Gibbs v. United States

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0232p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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LARRY J. GIBBS,

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Petitioner-Appellant,

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No. 09-3702

v.

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Respondent-Appellee. -

UNITED STATES OF AMERICA,

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Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

Nos. 91-00128-019; 97-00556—James L. Graham, District Judge;

Norah McCann King, Magistrate Judge.

Argued: July 26, 2011

Decided and Filed: August 24, 2011

Before: NORRIS, GIBBONS, and GRIFFIN, Circuit Judges.

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COUNSEL

ARGUED: Keith O’Korn, Westerville, Ohio, for Appellant. Benjamin C. Glassman,

ASSISTANT UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellee.

ON BRIEF: Keith O’Korn, Westerville, Ohio, for Appellant. Benjamin C. Glassman,

ASSISTANT UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellee.

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OPINION

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JULIA SMITH GIBBONS, Circuit Judge. Larry Gibbs was convicted of

conspiracy to distribute heroin and sentenced as a career offender to thirty years’

imprisonment. In 1997, he filed a petition for a writ of habeas corpus on the grounds

that a prior state conviction for narcotics possession had been improperly assessed as a

predicate trafficking offense under the federal sentencing guidelines. This court denied

1

No. 09-3702 Gibbs v. United States Page 2

his petition, finding that Gibbs’s failure to raise this claim during his direct appeal

constituted a procedural default. Gibbs v. United States (Gibbs I), 3 F. App’x 404 (6th

Cir. 2001). Gibbs subsequently filed a motion to set aside this court’s judgment pursuant

to Federal Rule of Civil Procedure 60(b), claiming that his procedural default should be

excused because (1) he is “actually innocent” of the sentence he received and (2) the

claim he now pursues was previously unavailable during his direct appeal. The district

court denied his Rule 60(b) motion. For reasons explained below, we affirm the district

court’s decision.

I.

This court has previously reviewed the underlying facts of Gibbs’s conviction

in United States v. Hood, 14 F.3d 603, 1994 WL 4723 (6th Cir. Jan. 6, 1994) (table). In

1989, a police investigation in Columbus, Ohio, uncovered evidence that Gibbs served

as a retailer of heroin for a large-scale narcotics operation. Id. at *5. In 1991, a jury

convicted Gibbs of conspiracy to possess heroin with the intent to distribute, in violation

of 21 U.S.C. § 846(b)(1)(B)(i).

In the presentence report, the probation office classified Gibbs as a career

offender under U.S.S.G. § 4B1.1. This classification was based on two prior state court

convictions deemed predicate “controlled substance offenses” under U.S.S.G.

§ 4B1.2(b): one for drug trafficking in 1977 and another for heroin and cocaine

possession in 1987. This classification accounted for a fourteen-level increase, and the

probation office ultimately calculated a guidelines range of 360 months’ to life

imprisonment. Based on this calculation, the district court sentenced Gibbs to 360

months’ imprisonment.1 This court affirmed the district court’s sentence in 1994. Id.

at *10.

1

The probation office calculated Gibbs’s adjusted offense level to be 37 and his criminal history

category to be VI. Had he not been classified as a career criminal, Gibbs argues that he would have

received an offense level of 23 and a criminal history category of VI, corresponding to a guidelines range

of 92 to 115 months’ imprisonment.

No. 09-3702 Gibbs v. United States Page 3

In 1997, Gibbs applied for a writ of habeas corpus under 28 U.S.C. § 2255. In

his application, he challenged the district court’s decision to classify his 1987 state

conviction as a predicate offense under U.S.S.G. § 4B1.2(b). Gibbs argued that in 1987

he had been convicted under Ohio Revised Code § 2925.03(A)(4), which only

criminalized possession of narcotics and had no trafficking element.2 Thus, Gibbs

argued, his 1987 conviction did not qualify as a controlled substance offense under

U.S.S.G. § 4B1.2(b). While he had not raised this argument on direct appeal, Gibbs

claimed that he was excused from procedural default based on ineffective assistance

from his trial counsel. The district court rejected this argument, and this court affirmed

that decision in 2001. Gibbs I, 3 F. App’x at 406. The appellate panel found that Ohio

Revised Code § 2925.03(A)(4) did in fact constitute a trafficking crime and was

correctly deemed a controlled substance offense under U.S.S.G. § 4B1.2(b). Id. The

court therefore concluded that counsel had committed no error in failing to raise an

objection to the presentence report. Id.

