# O'NEAL v. KRUEGER

> District Court, S.D. Indiana · July 22, 2020

URL: https://www.frixlaw.com/law-library/cases/10166661

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** July 22, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10166661

## How later opinions describe it (automated extraction)

- recognizing that Mathis “fits the bill” of the second Davenport requirement because it “injected much-needed clarity and direction into the law under the Armed Career Criminal Act”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

RALPH T. O'NEAL, III, )
)
Petitioner, )
)
v. ) No. 2:18-cv-00306-JPH-MJD
)
KRUEGER, )
)
Respondent. )

Order Denying Motion for Judicial Notice and to File Instanter, Denying Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241, and Directing Entry of Final Judgment

Petitioner Ralph T. O’Neal III, a federal inmate currently housed at the Federal
Correctional Institution, located in Fairton, New Jersey, seeks a writ of habeas corpus pursuant to
28 U.S.C. § 2241.1 He argues that he is entitled to relief under: (1) Dorsey v. United States, 567
U.S. 260 (2012)2 and the Fair Sentencing Act, which entitles him to an amended sentence; and
(2) Mathis v. United States, 136 S. Ct. 2243 (2016),3 because he does not have the necessary
predicate convictions for a life sentence under 24 U.S.C. § 841(b)(1). For the reasons explained
below, his petition is denied.

1 Mr. O’Neal was incarcerated at the Federal Correctional Institution located in Terre Haute,
Indiana, when he filed his petition. See dkt. 1. He was subsequently transferred to the Federal
Correctional Institution in Fairton, New Jersey. See dkt. 33.
2 In Dorsey, the United States Supreme Court held that the statutory minimums in the Fair
Sentencing Act (FSA) only “apply to defendants sentenced after the statute’s effective date of
August 3, 2010, even if their offense conduct occurred prior to August 3, 2010.” United States v.
Foster, 701 F.3d 1142, 1156 (7th Cir. 2012).
3 In Mathis, the United States Supreme Court “narrowed the range of state statutes that qualify as
violent felony predicates under the Armed Career Criminal Act.” Chazen v. Marske, 938 F.3d 851,
855 (7th Cir. 2019).
I. Motion for Judicial Notice and to File Instanter
On October 7, 2019, Mr. O’Neal filed a motion for judicial notice and to file instanter. Dkt.
38. In his motion, he asks the Court to take judicial notice of Chazen v. Marske, 938 F.3d 851 (7th
Cir. 2019), and asserts additional arguments in support of his § 2241 petition. This motion, dkt.

[38], is denied.
To the extent Mr. O’Neal asks the Court to take judicial notice of a case decided by the
Seventh Circuit, no such motion is necessary. Insofar as Mr. O’Neal uses his motion to assert
further arguments in support of his § 2241 petition, the motion is improper. Mr. O’Neal had an
opportunity to reply to the respondent’s supplemental response and did so. Dkt. 37. This motion
was filed almost four months after his deadline to file a reply, and Mr. O’Neal did not seek leave
to file a supplemental reply or argue that special circumstances justified allowing him to present
further argument.
II. Factual and Procedural Background
In 2009, Mr. O’Neal was convicted by a jury in the Eastern District of Tennessee of one

count of conspiring to distribute, and possessing with intent to distribute, at least five kilograms of
cocaine hydrochloride and 50 grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(C) and 846 (Count One); two counts of aiding and abetting the distribution of cocaine
hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2 (Counts Two
and Three); four counts of distributing cocaine hydrochloride within 1,000 feet of a public
elementary school, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 860 (Counts Four, Five,
Six, and Ten); two counts of aiding and abetting in the distribution of five grams or more of cocaine
base within 1,000 feet of a school, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 860 and 18
U.S.C. § 2 (Count Seven and Nine); one count of aiding and abetting in the distribution of 50
grams or more of cocaine base within 1,000 feet of a school, in violation of 21 U.S.C. §§ 841(a)(1),
860 and 18 U.S.C. § 2 (Count Eight); and one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g) (Count Eleven). United States v. O’Neal et al., No. 3:08-cr-00107-
PLR-MCLC-1 (E.D. Tenn.) (“Crim. Dkt.”), Crim. Dkt. 346.

