JOHNSON v. WATSON

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

TYRONE QUENTIN JOHNSON, )

)

Petitioner, )

)

v. ) No. 2:19-cv-00317-JPH-MJD

)

T. J. WATSON, )

)

Respondent. )

Order Granting Motion to Supplement, Denying Writ of Habeas Corpus

Pursuant to 28 U.S.C. § 2241, and Directing Entry of Final Judgment

Petitioner Tyrone Johnson, an inmate currently incarcerated at the Federal Correctional

Institution in Fairton, New Jersey, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241.1

He asserts numerous challenges to his conviction and sentence, including that he is entitled to relief

under Mathis v. United States, 136 S. Ct. 2243 (2016)2, because he does not have the necessary

predicate convictions for an enhanced sentence under 21 U.S.C. § 841(b)(1). For the reasons

explained below, his petition is denied.

I. Motion for Leave to Supplement

In October 2020, Mr. Johnson filed a motion for leave to supplement asking the Court to

consider an opinion from the United States District Court for the Eastern District of Michigan that

1 Mr. Johnson 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 Federal Bureau of Prisons, Find an Inmate,

available at www.bop.gov/inmateloc/ (last visited Jan. 11, 2021).

2 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).

addresses the issues raised in his § 2241 petition. Dkt. 28. This motion, dkt. [28], is granted to the

extent the Court will consider relevant precedent as discussed below.

II. Factual and Procedural Background

In December 2011, a grand jury returned a one-count indictment against Mr. Johnson,

charging him with distributing a mixture or substance containing a detectable amount of heroin in

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). United States v. Johnson, 1:11-cr-20767-

TLL-PTM (E.D. Mich.) ("Crim. Dkt."); dkt. 1. In May 2012, a grand jury returned a superseding

indictment that charged Mr. Johnson with one count of conspiracy to possess with intent to

distribute and to distribute 100 grams or more of a mixture or substance containing heroin in

violation of 21 U.S.C. § 846 ("Count 1"), one count of possession with intent to distribute heroin

in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) ("Count 2"), one count of distribution of

heroin in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) ("Count 3"), one count of using a

communication facility to commit conspiracy to distribute heroin in violation of 21 U.S.C. § 843(b)

("Count 4"), and one count of using a residence to distribute and use controlled substances in

violation of 21 U.S.C. § 856(a)(1) ("Count 5"). Crim. Dkt. 17.

After return of the superseding indictment, the United States filed an information pursuant

to 21 U.S.C. § 851. Crim. Dkt. 18. It stated that Mr. Johnson had the following prior convictions:

a conviction on March 11, 1998 for attempted possession of cocaine, less than 25

grams, in case number 97-9499 in the Recorder's Court (Wayne County Circuit

Court); a November 13, 1998 conviction for delivery/manufacture of less than 50

grams in case number 98-1758-FH in Macomb County Circuit Court; a conviction

on February 24, 2000 for delivery of less than 50 grams of cocaine in case number

99-11195 in Wayne County Circuit Court; and a conviction on December 1, 2008

for possession of methamphetamine in case number 08-011525-01-FH in Wayne

County Circuit Court.

Id.; see also dkt. 8-2 at 2.

Mr. Johnson proceeded to trial, and a jury convicted him of all counts charged in the

superseding indictment. Crim. Dkt. 42; see also dkt. 8-1. With respect to Count 1, the jury found

that the conspiracy involved less than 100 grams of a mixture or substance containing heroin. Dkt.

8-1 at 2.

After Mr. Johnson's conviction at trial, a United States Probation Officer prepared a

presentence investigation report ("PSR") concerning Mr. Johnson. See dkt. 20. The PSR grouped

all of the offenses and determined that Mr. Johnson's adjusted offense level was 24. Dkt. 20 at

¶¶ 15-22. It applied the career offender guideline, United States Sentencing Guidelines

("Sentencing Guidelines") § 4B1.1, and calculated Mr. Johnson's total offense level as 34. Dkt. 20

at ¶¶ 23-25.

The PSR found that Mr. Johnson had several prior felony convictions, including

convictions for: (1) possession of less than 25 grams of cocaine, (2) possession with intent to

deliver under 50 grams of cocaine, (3) delivery of less than 50 grams of a controlled substance, (4)

aggravated domestic assault, and (5) possession of methamphetamine. Dkt. 20 at ¶¶ 26-32.

