UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kaniyn Parker

v. Civil No. 17-cv-484-LM Opinion No.

Robert Hazlewood, FCI Berlin Warden

O R D E R

Kaniyn Parker, now an inmate at FCI Petersburg Low in

Virginia, filed this petition for a writ of habeas corpus (doc.

no. 1) under

while incarcerated at FCI Berlin

in New Hampshire. The petition challenges the career offender

sentencing enhancement affecting his federal prison sentence,

imposed by the court in his criminal case in the Southern

District of Florida in 2004, pursuant to § 4B1.1(a) and

§ 4B1.2(b) of the United States Sentencing Guidelines

(“Guidelines”).1 Parker argues that his three prior state court

drug convictions were improperly counted as predicates for that

1U.S.S.G. § 4B1.1(a) provides, in pertinent part, that a defendant is a “career offender” if he or she “has at least two prior felony convictions” of a “controlled substance offense” or a crime of violence. Id. The Guidelines define a “controlled substance offense,” in pertinent part, as the unlawful “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.” Id. § 4B1.2(b). enhancement. Before this court is the respondent’s motion to

dismiss (doc. no. 7), to which Parker objects (doc. no. 8).

Background

At all relevant times, Parker had three state criminal

convictions, in 1993, 1996, and 2003, for drug offenses committed

in Connecticut, in violation of Conn. Gen. Stat. § 21a-277. See

Pet. (Doc. No. 1), at 26-27; see also June 7, 2004 Gov’t Resp. to

Def.’s Obj. to PSR, United States v. Parker, No. 1:03-cr-20859-

PCH-3 (S.D. Fla.) (“Criminal Case”) (ECF No. 105, at 6). Conn.

Gen. Stat. § 21a-277 criminalizes sales and possession with

intent to sell,2 but does not prohibit mere possession of illegal

drugs. See Conn. Gen. Stat. § 21a-277; see also Labrosciano v.

Holder,

(2d Cir. 2013).

Parker asserts that he entered Alford pleas in each of his

Connecticut state drug cases. See North Carolina v. Alford,

, 37–38 (1970) (permitting courts to accept guilty pleas

where defendant admits that there is a factual basis for plea,

2The pertinent Connecticut statute provides:

No person may manufacture, distribute, sell, prescribe, dispense, compound, transport with the intent to sell or dispense, possess with the intent to sell or dispense, offer, give or administer to another person . . . any controlled substance . . . .

Conn. Gen. Stat. §§ 21a-277(a)(1) & (b)(1).

2 but does not admit guilt). The most recent of those convictions,

which resulted from a January 2003 nolo contendere plea, became

final upon the conclusion of Parker’s direct appeal of that

conviction in 2004. See State v. Parker, No. AC 24195 (Conn.

App. Ct. Aug. 31, 2004) (“State Appeal”).

In February 2004, in his federal criminal case in the

Southern District of Florida, Parker pleaded guilty to one count

of conspiracy to import five or more kilograms of cocaine,

relating to conduct occurring in May 2003, in violation of

,

(a), and

(b)(1)(B).

See Change of Plea, Criminal Case (ECF No. 49, at 6). Parker

faced a statutory mandatory minimum sentence of ten years with

the possibility of life imprisonment. See

(b)(1)(B).

The Presentence Investigation Report (“PSR”) prepared in

Parker’s federal criminal case recommended sentencing Parker as a

“career offender” under the Guidelines because of his three

Connecticut felony drug convictions. Parker objected to counting

two of his Connecticut convictions as controlled substance

offenses because he argued that the evidence in the state cases

established only that he “possess[ed]” cocaine or marijuana, and

he further requested that the federal court grant him a “role”

adjustment and a “horizontal” departure (lowering his criminal

3 history category) for sentencing purposes, based on an argument

that his criminal history was over-stated. See Pet. (Doc. No.

1), at 17. Considering the parts of the state record cited in

the PSR,3 the court found that all three of Parker’s state

convictions were properly counted as “controlled substance

offense” convictions for purposes of applying the Guidelines

career offender enhancement, which required only two such

convictions. See June 7, 2004 Sent’g Hr’g Tr., Ex. 2 to June 3,

2005 Gov’t Resp. to Pet., Parker v. United States, No. 1:05-cv-

20844-PCH (S.D. Fla.) (“First 2255 Motion”) (ECF No. 9, at 49).