Five years after Gibbs I, another panel of this court, this time in a published

opinion, found that Ohio Revised Code § 2925.03(A)(4) did not constitute a controlled

substance offense under U.S.S.G. § 4B1.2(b). United States v. Montanez, 442 F.3d 485,

494 (6th Cir. 2006). In reaching this conclusion, the panel opined that Gibbs I was

“wrongly decided” and incorrectly relied on the title of the code, rather than the elements

of the crime itself. Id. at 491–92. In light of the Montanez decision, Gibbs filed a

motion under Federal Rule of Civil Procedure 60(b). The district court initially treated

this motion as a successive petition and transferred the petition to this court, which

denied the Rule 60(b) motion “insofar as [it] challenged the district court’s prior

dismissal of his ineffective assistance claim on the merits.” In re Gibbs (Gibbs II), Nos.

07-3956, 97-00556, 2008 WL 2944699, at *3 (6th Cir. July 24, 2008). The panel,

however, remanded the motion to the district court with instructions to consider it

“insofar as the Rule 60(b) motion challenged the court’s finding that his claim that he

2

At the time of Gibbs’s 1987 conviction, § 2925.03 read: “No person shall knowingly . . .

[p]ossess a controlled substance in an amount equal to or exceeding the bulk amount, but in an amount less

than three times that amount.” Ohio Rev. Code Ann. § 2925.03(A)(4) (1984).

No. 09-3702 Gibbs v. United States Page 4

should not have been sentenced as a career offender was barred by an unexcused

procedural default.” Id. at *3.

On remand, the district court denied Gibbs’s Rule 60(b) motion. It did not accept

Gibbs’s argument that his “claim—i.e., that he was improperly classified as a career

offender—was so novel as to be unavailable at the time that he filed his appeal.” The

court also rejected Gibbs’s claim that “his actual innocence of the designation as [a]

career offender” should excuse his default. Gibbs now appeals this decision.

II.

Gibbs acknowledges that he failed to raise his U.S.S.G. § 4B1.1 claim on direct

appeal and that the claim is therefore procedurally defaulted. He offers two reasons,

however, why his procedural default should be excused. First, he argues that he is

“actually innocent” in the sense that he was incorrectly categorized as a career offender

under U.S.S.G. § 4B1.1. Second, he claims that his underlying predicate-offense

argument was unavailable to him at the time of his direct appeal. Pursuant to the

Supreme Court’s instruction in Dretke v. Haley, we address Gibbs’s unavailability claim

first. 541 U.S. 386, 393–94 (2004) (“[A] federal court faced with allegations of actual

innocence, whether of the sentence or of the crime charged, must first address all

nondefaulted claims for comparable relief and other grounds for cause to excuse the

procedural default.”).

A.

Gibbs alleges that his career offender claim was so novel at the time of his direct

appeal that it was “unavailable” to him at that time. Because this argument is a type of

“cause and prejudice” that might excuse Gibbs’s procedural default, this court reviews

the district court’s decision de novo. Cvijetinovic v. Eberlin, 617 F.3d 833, 836 (6th Cir.

2010).

The Supreme Court has recognized that “a claim that ‘is so novel that its legal

basis is not reasonably available to counsel’ may constitute cause for a procedural

default.” Bousley v. United States, 523 U.S. 614, 622 (1998) (quoting Reed v. Ross, 468

No. 09-3702 Gibbs v. United States Page 5

U.S. 1, 16 (1984)). The novelty standard, however, is a high one: the petitioner’s

counsel must have had “no reasonable basis upon which to formulate” the question now

raised. Reed, 468 U.S. at 14. In Bousley, the Supreme Court noted that reported cases

involving challenges similar to that raised by the present petitioner evidence that the

claim in question was not novel. 523 U.S. at 622–23. This court has similarly held that

“[a] claim may be held sufficiently novel when, at the time of its default, the legal tools,

i.e., case law, necessary to conceive and argue the claim were not yet in existence and

available to counsel.” Cvijetinovic, 617 F.3d at 837 (internal quotation marks omitted).