Whether considering only Mr. Johnson's prior convictions or his status as a career offender

pursuant to Sentencing Guidelines § 4B1.1, his criminal history category was VI. Id. at ¶¶ 34-35.

Based on the § 851 information, Mr. Johnson's statutory maximum sentence for Counts 1

through 3 was 30 years' imprisonment. 21 U.S.C. § 841(b)(1)(C); see also dkt. 20 at ¶ 56. He was

subject to a statutory maximum sentence of 8 years' imprisonment on Count 4 and 20 years'

imprisonment on Count 5. See dkt. 20 at ¶ 56. His guideline range under the Sentencing Guidelines

was 262 to 327 months' imprisonment. Id. at ¶ 57.

In May 2013, Mr. Johnson received an aggregate sentence of 270 months' imprisonment

to be followed by an aggregate six-year term of supervised release. Crim. Dkt. 58. He appealed his

convictions and sentence, Crim. Dkt. 59, and the United States Court of Appeals for the Sixth

Circuit affirmed, United States v. Johnson, 765 F.3d 644 (6th Cir. 2014). Mr. Johnson filed a

motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, Crim. Dkts. 72, 73, but

the district court denied this motion in October 2016, Crim. Dkts. 87, 88.

In November 2017, Mr. Johnson sought leave to file a second or successive motion under

§ 2255, arguing that two of his prior convictions could not be used to enhance his sentence in light

of Mathis v. United States, 136 S. Ct. 2243 (2016). United States v. Johnson, No. 17-2427 (6th

Cir.). The Sixth Circuit denied his request in April 2018, finding that his only argument did "not

rely on [a] new rule of constitutional law made retroactive by the Supreme Court . . . ." Id.; dkt. 1

at 2.

Mr. Johnson filed his § 2241 petition in July 2019. Dkt. 1. In his original petition and

supplement, he challenges the sentencing enhancements applied under 21 U.S.C. § 841(b)(1)(C)

and Sentencing Guidelines § 4B1.1. He also challenges the effectiveness of his trial and appellate

counsel, the procedures related to the § 851 information filed by the United States, and the

sentencing proceedings. Dkts. 1, 8.

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) (en banc). 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, 719 F.3d at 313 (citing 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, "a petitioner must establish that '(1) the claim

relies on a statutory interpretation case, not a constitutional case, and thus could not have been

invoked by a successive § 2255 motion; (2) the petitioner could not have invoked the decision in

his first § 2255 motion and the decision applies retroactively; and (3) the error is grave enough to

be deemed a miscarriage of justice.'"3 Chazen v. Marske, 938 F.3d 851, 856 (7th Cir. 2019)

3 The respondent states that the Department of Justice has adopted a revised view of when relief is

available under § 2241 but recognizes that this argument is foreclosed by precedent in the Seventh

Circuit. See dkt. 19 at 6 n.2.

(quoting Beason v. Marske, 926 F.3d 932, 935 (7th Cir. 2019)); see also Roundtree, 910 F.3d at

313 (acknowledging a circuit split regarding this test 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 v. Cross, 863 F.3d 962, 964-65 (7th Cir. 2017) (affirming

denial of relief under § 2241 because petitioner could not establish third requirement).

The respondent recognizes that it is unclear whether the Court should apply the substantive

law of the Sixth Circuit or the Seventh Circuit to address the merits of Mr. Johnson's claims. See

dkt. 19 at 11. The parties do not dispute, however, that the Seventh Circuit's three-part test is

applicable to determine whether Mr. Johnson may proceed under the savings clause. Accordingly,

this Court first addresses whether Mr. Johnson's claims satisfy each requirement of the three-part

test to invoke the savings clause.

A. Applicability of Sentencing Guidelines § 4B1.1

One of Mr. Johnson's main arguments is that the district court improperly applied the career

offender provision of the Sentencing Guidelines, § 4B1.1, to him. See dkt. 1 at 5-15. The Court

cannot address the merits of this argument, however, because Mr. Johnson has not established the

third Davenport requirement—that any error is grave enough to constitute a "miscarriage of

justice." Chazen, 938 F.3d at 856.