The career offender designation caused Parker’s Guidelines

offense level to jump from 32 to 37 and set his criminal history

category at VI. See Pet. (Doc. No. 1), at 17; June 7, 2004 Gov’t

Resp. to Def.’s Obj. to PSR, Criminal Case (ECF No. 105, at 6,

7). A three-level reduction for acceptance of responsibility

lowered Parker’s total offense level to 34, which yielded a

Guidelines range of 262 to 328 months. See Pet. (Doc. No. 1), at

17. The court then sentenced Parker to 262 months in prison, the

bottom of that range, finding that although it was “unfortunate,”

3Thiscourt lacks access to the PSR and to the specific parts of the state record cited in the PSR upon which the federal court relied in sentencing Parker as a career offender, and for that reason this court cannot be certain which parts of the state record were summarized in the PSR and cited by that court when it sentenced Parker as a career offender.

4 “pretty stiff,” and “more than sufficient” to punish him for his

past criminal activity, it would “serve[] as a deterrent for any

future activity.”4 June 7, 2004 Sent’g Hr’g Tr., Ex. 2 to June

3, 2005 Gov’t Resp., First 2255 Motion (ECF No. 9, at 51-52); see

also June 8, 2004 Judgment, Criminal Case (ECF No. 110). Parker

did not appeal his conviction or sentence, which became final

before the Supreme Court made the Guidelines advisory in January

2005 in United States v. Booker,

(2005).

Parker filed a timely motion under

in March

2005, claiming ineffective assistance of counsel and challenging

his career offender designation as unsupported by evidence that

he had committed any drug crimes other than simple possession.

See Pet., First 2255 Motion (ECF No. 1), at 12, 13. That § 2255

motion was dismissed in November 2005. See Nov. 16, 2005 Order,

id. (ECF No. 26). Parker unsuccessfully moved for relief from

that judgment. See June 24, 2010 Mot., id. (ECF No. 66);

see also Aug. 4, 2010 Order, id. (ECF No. 73).

Parker then filed another § 2255 motion in the Southern

District of Florida. See Oct. 9, 2013 Mot., Parker v. United

States, No. 13-cv-23635-PCH (S.D. Fla.) (ECF No. 1); Mar. 21,

4The record before this court suggests that without the career offender enhancement, Parker’s Guidelines sentence range could have been about seven to ten years shorter, assuming a Criminal History Category V and an offense level of 29.

5 2014 Am. Mot., id. (ECF No. 18, at 15). The magistrate judge

screening that filing concluded that, based on Eleventh Circuit

precedent, Parker’s claim of being innocent of the Guidelines

career offender enhancement did not allow him to avoid the

restriction on unauthorized successive § 2255 motions. See Apr.

14, 2014 R&R, id. (ECF No. 20). The district judge approved the

magistrate judge’s recommendation to dismiss Parker’s petition

for lack of jurisdiction as an unauthorized successive § 2255

motion. See May 16, 2014 Order, id. (ECF No. 22). The Eleventh

Circuit denied Parker’s application for leave to file a

successive § 2255 motion in June 2014. See In re Parker, No. 14-

12489-A (11th Cir. June 30, 2014).

In the instant § 2241 petition, Parker argues that none of

his prior convictions were career offender predicates. He

asserts that the 2003 Connecticut conviction should not have

counted because it was pending on appeal in the Connecticut state

courts at the time of his federal sentencing (hereinafter “Claim

1”). Parker also maintains his “actual innocence” of Connecticut

crimes other than drug possession and cites Mathis v. United

States,

(2016), in connection with that claim

(hereinafter “Claim 2”).

6 Discussion

I. Savings Clause Jurisdiction

Pursuant to

, the trial court generally has

exclusive jurisdiction over a petitioner’s post-conviction

motions challenging the validity of his conviction or sentence.

Section 2255(e), known as the “savings clause,” preserves a

limited role for the court in the district where a federal inmate

is in prison to consider a § 2241 petition challenging the

validity of his incarceration. See United States v. Barrett,

(1st Cir. 1999). The savings clause provides, in

pertinent part:

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to [§ 2255], shall not be entertained . . . unless it . . . appears that the remedy by motion [under § 2255] is inadequate or ineffective to test the legality of his detention.