As Gibbs acknowledges, around the time that his direct appeal was being

adjudicated in this circuit, another district court was deciding the precise legal argument

that Gibbs now claims was unavailable to him. In United States v. Foster, a defendant

objected to his career-offender classification on the grounds that “[Ohio Revised Code]

§ 2925.03(A)(4) falls short of the federal definition of a controlled substance offense.”

28 F.3d 109, 1994 WL 201201, at *1 (9th Cir. May 23, 1994) (table). Based on the

timing of the decision, Gibbs argues that Foster could not have put his counsel on

adequate notice that the predicate-offense argument was available to Gibbs. Whether

Foster itself could have served as notice is largely irrelevant, however; the fact that the

same legal argument was being put forward to courts during Gibbs’s direct appeal

indicates that “the legal tools . . . necessary to conceive and argue the claim” existed.

In addition to Foster, multiple cases predating Gibbs’s direct appeal involved

defendants who challenged career-offender designations on the ground that prior state-

court convictions were not “controlled substance offenses” as defined by §§ 4B1.1 and

4B1.2 of the sentencing guidelines. See, e.g., United States v. Adkins, 961 F.2d 173, 174

(11th Cir. 1992) (per curiam); United States v. Gaitan, 954 F.2d 1005, 1008 (5th Cir.

1992); United States v. Galloway, 937 F.2d 542, 549 (10th Cir. 1991) (upholding a

defendant’s challenge to his career-offender classification under U.S.S.G. § 4B1.1 on the

grounds that “[o]ne of the predicate felonies cited by the district court was a prior state

conviction for possession” and “did not contain an element of intent to manufacture,

import, export, or distribute”). Although none of these cases dealt with the specific Ohio

No. 09-3702 Gibbs v. United States Page 6

statute Gibbs now challenges, the fact that parties had, prior to Gibbs’s direct appeal,

challenged offender classifications under U.S.S.G. § 4B1.1 further supports the

conclusion that the requisite “legal tools” were available during Gibbs’s direct appeal.

Because Gibbs’s argument was available to him on direct appeal, he has not

offered cause to excuse his procedural default.

B.

Gibbs also contends that he is excused from his procedural default because he

is “actually innocent” of the sentence he received. See Vanwinkle v. United States, ---

F.3d ---, 2011 WL 1775676, at *3 (6th Cir. May 11, 2011) (noting that “actual

innocence” may excuse a procedural default). Specifically, Gibbs argues that this

court’s Montanez opinion establishes his “actual innocence of being a career offender.”

The government responds with two arguments: first, that the actual innocence doctrine

does not apply in the noncapital sentencing context, and, second, that Gibbs is not, in

fact, actually innocent.

1.

The “actual innocence” doctrine derives from the Supreme Court’s “fundamental

miscarriage of justice” exception to the procedural default rule. Schlup v. Delo, 513 U.S.

298, 321 (1995) (“To ensure that the fundamental miscarriage of justice exception would

remain rare and would only be applied in the extraordinary case . . . this Court explicitly

tied the miscarriage of justice exception to the petitioner’s innocence.” (internal

quotation marks omitted)). The Court has explained that, while the procedural default

rule ordinarily applies for purposes of comity and finality, the bar should not be so

absolute as to produce a “fundamental miscarriage of justice.” See Engle v. Isaac, 456

U.S. 107, 135 (1982). Therefore, the Court has held that “in an extraordinary case,

where a constitutional violation has probably resulted in the conviction of one who is

actually innocent, a federal habeas court may grant the writ even in the absence of a

showing of cause for the procedural default.” Murray v. Carrier, 477 U.S. 478, 496

(1986). However, “actual innocence” is an extremely narrow exception, and “claims of

No. 09-3702 Gibbs v. United States Page 7

actual innocence are rarely successful.” Schlup, 513 U.S. at 324. Moreover, “a claim

of ‘actual innocence’ is not itself a constitutional claim, but instead a gateway through

which a habeas petitioner must pass to have his otherwise barred constitutional claim

considered on the merits.” Herrera v. Collins, 506 U.S. 390, 404 (1993).