In Hanson v. United States, 941 F.3d 874, 877 (7th Cir. 2019), the Seventh Circuit

addressed whether a "miscarriage of justice" occurred where the petitioner was sentenced under

the career offender provision of the Sentencing Guidelines and a subsequent change in the law

changed the defendant's status as a career offender.4 It concluded that "[a] change in the law

revoking the status under the now-advisory [Sentencing] Guidelines . . . is not cognizable upon

collateral review." Id. The court based its decision in part on the fact that the Sentencing Guidelines

are advisory and thus a district court "may not even presume that a sentence within the applicable

[Sentencing] Guidelines range would be proper." Id. (quoting Hawkins v. United States, 706 F.3d

820, 822 (7th Cir. 2013)). Rather, the court "must make an independent determination of whether

a guideline sentence would comport with the sentencing standard set forth in 18 U.S.C. § 3553(a)."

Hawkins, 706 F.3d at 823. Because the Sentencing Guidelines are now advisory, "[a]n error that

may have occurred in calculating the [Sentencing] Guidelines range does not constitute a

'miscarriage of justice' when the 'sentence is well below the ceiling imposed by Congress.'"

Hanson, 941 F.3d at 878 (quoting United States v. Coleman, 763 F.3d 706, 708 (7th Cir. 2014)).

Mr. Johnson was sentenced in May 2013, Crim. Dkt. 58, well after the Supreme Court

concluded in United States v. Booker, 543 U.S. 220 (2005), that the Sentencing Guidelines are

advisory. Because Mr. Johnson was sentenced under advisory, rather than mandatory, Sentencing

Guidelines, his reliance on Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011), is unpersuasive.

See Hawkins, 706 F.3d at 822-23 (noting a "critical difference between Narvaez and the present

case" because the petitioner in the present case was sentence under the advisory Sentencing

Guidelines).

4 The petitioner in Hanson v. United States, 941 F.3d 874 (7th Cir. 2019), sought relief under 28

U.S.C. § 2255, not § 2241. This difference is immaterial, however, as the inquiry under either

§ 2255 or § 2241 is whether the petitioner can establish a "miscarriage of justice." District courts

have applied the rationale in Hawkins to § 2241 petitions. See, e.g., Fleming v. Entzel, No. 20-cv-

1059, 2020 WL 5881437 (C.D. Ill. Oct. 2, 2020); Shabaz v. Bell, No. 2:18-cv-00260-JPH-DLP,

2019 WL 8227079 (S.D. Ind. Jan. 31, 2019); Lara v. Kreuger, No. 2:17-cv-00382-WTL-MJD,

2018 WL 8803707 (S.D. Ind. Apr. 26, 2018)

The Seventh Circuit has concluded that a petitioner sentenced under advisory Sentencing

Guidelines cannot establish a miscarriage of justice based on an error in applying the Sentencing

Guidelines so long as his sentence falls within the maximum punishment set by Congress. See

Hanson, 941 F.3d at 878. As discussed below, Mr. Johnson's 270-month sentence is well-within

the 30-year maximum sentence authorized by 21 U.S.C. § 841(b)(1)(C). Thus, even if he could

establish that he no longer qualifies as a career offender under § 4B1.1, he cannot establish a

miscarriage of justice that would allow his § 2241 petition to proceed under the savings clause. He

therefore is not entitled to relief on this basis.

B. Constitutional Claims

Mr. Johnson also raises three constitutional claims in his original and supplemental § 2241

petitions: (1) trial and appellate counsel failed to provide effective assistance as guaranteed by the

Sixth Amendment by failing to object to the application of Sentencing Guidelines § 4B1.1 at trial

and on appeal, dkt. 1 at 12-15; (2) his enhanced sentence under 21 U.S.C. § 841(b)(1)(C) violates

the Fifth and Sixth Amendments because the § 851 information was invalid and the jury did not

make a factual finding concerning his prior convictions, dkt. 8 at 14-17; and (3) errors during his

sentencing proceeding deprived him of his due process rights under the Fifth Amendment, dkt. 8

at 17-19. He may not proceed on any of these claims under § 2241, however, because none of them

satisfy the first Davenport requirement.

As explained above, to fit within the savings clause, a petitioner "must establish that the

claim relies on a statutory interpretation case, not a constitutional case, and thus could not have

been invoked by a successive § 2255 motion." Chazen, 938 F.3d at 856; see also Brown v.

Caraway, 719 F.3d 583, 586 (7th Cir. 2013) ("First, the prisoner must show that he relies on a

statutory-interpretation case, rather than a constitutional case." (internal quotation marks and

citation omitted)).

The three arguments identified above do not rely on cases of statutory interpretation. Mr.

Johnson's claims of ineffective assistance of counsel arise from Strickland v. Washington, 466 U.S.

