing guidelines regime pre-United States v.Booker, 543 U.S. 220 (2005). Lopez also satisfies the second Hill requirement-Lopez cannot bring a § 2255 successive petition because neither Descamps nor Mathis ...


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