The United States also filed an information under 21 U.S.C. § 851, listing two prior felony
drug offenses: a 1996 Tennessee felony conviction for possession of cocaine, and a 2007 Texas
felony conviction for possession of cocaine greater than 400 grams. Crim. Dkt. 105; see also Crim.
Dkt. 26 (PSR) ¶¶ 68, 72, 112. Based on those two offenses, Mr. O’Neal’s mandatory minimum
sentence was life imprisonment. 21 U.S.C. § 841(b)(1)(A). Mr. O’Neal was sentenced to life
imprisonment on Counts One and Eight. Crim. Dkt. 468. The sentences for the remaining
convictions were ordered to run concurrent to the mandatory life sentence.
Mr. O’Neal’s convictions and sentences were affirmed on appeal. United States v. Currier,
et al., 473 F. App’x 469 (6th Cir. 2012). Mr. O’Neal petitioned the Supreme Court for certiorari,
and that was denied. See O’Neal v. United States, 568 U.S. 924 (2012).

In 2013, Mr. O’Neal filed a motion to vacate his conviction and sentence under 28 U.S.C.
§ 2255, arguing, among other things, that his appellate attorney was ineffective for not raising an
argument under the Fair Sentencing Act and Dorsey. He supplemented his § 2255 motion with a
claim under Johnson v. United States, 135 S. Ct. 2551 (2015), arguing that his felon in possession
sentence was improperly enhanced under U.S.S.G. § 2K2.1(a)(2). The district court denied the
§ 2255 motion, finding in part that Mr. O’Neal’s Dorsey claim was untimely under § 2255(f)(3).
Crim. Dkt. 624 at 13. The Sixth Circuit declined to issue a certificate of appealability. Crim. Dkt.
641.
Mr. O’Neal sought permission to file a second or successive § 2255 motion in 2017, but
the Sixth Circuit denied his application. Crim. Dkt. 645.
To date, Mr. O’Neal’s direct appeal and collateral attacks have been unsuccessful. Now
before the Court is Mr. O’Neal’s petition for a writ of habeas corpus under § 2241 challenging his

sentence.
III. Availability of Relief Under Section 2241
A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal
prisoner can challenge his conviction or sentence. See Shepherd v. Krueger, 911 F.3d 861, 862
(7th Cir. 2018); Webster v. Daniels, 784 F.3d 1123, 1124 (7th Cir. 2015). Under very limited
circumstances, however, a prisoner may employ § 2241 to challenge his federal conviction or
sentence. Webster, 784 F.3d at 1124. Specifically, under § 2255(e), a federal prisoner may seek
relief under § 2241 only if it “appears that the remedy by motion [under § 2255] is inadequate or
ineffective to test the legality of [the] detention.” 28 U.S.C. § 2255(e); Roundtree v. Krueger, 910
F.3d 312, 313 (7th Cir. 2018).

The Seventh Circuit has held that § 2255 is “‘inadequate or ineffective’ when it cannot be
used to address novel developments in either statutory or constitutional law, whether those
developments concern the conviction or the sentence.” Roundtree, 910 F.3d at 313 (citing e.g., In
re Davenport, 147 F.3d 605 (7th Cir. 1998); Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013);
Webster v. Daniels, 784 F.3d 1123 (7th Cir. 2015) (en banc)). Whether § 2255 is inadequate or
ineffective “focus[es] on procedures rather than outcomes.” Taylor v. Gilkey, 314 F.3d 832, 835
(7th Cir. 2002).
The Seventh Circuit construed § 2255(e), referred to as “the savings clause,” in In re
Davenport, holding:
A procedure for postconviction relief can be fairly termed inadequate when it is so
configured as to deny a convicted defendant any opportunity for judicial
rectification of so fundamental a defect in his conviction as having been imprisoned
for a nonexistent offense.

