Gholson v. Terris

          OPINION AND ORDER DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS

          BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE.

         Petitioner, who is currently confined at the Federal Correctional Institution in Milan, Michigan, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241. Petitioner seeks relief from his federal criminal sentence imposed by the United States District Court for the Eastern District of Missouri. For the reasons explained below, petitioner's challenge is not properly filed under § 2241. The Court shall therefore dismiss the petition.

         I. Background

         On October 7, 2011, petitioner pled guilty to one count of conspiracy to distribute and possession with the intent to distribute more than five kilograms of cocaine and fifty grams of cocaine base, as well as three counts of distribution of more than five grams of cocaine base. See United States v. Gholson, No. 4:10-cr-618-AGF-3 (E.D. Mo.) [docket entry 559]. On March 5, 2012, petitioner was sentenced as a career offender under § 4B1.1 of the United States Sentencing Guidelines to 204 months' imprisonment, to be followed by five years of supervised release.

         Judge Audrey G. Fleissig of the Eastern District of Missouri recently summarized the background of this case as follows:

On December 3, 2014, in [United States v. Gholson (“Gholson I”), Case No. 4:10-CR-618-AGF-3], counsel filed a motion for retroactive application of amendment 782 of the Guidelines. The probation office filed a report stating that movant was sentenced as a career offender under the Guidelines, and thus not eligible for a reduction in his sentence based on amendment 782. Following the filing of this probation report, defense counsel filed a motion to withdraw his previously filed motion, which the Court granted. See Gholson I, ECF No. 867.

On August 10, 2017, in Gholson I, movant filed another pro se motion for retroactive application of amendment 782 of the Guidelines. See Gholson I, ECF No. 948. The Court denied movant's pro se motion because, again, movant's offense level was determined based on his career offender status under § 4B1.1. See Gholson at ECF No. 951. Additionally, the Court stated that movant's sentence of 204 months' imprisonment resulted from a downward variance below the Guideline range. “This sentence is below the Guideline range under the amended Guidelines. Pursuant to U.S.S.G. § 1B1.10(b)(C)(A), a Court may not reduce a defendant's term of imprisonment to a term that is less than the minimum of the Amended Guideline range.” Id.

On September 25, 2015, movant filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 based on Johnson v. United States, 135 S.Ct. 2551 (2015). The Court opened the instant case, Gholson v. United States, 4:15-CV-1478-AGF (“Gholson II”), and appointed the Federal Public Defender to represent movant. On March 21, 2016, counsel filed an amended motion to vacate under § 2255. Counsel asserted that under Johnson movant did not qualify as a career offender.

Simultaneously, counsel filed a motion to stay Gholson II based on the Supreme Court's pending case Welch v. United States, which presented the question of whether Johnson applied retroactively in a Guidelines context. The Court granted this stay. During the stay of the case pending Welch, counsel file another motion to stay pending the Supreme Court's decision in Beckles v. United States, 137 S.Ct. 886 (2017), which the Court also granted. See ECF No. 19.

On April 13, 2017, after Beckles was decided, movant's counsel filed a motion to voluntarily dismiss without prejudice Gholson II. See ECF No. 23. Movant, himself, filed a signed acknowledgement that he had authorized counsel to file the motion to voluntarily dismiss. See Id. On April 17, 2017, the Court granted movant's motion and dismissed this case without prejudice. ¹

On January 19, 2018, the Eighth Circuit Court of Appeals issued a Judgment in Gholson II, denying movant's petition for authorization to file a successive habeas application in the district court.

¹On June 14, 2018, movant filed another pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. The Court opened another new case, and denied movant's motion as time barred. See Gholson v. United States, Case No. 4:18-CV-970-AGF (E.D. Mo. filed Jun. 14, 2018) (“Gholson III”).

Gholson v. United States, No. 4:15-CV-1478-AGF, 2019 WL 2184962, at *1-2 (E.D. Mo. May 21, 2019) (alteration added).

         On July 30, 2018, petitioner filed a pro se motion in the Eastern District of Missouri to reinstate his amended motion to vacate, set aside, or correct sentence pursuant to § 2255. Petitioner sought “to reopen th[e] case that, on the advice of counsel, [he] voluntarily dismissed under Rule 41(a) after the Supreme Court's decision in Beckles.” Id. at 2. Petitioner stated in the motion that “in light of Johnson, his Sentence violates Due Process of Law. This Court should reinstate The Material that was Requested held in abeyance. This Court should Vacate his erroneous Career Offender Sentence ...