(e) (emphasis added). Parker, an FCI Berlin

inmate at the time his § 2241 petition was filed, seeks to invoke

this court’s “savings clause” jurisdiction under § 2255(e).

While the First Circuit has not provided examples of all

circumstances where savings clause jurisdiction might arise,5 the

5In Sustache-Rivera v. United States,

, 16 & n.14 (1st Cir. 2000), the court noted that savings clause jurisdiction has been found in cases where petitioners have asserted statutory interpretation claims based on new Supreme Court precedent, previously unavailable to them, that changed the law in the circuit and narrowed the scope of a criminal statute in a manner

7 court has clarified that Section 2255’s “adequacy and

effectiveness must be judged ex ante.” Trenkler v. United

States,

(1st Cir. 2008). “[P]ost-conviction

relief can be termed ‘inadequate’ or ‘ineffective’” for purposes

of invoking the savings clause “only when, in a particular case,

the configuration of section 2255 is such ‘as to deny a convicted

defendant any opportunity for judicial rectification.’”

(citation omitted). The Trenkler court further observed that

courts have allowed access to the savings clause in only “rare

and exceptional circumstances, such as those in which strict

adherence” to the statutory limits on access to relief under

section 2255 “would result in a ‘complete miscarriage of

justice.’”

(citation omitted). This court’s inquiry into

whether it has savings clause jurisdiction thus addresses whether

“the configuration of section 2255” has effectively denied Parker

any opportunity for judicial review of his claims, and whether

that would have rendered them not guilty of the offense of which they were convicted. See

(citing cases). But see McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc.,

(11th Cir.) (en banc) (savings clause jurisdiction unavailable despite adverse circuit precedent that has changed after first 2255 motion, as petitioner “could have tested the legality of his detention by requesting that we reconsider our precedent en banc or by petitioning the Supreme Court for a writ of certiorari”), cert. denied,

(2017); Prost v. Anderson,

(10th Cir. 2011) (intervening changes in statutory interpretation cannot render § 2255 inadequate or ineffective)).

8 manifest injustice has resulted, warranting relief under the

savings clause. Id.

II. Claim 1 -- Timing of Direct Appeal of 2003 Conviction

Parker’s first claim is that his 2003 conviction did not

qualify as a “prior conviction,” as his direct appeal of that

conviction was pending at the time of his sentencing in the

federal case. Parker’s counsel unsuccessfully argued a related

claim at Parker’s federal sentencing hearing: that the court

should not count the 2003 conviction as a career offender

predicate because it could be reversed on appeal. See June 7,

2004 Sent’g Hr’g Tr., Ex. 2 to June 3, 2005 Gov’t’s Resp. to

Pet., First 2255 Motion (ECF No. 9, at 49)

Parker has not pointed to any change in the law in his

favor, or anything in the operation of § 2255 that has changed

since the date he was sentenced, which might show that he could

not raise the issue of the timing of his state appeal at an

earlier stage of the case. In fact, Parker cites cases predating

his federal conviction in support of Claim 1. See, e.g., Pet.

(Doc. No. 1) at 28 (citing, inter alia, United States v. Lippner,

(11th Cir. 1982)). The configuration of

section 2255 does not appear to have denied Parker an opportunity

to seek review of that claim in his direct appeal or initial

9 section 2255 motion. Furthermore, the state conviction at issue

was ultimately affirmed, see State Appeal, undermining a claim of

a miscarriage of justice based on the timing of that appeal.

This court thus lacks savings clause jurisdiction over Claim 1.

III. Claim 2

Parker next argues, citing Mathis, that the career offender

enhancement was misapplied in his case, as, he contends, the

facts underlying his state court convictions did not amount to

evidence that he intended to sell drugs. In other words, he

claims to be innocent of being a career offender, as simple

possession does not fit the Guidelines definition of a

“controlled substance offense.”

A. Actual Innocence

While the First Circuit has not addressed the question of

whether savings clause jurisdiction could arise from an actual

innocence claim challenging an enhanced sentence that is below

the statutory maximum, the First Circuit has discussed what would

have to be established to litigate such a claim in an initial

section 2255 motion, if a claim of actual innocence could be

deemed sufficient to waive a procedural default: “‘[A]ctual

innocence’” in such circumstances would apply “‘in the context of

10 habitual offender provisions only where the challenge to

eligibility stems from factual innocence of the predicate crimes,

and not from the legal classification of the predicate crimes.’”