In re Davenport, 147 F.3d at 611. “[S]omething more than a lack of success with a section 2255
motion must exist before the savings clause is satisfied.” Webster, 784 F.3d at 1136.
Specifically, to fit within the savings clause following Davenport, a petitioner must meet
three conditions: “(1) the petitioner must rely on a case of statutory interpretation (because
invoking such a case cannot secure authorization for a second § 2255 motion); (2) the new rule
must be previously unavailable and apply retroactively; and (3) the error asserted must be grave
enough to be deemed a miscarriage of justice, such as the conviction of an innocent defendant.”
Davis v. Cross, 863 F.3d 962, 964 (7th Cir. 2017); Brown, 719 F.3d at 586; see also Roundtree,
910 F.3d at 313 (acknowledging circuit split regarding Davenport conditions and holding that
relitigation under § 2241 of a contention that was resolved in a proceeding under § 2255 is
prohibited unless the law changed after the initial collateral review). If a petitioner cannot meet all
three conditions, he is not entitled to proceed under § 2241. See, e.g., Davis, 863 F.3d at 964-65
(affirming denial of relief under § 2241 because petitioner could not establish third Davenport
requirement).
The respondent recognizes that there is no binding precedent on the issue of choice of law,
that is, whether to apply the law of the circuit of conviction or the law of the circuit of confinement
to address the merits of Mr. O’Neal’s claims. See dkt. 36 at 9-10. The respondent does not
otherwise dispute, however, that the Davenport requirements are applicable in determining
whether Mr. O’Neal may proceed under the savings clause. Accordingly, the Court first addresses
whether Mr. O’Neal’s claims satisfy each of the three Davenport requirements to invoke the
savings clause.
A. Dorsey Claim
A petitioner cannot assert a claim under § 2241 if he could have, or did, use § 2255 to raise
the same claim. Roundtree, 910 F.3d at 313 (refusing to address claim that petitioner asserted in
§ 2255 motion); see also Morales v. Bezy, 499 F.3d 668, 672 (7th Cir. 2007) (“A prisoner cannot

be permitted to lever his way into section 2241 by making his section 2255 remedy
inadequate . . . .” (emphasis in original)).
In his initial § 2255 motion, Mr. O’Neal presented a claim under Dorsey. Crim. Dkt. 624
at 13. The district court denied his claim, finding that it was untimely. Id. Because Mr. O’Neal
asserted his Dorsey claim in his § 2255 motion, he cannot take another bite at the post-conviction
apple on this claim through the savings clause. The Court will not address Mr. O’Neal’s Dorsey
claim on the merits.
B. Mathis Claim
Mr. O’Neal’s Mathis claim meets the first two requirements under the savings clause to
bring a § 2241 claim. First, Mathis is a case of statutory interpretation. Dawkins v. United States,

829 F.3d 549, 551 (7th Cir. 2016) (because Mathis “is a case of statutory interpretation,” claims
based on Mathis “must be brought, if at all, in a petition under 28 U.S.C. § 2241”). Second, in the
absence of any objection from the respondent, Mr. O’Neal also meets the second requirement
because Mathis is retroactive. Chazen v. Markse, 938 F.3d 851, 861-62 (7th Cir. 2019)
(recognizing that Mathis “fits the bill” of the second Davenport requirement because it “injected
much-needed clarity and direction into the law under the Armed Career Criminal Act”); Holt v.
United States, 843 F.3d 720, 721-22 (7th Cir. 2016) (“[S]ubstantive decisions such as Mathis
presumptively apply retroactively on collateral review.”). The sole issue then is whether Mr.
O’Neal’s petition satisfies the third requirement for relief under § 2241 – that the error is grave
enough to be a miscarriage of justice.
Mr. O’Neal’s petition also satisfies the third procedural requirement for relief under § 2241.
If one or both of Mr. O’Neal’s prior two state convictions do not qualify as a “felony drug offense,”