668 (1984), a case wherein the Supreme Court outlined the right to effective assistance of counsel

found in the Sixth Amendment. His next argument relies on Apprendi v. New Jersey, 530 U.S. 466

(2000). In Apprendi, the Supreme Court held that the "[f]ederal Constitution's jury-trial guarantee

proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory

maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the

defendant." Cunningham v. California, 549 U.S. 270, 274-75 (2007). Finally, Mr. Johnson's third

argument invokes due process rights outlined in the Fifth Amendment.

Because these three arguments arise from cases of constitutional, rather than statutory,

interpretation, they do not fall within the first Davenport requirement. Mr. Johnson therefore may

not pursue these arguments in his § 2241 petition.

C. Compliance with Procedural Requirements of 21 U.S.C. § 851

Mr. Johnson also contends that he is entitled to relief under § 2241 because the district

court did not comply with certain procedural requirements outlined in 21 U.S.C. § 851(b). Dkt. 8

at 10-14. He states that the district court did not ask him to affirm or deny his prior convictions

and that trial and appellate counsel did not file a written response challenging the existence of the

prior convictions. Id. Mr. Johnson cannot pursue this claim under § 2241 because he cannot satisfy

any of the Davenport factors. The Court will focus on the second factor—whether this is a new

rule that was previously unavailable to Mr. Johnson.

In support of his argument, Mr. Johnson relies on Kelly v. United States, 29 F.3d 1107 (7th

Cir. 1994). See dkt. 8 at 10. In Kelly, the Seventh Circuit recognized "that a court does not even

have jurisdiction to impose an enhanced sentence unless notice [of the prior convictions] is served

. . . before the commencement of jury selection." 29 F.3d at 1110. Kelly was decided in 1994, and

the procedural requirements in § 851 have existed since the statute was enacted in 1970. Even if

the Court assumes that there was noncompliance with these procedural requirements when Mr.

Johnson was sentenced in 2013, this argument was available to him then.5 Consequently, he may

not proceed with this argument for relief under § 2241.

D. Mathis Claim

Finally, Mr. Johnson asserts that he is entitled to relief under § 2241 because his prior

convictions no longer qualify as predicate offenses for purposes of an enhanced sentence under 21

U.S.C. § 841(b)(1)(C) in light of Mathis v. United States, 136 S. Ct. 2243 (2016). Dkt. 8 at 5-10.

This claim meets the first two requirements under Davenport. 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.

Johnson also meets the second requirement because Mathis is retroactive. Chazen, 938 F.3d at

861-62 (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");

5 The Court notes that Kelly was expressly overruled by United States v. Ceballos, 302 F.3d 679,

692 (7th Cir. 2002). Although the procedural requirements of § 851 were no longer jurisdictional

when Mr. Johnson was sentenced, nothing precluded him from raising an earlier challenge based

on an alleged failure to comply with these requirements. See, e.g., Vinyard v. United States, No.

10-CV-341-WDS, 2013 WL 6153268, *20 (S.D. Ill. Nov. 22, 2013) (petitioner challenged failure

to comply with § 851 procedural requirements in § 2255 motion).

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. Johnson's petition satisfies the third requirement for relief under § 2241—that the error is

grave enough to be a miscarriage of justice.

Mr. Johnson's Mathis claim may satisfy the third Davenport requirement for relief under

§ 2241. If none of Mr. Johnson's prior state convictions qualify as a "felony drug offense" under

21 U.S.C. § 841(b)(1)(C), then he is actually innocent of the enhanced statutory maximum of 30

years' imprisonment under § 841(b)(1)(C) and the lower statutory maximum of 20 years'

imprisonment would apply. If the lower statutory maximum is applicable, the error is a miscarriage

of justice because Mr. Johnson received a sentence over 20 years' imprisonment. See Crim Dkt.

58. Thus, the Court will address the merits of Mr. Johnson's Mathis claim.

IV. Discussion

Mr. Johnson argues that there has been a miscarriage of justice because he was wrongfully

subject to an enhanced sentence under 21 U.S.C. § 841(b)(1)(C) based on his prior felony drug

convictions in the state of Michigan. Dkt. 8 at 5-10.

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 the merits analysis of a § 2241 petition. The choice of law

greatly impacts the outcome of Mr. Johnson's case. If Sixth Circuit law applies, Mr. Johnson 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. Apr.

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 714637, *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

any of Mr. Johnson'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).