Damon v. United States,

(1st Cir. 2013) (citation

omitted). “To establish actual innocence, petitioner must

demonstrate that, in light of all the evidence, it is more likely

than not that no reasonable juror would have convicted him.”

Bousley v. United States,

(1998) (citation and

internal quotation marks omitted).

Parker’s actual innocence claim focuses exclusively on one

of his three convictions, in arguing that the evidence relating

to his 1996 plea did not amount to “concrete evidence” that he

was selling drugs. Pet. (Doc. No. 1), at 36. As Parker must

impugn at least two of his three prior convictions to present a

colorable actual innocence claim, his exclusive focus on his 1996

plea misses that mark. And contrary to a premise of Parker’s

argument regarding “concrete evidence,” an individual’s intent to

sell drugs is a matter susceptible of proof by circumstantial

evidence in Connecticut, see State v. Clemons,

,

(1975).6 Because Parker has not made a

6Parker does not dispute the facts drawn from the state record, cited in his federal criminal case, which could support a reasonable inference that his 1993, 1996, and 2003 pleas were career offender predicates. See, e.g., June 8, 2004 Gov’t Resp. to Def’s Obj. to PSR, Criminal Case (ECF No. 105), at 6

11 colorable claim of actual innocence as to at least two of his

three drug-trafficking convictions, his actual innocence claim

fails to provide a foundation for an exercise of savings clause

jurisdiction.

B. Mandatory Guidelines Issue

Liberally construed, Claim 2 in Parker’s petition asserts

that, under Mathis, the sentencing court erred in failing to

restrict its examination of his prior convictions to an

examination of the elements of Conn. Gen. Stat. § 21a-277, when

it found Parker to be a career offender under the Guidelines.

See Pet. (Doc. No. 1) at 26. The merits of Parker’s Mathis claim

have not been briefed and do not appear straightforward.7

(“defendant does not contest that his 1993 conviction for sale of a hallucinogen/narcotic clearly qualifies as a conviction to be counted in a career offender analysis”); June 7, 2004 Sent’g Hr’g Tr., Ex. 2 to June 3, 2005 Gov’t Resp. to Pet., First 2255 Motion (ECF No. 9, at 49) (remaining two convictions counted as career offender predicates, as 1996 conviction for “sale of controlled substance” involved evidence that there were thirteen baggies of crack cocaine and about $800 in Parker’s car; and 2003 conviction arose from evidence that there were seventeen dime bags of cocaine and two baggies of marijuana in his car); see also State v. Parker, No. AC 24195 (Conn. App. Ct. Aug. 31, 2004) (2003 conviction arose from Parker’s plea of nolo contendre to “possession of a controlled substance with the intent to sell” in violation of Conn. Gen. Stat. § 21a-277).

7Conn. Gen. Stat. § 21a-277 includes a list of prohibited acts that do not categorically match the definition of a controlled substance offense under the Guidelines. See United States v. Savage,

, 964–65 (2d Cir. 2008). Section

12 This court need not issue an order on the merits of that

claim unless it has savings clause jurisdiction; and respondent

argues that, following Mata v. Warden, No. 17-cv-92-JL,

(D.N.H. Jan. 29, 2018) (ECF No. 9), R&R

approved

(D.N.H. Feb. 26, 2018) (ECF

No. 10), this court should dismiss Parker’s Mathis claim for lack

of jurisdiction. The respondent’s reliance on that case,

however, is misplaced, as Mata involved a challenge to an

advisory, post-Booker Guidelines sentence. There is some

authority from other jurisdictions suggesting that this court

could exercise savings clause jurisdiction in a case like

Parker’s where the Mathis claim challenges the misapplication of

21a-277’s list has been alternately characterized as a list of separate elements or as a list of separate means. See United States v. Epps,

(D. Conn. 2018) (recognizing issue to be close question, but holding that list of prohibited acts under § 21a-277 is indivisible list of means). But see Hancock v. United States, No. 3:14-CV-1751 (VAB),