then Mr. O’Neal is actually innocent of the statutory mandatory minimum sentence of life
imprisonment set forth in 21 U.S.C. § 841(b)(1)(A). Thus, the Court will address the merits of Mr.
O’Neal’s Mathis claim.
IV. Discussion
Mr. O’Neal argues that there has been a miscarriage of justice because he was wrongfully
subject to a statutory mandatory life sentence under 21 U.S.C. § 841. Specifically, he argues that
his prior Tennessee and Texas drug convictions are not predicate felony drug offenses under 21
U.S.C. § 841(b)(1)(A). See dkt. 12 at 11-16; dkt. 30 at 9-11. He further asserts that the Texas drug
conviction is no longer a predicate because the offense was dismissed and discharged. Dkt. 12 at
17.

A. Applicable Law
The Seventh Circuit has not decided whether the law of the circuit of conviction or the law
of the circuit of confinement applies to a § 2241 petition. The choice of law greatly impacts the
outcome of this case. If Sixth Circuit law applies, Mr. O’Neal is not entitled to relief because the
Sixth Circuit does not apply Mathis to sentence enhancements imposed under § 841(b)(1).
Tennison v. Terris, No. 18-1934, 2019 WL 3941164, *1 (6th Cir. April 30, 2019) ("But Mathis has
no bearing on his case because 'this court does not employ a categorical approach to determining
whether a prior conviction constitutes a felony drug offense for purposes of section 841(b)(1).'"
(quoting United States v. Soto, 8 F. App'x 535, 541 (6th Cir. 2001)); see also Romo v. Ormond,
No. 17-6137, 2018 WL 4710046, *2 (6th Cir. Sept. 13, 2018); Smith v. Ormond, No. 18-5101,
2018 WL 7143637, *2 (6th Cir. July 30, 2018).
In contrast, if Seventh Circuit law applies, the Court must employ the categorical approach
set forth in Mathis to analyze whether either of Mr. O’Neal’s prior drug convictions qualify as a

“felony drug offense” under § 841(b)(1)(A) and 21 U.S.C. § 802(44). See United States v. Elder,
900 F.3d 491, 499-501 (7th Cir. 2018). As set forth in the Court’s Order dated April 17, 2019, dkt.
32, it appears that Mr. O’Neal’s 2007 Texas felony drug conviction cannot serve as a predicate
offense when a modified categorical approach is applied.4
District courts confronting the choice of law issue have concluded that the law of the circuit
of conviction applies. In line with these decisions and the reasons set forth in Judge Barrett’s
concurrence in Chazen, 938 F.3d at 863-66, the Court concludes that the law of the circuit of the
conviction applies in this case. This approach will promote consistency within Mr. O'Neal's
challenges to his conviction and sentence and avoid inter-circuit conflict on matters within the
same case. The transient nature of a § 2241 petitioner’s incarceration is another reason to apply

the substantive law of the court of conviction rather than the court of incarceration. Mr. O’Neal
was convicted in a district court within the Sixth Circuit, originally designated to a BOP facility
within the Seventh Circuit and later transferred to another BOP facility within yet another federal
judicial circuit. It would not be prudent to apply the substantive law of the court of incarceration
under such circumstances.

4 The modified categorical approach is a type of categorical approach that applies "when a statute
is divisible, meaning it sets out one or more elements of the offense in the alternative." Elder, 900
F.3d at 502. Because the statute underlying Mr. O'Neal's 2007 Texas felony drug conviction, Texas
Health & Safety Code Ann. § 481.115, is divisible, the Court applies a modified categorical
approach. If the statute "sets out a single (or 'indivisible') set of elements to define a single crime,"
the categorical approach applies. See Mathis, 136 S. Ct. at 2248.
B. Predicate Felony Drug Offense Under 21 U.S.C. § 841(b)(1)(A)
Mr. O’Neal was sentenced to a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A).
When Mr. O’Neal was sentenced on June 9, 2011, the applicable version of § 841 provided in
relevant part that, “[i]f any person commits [a violation of this section] after two or more prior