District courts confronting this 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 the

concurrence in Chazen, 938 F.3d at 863-66, the Court concludes that the law of the circuit of

conviction applies in this case. This approach will promote consistency within Mr. Johnson's

challenges to his conviction and sentence and avoid inter-circuit conflict. The transient nature of a

§ 2241's petitioner's incarceration is another reason to apply the substantive law of the court of

conviction rather than the court of incarceration. Although Mr. Johnson was incarcerated at the

Federal Correctional Institution located in Terre Haute, Indiana, when he filed his petition, he was

subsequently transferred to another facility in yet another federal judicial circuit. It would not be

prudent to apply the substantive law of the court of incarceration when the place of incarceration

may change frequently.

B. Predicate Felony Drug Offense Under 21 U.S.C. § 841(b)(1)(C)

Mr. Johnson was subject to an enhanced statutory maximum sentence under 21 U.S.C.

§ 841(b)(1)(C) because of his prior felony convictions. See dkt. 20 at ¶ 56. When he was sentenced

in May 2013, the applicable version of § 841 provided in relevant part that, "[i]f any person

commits [a violation of this section] after a prior conviction for a felony drug offense has become

final, such person shall be sentenced to a term of imprisonment of not more than 30 years . . . ."

21 U.S.C. § 841(b)(1)(C) (eff. Aug. 3, 2010 to Dec. 20, 2018). The term "felony drug offense" 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.").

In November 2001, Mr. Johnson was convicted of one count of delivery or manufacture of

less than 50 grams of a controlled substance in violation of Michigan Compiled Laws § 333.7401.

See dkt. 19-1. As relevant to Mr. Johnson, § 333.7401(1) states: "a person shall not manufacture,

create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance, a

prescription form, or a counterfeit prescription form." Mich. Comp. Laws § 333.7401(1) (eff. until

Dec. 21, 2010). The statutory sentence for this offense at the time of Mr. Johnson's conviction was

"not more than 20 years." Id. § 333.7401(2)(a)(iv).

Section 333.7401 clearly prohibits conduct "relating to narcotic drugs." 21 U.S.C.

§ 804(22). The term "narcotic drugs" includes "cocaine, its salts, stereoisomers, and salts of

stereoisomers . . .," Mich. Comp. Laws § 333.7412(a)(iv) (eff. until Dec. 29, 2013), and Mr.

Johnson admits that his offense involved cocaine.6 See dkt. 1 at 8 (arguing that his convictions for

possession with intent to deliver and delivering cocaine do not qualify as predicate offenses).

Additionally, a violation of § 333.7401(1) is punishable by more than one year in prison. See Mich.

Comp. Laws § 333.7401(2)(a)(iv) (eff. until Dec. 21, 2010). Consequently, this conviction is a

predicate "felony drug offense" for purposes of 21 U.S.C. § 841(b)(1)(C). See United States v.

Owens, No. 5:17-CV-233-KKC-EBA, 2018 WL 3581138, *2 (E.D. Ky. May 30, 2018)

(determining that prior conviction under Mich. Comp. Laws § 333.7401 was a "felony drug

offense" for purposes of 21 U.S.C. § 841(b)).

The Court need not examine any of Mr. Johnson's other prior convictions. His conviction

for delivering or manufacturing less than 50 grams of cocaine in violation of Michigan Compiled

Laws § 333.7401 constitutes a "felony drug offense" under 21 U.S.C. § 802(44). Therefore, he has

at least one predicate offense that subjects him to the enhanced statutory maximum sentence set

forth in 21 U.S.C. § 841(b)(1)(C). He is not entitled to relief under § 2241 because he has not

established that he is actually innocent of the enhanced statutory maximum sentence.

V. Conclusion

Mr. Johnson's motion for leave to supplement, dkt. [28], is granted. For the reasons set

forth above, Mr. Johnson 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, 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 Order shall now issue.

SO ORDERED.

6 In addition to Mr. Johnson's admission, the judgment for this conviction establishes that he was

convicted of delivering or manufacturing cocaine. See dkt. 19-1 (referencing Mich. Comp. Laws

§ 333.7402(2)(a) which references Mich. Comp. Laws § 333.7214(a)(iv)).

Date: 9/29/2021

Sjamu Patrick awlove

James Patrick Hanlon

United States District Judge

Southern District of Indiana

Distribution:

TYRONE QUENTIN JOHNSON

46589-039

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

15