, at *14,

, at *36-*37 (D. Conn. Feb. 1, 2019) (§ 21a-277 is divisible); United States v. Washington, No. 3:14CV114 EBB,

, at *5,

, at *16 (D. Conn. May 23, 2014) (§ 21a-277(b) is divisible). Cf. State v. Smart,

, 367–68,

(1995) (finding no double jeopardy violation where defendant was convicted of “sale” and “possession . . . with intent to sell” the same drug, under Conn. Gen. Stat. § 21a- 278). The court in Parker’s sentencing hearing appears to have made a finding that Parker sold drugs in violation of that statute, which in turn implicates the definition of “sale” under Conn. Gen. Stat. § 21a-240(50), a definition covering acts including “a mere offer to sell,” which is not a Guidelines career offender predicate. See Savage, 542 F.3d at 964–65.

13 a Guidelines sentence imposed while the Guidelines were

mandatory.8 It also appears that, if not for the career offender

sentence enhancement, Parker would have been sentenced within a

Guidelines range that might well have resulted in his release by

now. It is thus possible that Parker’s Mathis claim could be the

type of claim challenging a sentence presenting a manifest

injustice over which this court may exercise savings clause

jurisdiction. But lacking access to the PSR, pertinent parts of

the state record, or any briefing as to the implications of Hill,

836 F.3d at 595; Brown, 719 F.3d at 588; Prost v. Anderson,

(10th Cir. 2011) (adverse precedent does not make

filing of first section 2255 motion “inadequate or ineffective”);

8See Hill v. Masters,

(6th Cir. 2016) (savings clause may provide jurisdiction for claims asserted by “(1) prisoners who were sentenced under the mandatory guidelines regime . . . (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”); Brown v. Caraway,

(7th Cir. 2013) (petitioners sentenced in pre-Booker era may use the savings clause to challenge misapplication of career offender Guidelines). But see Bradford v. Tamez (In re Bradford),

(5th Cir. 2011) (“a claim of actual innocence of a career offender enhancement is not a claim of actual innocence of the crime of conviction and, thus, not the type of claim that warrants review under § 2241”); Gilbert v. United States,

(11th Cir. 2011) (en banc) (same, but leaving open whether such claims could be brought where the error in sentencing resulted in detention exceeding statutory maximum).

14 and McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc.,

(11th Cir.) (en banc) (same), cert. denied,

(2017), this court denies the motion to dismiss that Mathis

claim without prejudice, anticipating that it could issue a

better-informed decision upon a fuller record.

The court appoints counsel for Parker under the Criminal

Justice Act (“CJA”), 18 U.S.C. § 3006A, and takes the

jurisdictional issue and merits of the Mathis claim under

advisement, pending further briefing from both parties, upon the

schedule set forth below.

Conclusion

For the foregoing reasons, the court directs as follows:

1. The court dismisses Claim 1, based on the timing of

Parker’s direct appeal of his 2003 state conviction, for lack of

savings clause jurisdiction.

2. The court denies without prejudice the Warden’s motion

to dismiss (doc. no. 7) the Mathis claim (Claim 2).

3. The court appoints counsel for Parker under the CJA and

directs the clerk’s office to take the steps necessary to effect

that appointment. The court denies Parker’s request (doc. no. 9)

for an update on the status of his petition, as this Order

provides the requested update.

15 4. The court directs the government, within sixty days of

the date of this Order, either to file a motion requesting an

evidentiary hearing, or a motion: (1) briefing, specifically, in

light of Hill and Brown and other authorities cited in this

Order, whether there may be savings clause jurisdiction over

Parker’s Mathis claims; (2) briefing the merits of Parker’s

Mathis claims; and, (3) addressing, in the event this court

determines that the Mathis claim warrants relief, those issues

highlighted in Hill v. Sepanek, No. CV 14-85-ART,

,

at *9,

, at *27-*28 (E.D. Ky. Jan. 6,

2017), relating to whether this court may order the government to

release the petitioner, or whether his case should be transferred

for resentencing.

5. Petitioner is granted thirty days from the date that

motion is filed to file an objection or other response.

SO ORDERED.

_______________________________ Landya B. McCafferty United States District Judge

March 19, 2019

cc: Kaniyn Parker, pro se Seth R. Aframe, Esq.

16