convictions for a felony drug offense have become final, such person shall be sentenced to a
mandatory term of life imprisonment.” 21 U.S.C. § 841(b)(1)(A) (2009). The term “felony drug
offense” in 21 U.S.C. § 841(b)(1) is defined exclusively by 21 U.S.C. § 802(44). Burgess v. United
States, 553 U.S. 124, 130 (2008); see also United States v. Graham, 622 F.3d 445, 456 (6th Cir.
2010). It is defined as a prior state or federal offense that (1) “prohibits or restricts conduct relating
to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances” and (2) is
punishable by more than one year in prison. 21 U.S.C. § 802(44).
When determining whether a prior conviction constitutes a “felony drug offense” under
§ 802(44), the Sixth Circuit does not engage in a detailed comparison of the elements. Rather, the
Sixth Circuit looks at the offense generally. See United States v. Grayson, 731 F.3d 605, 606-08

(6th Cir. 2013); United States v. Soto, 8 F. App’x 535, 540-41 (6th Cir. 2001); see also Hernandez
v. Ormond, No. 17-81-DLB, 2017 WL 4124176, *3 (E.D. Ky. Sept. 18, 2017) (“To qualify as a
‘felony drug offense,’ no detailed comparison of elements is required.”).
1. Tennessee Possession of Cocaine
In 1996, Mr. O’Neal was convicted of possession of over .5 grams of cocaine,5 a class B
felony, in violation of Tenn. Code Ann. § 39-17-417(c)(1) and sentenced to eight years in a

5 The Court notes that the Amended Judgment (Crim. Dkt. 105-1) reflects that he was convicted
of possession of a controlled substance, but that the Government’s Information (Crim. Dkt. 105)
and the Presentence Investigation Report (Dkt. 26) reflect that he was convicted of possession of
cocaine. In any case, Mr. O’Neal does not dispute that he was convicted for possession of cocaine,
workhouse. Crim. Dkt. 105-1. The statute at issue here, Tenn. Code Ann. § 39-17-417, provides
relevantly:
(a) It is an offense for a defendant to knowingly:
(1) Manufacture a controlled substance;
(2) Deliver a controlled substance;
(3) Sell a controlled substance; or
(4) Possess a controlled substance with intent to manufacture, deliver or
sell such controlled substance.
…

(c) A violation of subsection (a) with respect to:
(1) Cocaine is a Class B felony if the amount involved is point five (.5)
grams or more of any substance containing cocaine and, in addition thereto,
may be fined not more than one hundred thousand dollars ($100,000);

Tenn. Code Ann. § 39-17-417 (1996). The statutory sentence for a Class B felony in Tennessee at
the time of Mr. O’Neal’s conviction was “not less than eight (8) nor more than thirty (30) years.”
Tenn. Code Ann. § 40-35-111(b)(2) (1996).
Section 39-17-417 clearly prohibits conduct “relating to narcotic drugs.” 21 U.S.C.
§ 804(22). The term “narcotic drugs” includes “[c]ocaine, its salts, optical and geometric isomers,
and salts of isomers,” 21 U.S.C. § 802(17)(D), and Mr. O’Neal was convicted of possessing
cocaine. Additionally, section 40-35-111 establishes that a violation of § 39-17-417 is punishable
by more than one year in prison. Consequently, Mr. O’Neal’s Tennessee possession of cocaine
conviction is a predicate “felony drug offense” for purposes of 21 U.S.C. § 841(b)(1)(A). See Stone
v. Butler, No. 17-152-KKC, 2017 WL 5618289, *2 (E.D. Ky. Nov. 20, 2017) ("Courts have
therefore consistently held that a conviction under Tennessee's controlled substances act qualifies
as a valid predicate for an enhancement under 21 U.S.C. § 841(b)(1)(A).").

