United States District Court, S.D. Illinois
STERLING McKOY, No. 19319-047 Petitioner,
UNITED STATES OF AMERICA,  and JAMES CROSS, Respondent.
MEMORANDUM AND ORDER
DAVID R. HERNDON, District Judge.
Petitioner Sterling McKoy, currently incarcerated in FCI-Greenville, brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge the constitutionality of his sentence in United States v. McKoy, Case No. 03-cr-290 (D. Neb. 2005).
McKoy's petition for writ of habeas corpus is now before the Court for review under Rules 1(b) and 4 of the Rules Governing Section 2254 Cases in United States District Courts. Rule 4 provides that upon preliminary consideration by the district court judge, "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." Rule 1(b) of those Rules gives this Court the authority to apply the rules to other habeas corpus cases, such as this action under 28 U.S.C. § 2241.
Synopsis of Procedural History
In June 2004, a jury found petitioner McKoy guilty of conspiracy to distribute and possess with intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and ((b)(2). United States v. McKoy, Case No. 03-cr-290 (D. Neb. 2005). McKoy was initially sentenced to 348 months' imprisonment, but he was resentenced to 300 months' imprisonment in the wake of United States v. Booker, 543 U.S. 220 (2005), which made the Sentencing Guidelines advisory, not mandatory-altering 18 U.S.C. § 3553(b) accordingly. ( See Doc. 251 in the criminal case).
McKoy appealed the drug amount used to calculate his sentence (1.5 kilograms of cocaine base ( see Doc. 486, p. 1 in the criminal case)). In affirming his conviction and sentence, the Court of Appeals for the Eighth Circuit rejected McKoy's argument that the drug amount should have been decided by a jury ( see Docs. 256, 305 in the criminal case); United States v. McKay, 431 F.3d 1085 (8th Cir. 2005) (consolidated appeal with co-defendant Rashad McKay). The appellate court concluded that the evidence showed that McKoy had dealt multiple kilos of drugs, but he was actually sentenced based on a lesser amount.
In 2007, McKoy unsuccessfully moved to vacate, set aside or correct his sentence, again challenging the drug quantity ( see Docs. 334, 346, 356 in the criminal case). The Eighth Circuit denied him a certificate of appealability and dismissed the appeal ( see Docs. 381, 384 in the criminal case). In 2010, McKoy attempted to file a second Section 2255 motion, but that motion was denied ( see Doc. 416, 418 in the criminal case).
Two attempts to secure a sentence reduction via 18 U.S.C. § 3582(c)(2) also failed ( see Docs. 444, 445, and 486, 487 in the criminal case). Despite changes to the Guidelines relative to Crack Cocaine, McKoy's Guidelines sentencing range was 360 months to life, and his 300-month sentence already fell below that range.
A 2013 habeas corpus petition filed by McKoy pursuant to 28 U.S.C. § 2241, arguing that the crack cocaine sentencing scheme is racially discriminatory, was recently dismissed by this Court. See McKoy v. Cross, Case No. 13-cv-1121-DRH, Doc. 5 (S.D. Ill. Nov. 25, 2013). McKoy subsequently initiated this habeas corpus action attacking his sentence on other grounds.
Citing the recent Supreme Court decision Peugh v. United States, ___ U.S. ___, 133 S.Ct. 2072 (June 10, 2013), petitioner McKoy argues that it was a violation of the Ex Post Facto Clause (Art. I, § 9, cl. 3), and the Due Process Clause (Amend. V), to sentence him under advisory, rather than mandatory Sentencing Guidelines, in the wake of United States v. Booker, 543 U.S. 220 (2005)-a change that postdated his criminal acts.
In Peugh, an Ex Post Facto Clause violation was found when new, more onerous Sentencing Guidelines were used to sentence the defendant than were in effect when the crime was committed. McKoy argues that his sentence is an Ex Post Facto Clause violation regardless of whether the statutory maximum penalty was increased or altered by the new Guidelines. From McKoy's perspective, United States v. Booker, 543 U.S. 220 (2005), which made the Sentencing Guidelines advisory, in effect increased his statutory maximum sentence from 262 months' imprisonment to imprisonment for life. Furthermore, McKoy points to the drug quantity guidelines in Guidelines Section 2D1.1(c) and argues that Booker effectively lowered the burden of proof for proving drug quantity from "beyond a reasonable doubt" to "a preponderance of the evidence." He emphasizes that under Blakely v. Washington, 542 U.S. 296 (2004), any factor that increases the penalty for a crime must be proved beyond a reasonable doubt, and that the maximum sentence a judge may impose must be solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.
For the same reasons his sentence purportedly violates the Ex Post Facto Clause, McKoy contends his right to due process was violated by the post- Booker advisory Guidelines.
In support of using Section 2241 to upset his sentence, McKoy asserts that he qualifies under the "savings clause" of 28 U.S.C. § 2255(e), because a motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence is inadequate to test the validity of his sentence. McKoy views Peugh as a new decision regarding both constitutional law and statutory interpretation, unavailable at the time of his initial Section 2255 motion, and which can be applied retroactively-at least under Judge Rovner's dissenting opinion in Hawkins v. United States, 724 F.3d 915, 922 (7th Cir. 2013). He further argues that his ...