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Kibble v. McConnell

United States District Court, W.D. Louisiana, Alexandria Division

July 19, 2019

MICHAEL WAYNE KIBBLE, Petitioner
v.
CHRIS MCCONNELL, Respondent

          REPORT AND RECOMMENDATION

          JOSEPH H.L. PEREZ MONTES, UNITED STATES MAGISTRATE JUDGE.

         Before the Court is a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 filed by pro se Petitioner Michael Wayne Kibble (“Kibble”) (#11824-041). Kibble is an inmate in the custody of the Federal Bureau of Prisons (“BOP”), incarcerated at the Federal Correctional Institution in Pollock, Louisiana. Kibble challenges the legality of his sentence.

         Because Kibble cannot meet the requirements of the savings clause of 28 U.S.C. § 2255, his Petition (Doc. 1) should be DISMISSED for lack of jurisdiction.

         I. Background

         Kibble pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (No. 15-cr-257, D. Minn.). He was sentenced to the mandatory minimum of 180 months of imprisonment under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). (No. 15-cr-257, D. Minn.; Doc. 41).

         At the time of the offense, Kibble was on supervised release in Minnesota for two federal convictions for “Aiding and Abetting Hobbs Act Robbery” and “Aiding and Abetting the Use of a Firearm in a Crime of Violence.” (No. 15-cr-257, D. Minn.; Doc. 35). According to the Pre-Sentence Report, Kibble's criminal history consisted of eight qualifying predicate ACCA convictions-the two federal convictions in the District of Minnesota, as well as six Minnesota first-degree aggravated robbery convictions. (No. 15-cr-257, D. Minn.; Doc. 35). In the plea agreement, Kibble stipulated that he had at least three prior convictions for a “violent felony, ” as defined by § 924(e)(2)(B), and was subject to an enhanced sentence under § 924(e) as an armed career criminal. (No. 15-cr-257, D. Minn.; Doc. 21, p. 3).

         Relying on Mathis v. United States, 136 S.Ct. 2243 (2016), Johnson v. United States, 135 S.Ct. 2551 (2015), and Sessions v. Dimaya, 138 S.Ct. 1204 (2018), Kibble now argues that his prior state convictions for aggravated robbery are not predicate offenses under the ACCA. (Doc. 1).

         II. Law and Analysis

         Kibble seeks to proceed under the savings clause of § 2255(e), which provides a limited exception to the rule that a § 2241 petition may not be used to challenge the validity of a federal sentence and conviction. See Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000). The savings clause allows a prisoner to rely on § 2241 if the remedy available under § 2255 would be “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). The petitioner bears the burden of affirmatively proving that the § 2255 remedy is inadequate. See McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979).

         To state a claim under the savings clause, a petitioner must show that the claim is based on a retroactively applicable Supreme Court decision that establishes the petitioner may have been convicted of a nonexistent offense, and the claim was foreclosed by circuit law at the time it should have been raised in the petitioner's trial, appeal, or first § 2255 motion. Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).

         Federal law forbids certain people-such as convicted felons, persons committed to mental institutions, and drug users-to ship, possess, and receive firearms. 18 U.S.C. § 922(g). Offenders may be sentenced to a term of imprisonment of up to 10 years. 18 U.S.C. § 924(a)(2). However, if the offender has three or more earlier convictions for a “serious drug offense” or a “violent felony, ” the ACCA increases the prison term to a minimum of 15 years and a maximum of life. 18 U.S.C. § 924(e)(1).

         The ACCA defines “violent felony” as “any crime punishable by imprisonment for a term exceeding one year . . . that- (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” § 924(e)(2)(B); Johnson, 135 S.Ct. at 2555-56.

         Subsection (i) of the ACCA is known either as the “force clause, ” United States v. Lerma, 877 F.3d 628, 630 (5th Cir. 2017), or as the “elements clause, ” United States v. Taylor, 873 F.3d 476, 477 n.1 (5th Cir. 2017). The four offenses listed in subsection (ii) are referred to as the “enumerated offenses, ” see United States v. Davis, 487 F.3d 282, 285 (5th Cir. 2007), or collectively as the “enumerated offenses clause, ” Taylor, 873 F.3d at 477 n.1. The remainder of the subsection is known as the “residual clause.” Johnson, 135 S.Ct. 2555-56.

         In Johnson, the Supreme Court found the residual clause of the ACCA unconstitutionally vague. In Dimaya, the Supreme Court held that the definition of “crime of violence” in the residual clause of 18 U.S.C. § 16, which closely resembled the definition of “violent felony” in the residual clause of the ACCA, was also unconstitutionally vague. Dimaya, 138 S.Ct. at 1210. After Johnson, a crime is a violent felony under ACCA only if it is one of the enumerated ...


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