see dkt. 12 at 11-12 (“Petitioner’s prior convictions for Possession of Cocaine.”), and he did not
object to the Government’s Information.
2. Texas Possession of Cocaine
In 2007, Mr. O’Neal was convicted of possession of over 400 grams of cocaine, a First-
Degree Felony, in violation of Texas Health & Safety Code § 481.115(f) (2007) and sentenced to
ten years of community supervision. Crim. Dkt. 105-2. Texas Health & Safety Code § 481.115

provides relevantly:
(a) Except as authorized by this chapter, a person commits an offense if the person
knowingly or intentionally possesses a controlled substance listed in Penalty Group
1, unless the person obtained the substance directly from or under a valid
prescription or order of a practitioner acting in the course of professional practice.
…

(f) An offense under Subsection (a) is punishable by imprisonment in the
institutional division of the Texas Department of Criminal Justice for life or for a
term of not more than 99 years or less than 10 years, and a fine not to exceed
$ 100,000, if the amount of the controlled substance possessed is, by aggregate
weight, including adulterants or dilutants, 400 grams or more.

Tex. Health & Safety Code Ann. § 481.115 (2007). Penalty Group 1 is defined under Texas Health
& Safety Code § 481.102 and includes cocaine. Tex. Health & Safety Code Ann. § 481.102(3)(D).
Texas Health and Safety Code § 481.115 clearly prohibits conduct “relating to narcotic
drugs.” 21 U.S.C. § 804(22). As noted above, “narcotic drugs” is defined to include “[c]ocaine, its
salts, optical and geometric isomers, and salts of isomers,” 21 U.S.C. § 802(17)(D), and Mr.
O’Neal was convicted of possessing cocaine. Additionally, § 481.115 establishes that a violation
of that section is punishable by more than one year in prison. Tex. Health & Safety Code Ann.
§ 481.115(f). Consequently, Mr. O’Neal’s Texas possession of cocaine conviction is a predicate
“felony drug offense” for purposes of 21 U.S.C. § 841(b)(1)(A). See Hernandez v. Ormond, No.
6:18-cv-0060-GFVT, 2019 WL 123881, *3 (E.D. Ky. Jan. 7, 2019) (concluding that prior
convictions under Texas Health & Safety Code Ann. § 481.115 "qualify as 'felony drug offenses'
under § 802(44) and, accordingly, qualify as predicate offenses for purposes of the sentencing
enhancement provided by § 841(b)(1)(A)").
C. Dismissal of Texas Conviction
Mr. O’Neal also argues that his Texas drug conviction is no longer a predicate because the
offense was dismissed and discharged, in light of Arreola-Castillo v. United States, 889 F.3d 378
(7th Cir. 2018). Dkt. 12 at 17. Mr. O’Neal is mistaken. In Arreola-Castillo, the Seventh Circuit
noted that “an individual may move to reopen a federal sentence based on the state court’s vacatur
of a prior conviction that enhanced the sentence.” /d. at 390 (emphasis added). Mr. O’Neal’s
submission shows that he completed his sentence and thus his community supervision was
terminated. See dkt. 12-1 at 2. His conviction was not, however, vacated, and remains a valid
predicate felony drug offense under 21 U.S.C. § 841(b)(1)(A). He is not entitled to habeas relief
on this basis.
V. Conclusion
Mr. O’Neal’s motion for judicial notice and to file instanter, dkt. [38], is denied.
Additionally, for the reasons set forth above, Mr. O’ Neal cannot obtain relief pursuant to 28 U.S.C.
§ 2241. His petition for a writ of habeas corpus is denied. The dismissal of this action is with
prejudice. Prevatte v. Merlak, No. 865 F.3d 894, 900 (7th Cir. 2017) (“petition should be dismissed
with prejudice under 28 U.S.C. § 2255(e).”). Judgment consistent with this Entry shall now issue.
SO ORDERED.
Date: 7/22/2020

James Patrick Hanlon
United States District Judge
Southern District of Indiana

12

Distribution:
RALPH T. O'NEAL, III
18792-075
FAIRTON - FCI
FAIRTON FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 420
FAIRTON, NJ 08320
Brian L. Reitz
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
brian.reitz@usdoj.gov
James Robert Wood
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
bob.wood@usdoj.gov

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10166661. Public record. Not legal advice.