The full scope of the “actual innocence” doctrine remains unclear.3 The Supreme

Court has declined to decide whether a procedural default can be excused by a defendant

“assert[ing] ‘actual innocence’ of a noncapital sentence.” Dretke v. Haley, 541 U.S. 386,

388–89 (2004). Without Supreme Court guidance, the Courts of Appeals disagree over

whether the actual innocence exception applies to noncapital sentencing cases.4 This

court has not yet issued a published opinion that addresses whether the actual innocence

exception extends to noncapital sentences, but we have in two unpublished opinions

rejected claims similar to that of Gibbs. Flahardy v. United States, 67 F.3d 299, 1995

WL 570925, at *2 (6th Cir. Sept. 27, 1995) (table) (“The actual innocence exception is

not available . . . in the case of a challenge to a noncapital sentence.”); Black v. United

States, 61 F.3d 903, 1995 WL 445718, *2 (6th Cir. July 26, 1995) (table) (holding the

actual innocence exception does not apply if the petitioner “claims only that he should

have received a lesser sentence” and “does not claim that he is actually innocent of the

offense of which he was convicted”). Because it is not necessary to resolve whether the

“actual innocence” exception extends to the noncapital sentencing context, however, we

do not address it squarely in this case.

3

In both the capital and noncapital contexts, the Supreme Court has ruled that the actual

innocence exception applies “when the habeas applicant can demonstrate that the alleged constitutional

error has resulted in the conviction of one who is actually innocent of the underlying offense.” Dretke v.

Haley, 541 U.S. 386, 388 (2004) (emphasis added); see also Bousley v. United States, 523 U.S. 614, 623

(1998) (noncapital); Schlup, 513 U.S. at 327–28 (capital). The Supreme Court has also held that actual

innocence claims may be raised in the context of capital sentencing—that is, where the petitioner intends

to show that she was actually ineligible for the death penalty under the relevant federal or state law.

Sawyer v. Whitley, 505 U.S. 333, 347 (1992).

4

At least three circuits hold that actual innocence does not excuse procedural defaults in the

noncapital sentencing context. Embrey v. Hershberger, 131 F.3d 739, 740–41 (8th Cir. 1997) (en banc);

Hope v. United States, 108 F.3d 119 (7th Cir. 1997); United States v. Richards, 5 F.3d 1369, 1371 (10th

Cir. 1993) (“A person cannot be actually innocent of a noncapital sentence . . . .”). Three other circuits

have permitted actual innocence arguments in noncapital sentencing cases if—as Gibbs does here—the

petitioner is challenging her eligibility for application of a career offender or other habitual offender

provision. Haley v. Cockerell, 306 F.3d 257 (5th Cir. 2002), vacated sub nom. Dretke, 541 U.S. at 388–89;

Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 171 (2d Cir. 2000); United States

v. Mikalajunas, 186 F.3d 490, 494–95 (4th Cir. 1999).

No. 09-3702 Gibbs v. United States Page 8

2.

Although presented as an “actual innocence” claim, Gibbs’s real argument is that

the district court miscalculated his offense level and criminal history under the federal

sentencing guidelines. Even if the “actual innocence” exception applies in some

noncapital sentencing contexts, we believe that the exception does not permit prisoners

to raise claims about guidelines calculations in a collateral attack. For this reason,

Gibbs cannot rely on “actual innocence” to excuse his earlier procedural default.

Our conclusion comes from the Supreme Court’s own decisions involving

“actual innocence.” First, allowing defendants to raise such claims would be contrary

to the Court’s language limiting the exception to “extraordinary case[s].” Schlup, 513

U.S. at 321; Murray, 477 U.S. at 496. Challenges to guidelines calculations are

omnipresent in our federal system, and we believe the Court did not intend for the “rare”

exception of actual innocence, Schlup, 513 U.S. at 321, to permit such a common form

of appeal.

