United States District Court, S.D. Georgia, Brunswick Division
LISA GODBEY WOOD, Chief District Judge.
Presently before the Court are Petitioner Tracy Cotrell's ("Cotrell") Objections to Magistrate Judge James E. Graham's Report and Recommendation. Dkt. No. 14. After an independent and de novo review of the entire record, the undersigned: OVERRULES Cotrell's Objections, dkt. no. 16; concurs with the Magistrate Judge's Report and Recommendation; ADOPTS, as supplemented below, the Magistrate Judge's Report and Recommendation as the opinion of the Court; and DISMISSES Cotrell's Petition for Writ of Habeas Corpus, dkt. no. 1, filed pursuant to 28 U.S.C. § 2241.
Cotrell is currently incarcerated at the Federal Correctional Institution in Jesup, Georgia. Cotrell was convicted in the Northern District of Florida after he pleaded guilty to conspiracy to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § 846, and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) (1). Cotrell was sentenced to life imprisonment on the conspiracy charge and to 120 months' imprisonment on the firearm charge, to be served concurrently. Dkt. No. 9, p. 1 (citing United States v. Cotrell, Case No. 4:01-cr-00011, Dkt. Nos. 49, 50, 63) (S.D. Fla.)).
Cotrell's sentence was based in part on the Government's notice of intent, filed pursuant to 21 U.S.C. §§ 841 and 851, to seek an enhanced sentence because Cotrell was a repeat felony drug offender. Specifically, the Government sought enhancement due to two felony convictions from the State of Ohio Court of Common Pleas: 1) trafficking marijuana and aggravated trafficking in Case No. 86cr144B, and 2) drug abuse in Case No. 88cr268. Id. at p. 2. After his sentencing in the Southern District of Florida, Cotrell filed a direct appeal with the Eleventh Circuit Court of Appeals, which he later moved to dismiss. Id. at p. 3.
Cotrell filed a motion to vacate his sentences and convictions pursuant to 28 U.S.C. § 2255 in the Northern District of Florida and asserted that his plea agreement was not entered into voluntarily and that counsel was ineffective for failing to advise him of what was required to earn a substantial assistance motion. The Northern District of Florida denied Cotrell's motion. Dkt. Nos. 9-8, 9-9. The Eleventh Circuit dismissed Cotrell's appeal for lack of prosecution. Dkt. No. 9, p. 4.
In this Petition, Cotrell argues his Ohio conviction for drug abuse is not a "controlled substance offense" "and as such could not serve as a predicate conviction for enhancement." Dkt. No. 1, p. 4. Cotrell alleges that the sentencing court aggregated the methamphetamine sales from four (4) separate occasions to "trigger a violation of 21 U.S.C. §§ 841(b) (1) (A) & (B)." Id . According to Cotrell, his claims were foreclosed during previous opportunities to attack his sentences, and he cannot bring the claims he presents to this Court in a second or successive Section 2255 motion. Cotrell essentially argues he satisfies the savings clause of Section 2255(e) and should be permitted to proceed via this Section 2241 Petition.
Respondent asserts Cotrell fails to satisfy the savings clause, and his petition should be dismissed. Respondent also asserts Cotrell's contention that his sentence should not have been enhanced is without merit, as the phrase "controlled substance offense" is irrelevant to Cotrell's sentence as a repeat felony drug offender under 21 U.S.C. §§ 841 and 851. Dkt. No. 9, p. 6.
The Magistrate Judge determined that Cotrell failed to satisfy the savings clause of Section 2255(e) because he did not cite to any retroactively applicable case law which would permit Cotrell to file a second or successive Section 2255 motion. Dkt. No. 14, pp. 2-6. For this same reason, the Magistrate Judge also determined Cotrell could not bring a second or successive Section 2255 motion pursuant to subsection (h) of that statute. Id. at p. 7. The Magistrate Judge observed Cotrell had unsuccessfully attacked his convictions and sentences on a previous occasion and noted that the procedural restrictions applicable to second or successive Section 2255 motions does not make the remedy afforded by Section 2255 inadequate or ineffective. Id. at pp. 6-7.
Cotrell filed Objections to the Magistrate Judge's Report and Recommendation. The undersigned concurs with the Magistrate Judge's determination that Cotrell fails to satisfy Section 2255's savings clause and the Magistrate Judge's recommended dismissal of Cotrell's Petition. Williams v. Warden, Fed. Bureau of Prisons, 713 F.3d 1332, 1338 (11th Cir. 2013) (holding that the savings clause imposes a subject matter jurisdictional limit on Section 2241 petitions). Nevertheless, Cotrell raises arguments in his Objections which the undersigned now addresses, in conjunction with certain arguments contained in Cotrell's original Petition.
Cotrell contends his "drug abuse" conviction in the State of Ohio is not a controlled substance offense and cannot serve as a "predicate conviction" for enhancement purposes. Dkt. No. 1, p. 4. Cotrell argues he is factually innocent of the predicate convictions forming the basis of his enhanced sentence. Dkt. No. 16, p. 4. Cotrell also argues that the use of his drug abuse conviction as a predicate felony conviction constitutes a violation of the ex post facto clause. Id. at p 5.
Cotrell's assertions reveal he has confused his sentence enhancement for being a repeat felony drug offender under 21 U.S.C. §§ 841 and 851 with the enhancement for prior "controlled substance offenses" under the career offender provisions of the United States Sentencing Guidelines ("U.S.S.G."), §§ 4B1.1 and B1.2. A defendant is a career offender under the Guidelines "if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). "Controlled substance offense" is defined as "an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense." U.S.S.G. § 4B1.2(b).
In contrast, the penalty provision of 21 U.S.C. § 841 provides for a mandatory sentence of life imprisonment for any person convicted of drug distribution offenses involving 50 grams or more of methamphetamine (as Cotrell was) "after two or more prior convictions for a felony drug offense have become final[.]" 21 U.S.C. § 841(b) (1) (viii) (West 2000 version). A "felony drug offense" is defined as "an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, or depressant or stimulant substances." 21 U.S.C. § 802(44) (West 2000 version). The United States Supreme Court interpreted the definition of "felony drug offense" as defined in Section 802 to be unambiguous and agreed with the interpretation that "all defendants whose prior drug crimes were punishable by more than one year in prison would be subject to the § 841(b) (1) (A) enhancement, regardless of the punishing jurisdiction's classification of the offense." Burgess v. United States, 553 U.S. 124, 129 (2008). In so doing, the Court noted "Congress stated that [t]he term felony drug offense' means an offense that is punishable by ...