Second, sentencing guidelines calculations do not affect a defendant’s eligibility

for a sentence, and cases that have previously considered “actual innocence” claims in

the sentencing context are distinguishable. In Sawyer v. Whitley, for instance, the

Supreme Court explained that, in the capital-sentencing context, the “actual innocence”

inquiry “focus[es] on those elements that render a defendant eligible for the death

penalty.” 505 U.S. at 347. “[T]o show ‘actual innocence’” in the sentencing context, the

petitioner “must show by clear and convincing evidence that, but for a constitutional

error, no reasonable juror would have found the petitioner eligible for the . . . penalty

under the applicable . . . law.” Id. at 336. Based on Sawyer, courts that have permitted

“actual innocence” claims in the noncapital sentencing context have focused on the same

principle—eligibility for the sentence received. See, e.g., Spence, 219 F.3d at 171

(focusing on whether “the defendant was actually ineligible” for the noncapital sentence

imposed); see also Dretke, 541 U.S. at 398 (Stevens, J., dissenting) (arguing that “actual

innocence” should apply in the noncapital sentencing context if a petitioner’s

“incarceration is unauthorized”).

No. 09-3702 Gibbs v. United States Page 9

In federal sentencing cases, federal law authorizes an imprisonment range. While

the sentencing guidelines are used as a starting point for determining where within the

statutorily-set range a prisoner’s sentence should fall, the guidelines themselves are

advisory. United States v. Booker, 543 U.S. 220, 246 (2005); United States v. Barnett,

398 F.3d 516, 525 (6th Cir. 2005). A challenge to the sentencing court’s guidelines

calculation, therefore, only challenges the legal process used to sentence a defendant and

does not raise an argument that the defendant is ineligible for the sentence she received.

The Supreme Court did not intend the “actual innocence” exception to save such

procedural claims. See Sawyer, 505 U.S. at 339 (“[T]he miscarriage of justice exception

is concerned with actual as compared to legal innocence.”).5

Finally, the specific facts of this case only confirm to us that Gibbs is not entitled

to relief. Based on his conviction for conspiracy to distribute heroin, federal law

authorized a sentence between ten years and life imprisonment, and Gibbs’s 360-month

term of imprisonment was therefore statutorily authorized. 21 U.S.C. §§ 841(b)(1)(B),

846, 851. The sentencing court is charged with imposing a sentence “sufficient but not

greater than necessary” within the statutory range to afford adequate deterrence, reflect

the seriousness of the offense, and protect the public. See 18 U.S.C. § 3553(a). Gibbs’s

record reveals a long criminal history and involvement in a large-scale narcotics ring and

suggests a longer sentence might be necessary to achieve these goals. And although

Gibbs may have been convicted of a possession offense in 1987, the underlying facts

indicate that he was involved in narcotics trafficking at the time. Given this evidence,

Gibbs cannot clearly and convincingly establish that he was ineligible for the 360-month

sentence he received. See Sawyer, 505 U.S. at 348 (noting a petitioner claiming actual

innocence must show by “clear and convincing evidence that but for constitutional error,

no reasonable juror would find him eligible for the . . . penalty under [the applicable] . . .

5

Gibbs implicitly claims that his case is different because he was sentenced by a court that

assumed the guidelines were mandatory. However, the Supreme Court has clarified that treating the

guidelines as mandatory is a procedural mistake, not a substantive one. Gall v. United States, 552 U.S.

38, 51 (2007) (classifying a district court’s “treating the Guidelines as mandatory” as a “procedural error”).

Similarly, an improper calculation of a guidelines range is a procedural, and not substantive, error. Id.

(classifying a district court’s “improperly calculating . . . the Guidelines range” as a “procedural error”).

Procedural errors like these only implicate legal, and not actual, innocence.

No. 09-3702 Gibbs v. United States Page 10

law”). Because a court could have reasonably believed a thirty-year sentence was

appropriate in this case, even without considering Gibbs to be a career offender, Gibbs

cannot rely on “actual innocence” to excuse his procedural default. The district court

was therefore correct to reject his claim.

III.

For the foregoing reasons, we affirm the decision of the district court.