United States District Court, E.D. Arkansas, Eastern Division
FINDINGS AND RECOMMENDATION
following proposed Findings and Recommendation have been sent
to United States District Judge D.P. Marshall Jr. You may
file written objections to all or part of this
Recommendation. If you do so, those objections must: (1)
specifically explain the factual and/or legal basis for your
objection, and (2) be received by the Clerk of this Court
within fourteen (14) days of this Recommendation. By not
objecting, you may waive the right to appeal questions of
record reflects that petitioner Patrick Jean Aubin
(“Aubin”) pleaded guilty in the United States
District Court for the Middle District of North Carolina
(“Middle District of North Carolina”) to one
count of possession with intent to distribute marijuana, one
count of possession with intent to distribute cocaine base,
and one count of possession of a firearm by a convicted
felon. See United States v. Aubin, 67 Fed.Appx. 842
(4th Cir. 2003). A Presentence Report (“PSR”) was
then prepared, paragraph eighteen of which provided the
Chapter Four Enhancement: As is shown in
Part B. Defendant's Criminal History, [Aubin] has been
convicted of Trafficking in Cocaine, Conspiracy to Traffic in
Cocaine, and Possession With Intent to Sell and Deliver
Cocaine. Since the instant offense is a felony controlled
substance [offense] and [he] was 18 years or older at the
time of the offense, [he] is a career offender within the
meaning of USSG 4B1.1. ...
See Docket Entry 8, Exhibit 1 at CM/ECF 2. On
November 14, 2001, United States District Judge James A.
Beaty, Jr., sentenced Aubin as a career offender to the
custody of the Federal Bureau of Prisons (“BOP”).
See Docket Entry 8, Exhibit 2.
appealed and challenged, in part, his sentencing as a career
offender. The United States Court of Appeals for the Fourth
Circuit (“Fourth Circuit”) found no reversible
error and affirmed. See United States v. Aubin,
August 9, 2004, Aubin filed a motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. 2255 in the Middle
District of North Carolina. Judge Beaty denied the motion and
declined to issue a certificate of appealability.
See Docket Entry 8, Exhibit 5.
attempted to appeal Judge Beaty's denial of the motion
pursuant to 28 U.S.C. 2255. The Fourth Circuit denied a
certificate of appealability and dismissed his appeal.
See United States v. Aubin, 161 Fed.Appx. 331
(4th Cir. 2006).
September 19, 2013, Aubin filed a second motion pursuant to
28 U.S.C. 2255 in the Middle District of North Carolina.
See Docket Entry 8, Exhibit 3 at CM/ECF 8 (Docket
Entry 75). Approximately forty-two days later, he filed a
third motion pursuant to 28 U.S.C. 2255 in the Middle
District of North Carolina. See Docket Entry 8,
Exhibit 3 at CM/ECF 8 (Docket Entry 78). Judge Beaty denied
both motions on December 11, 2013, because Aubin failed to
obtain authorization from the Fourth Circuit to file the
motions. See Docket Entry 8, Exhibit 3 at CM/ECF 9
(Docket Entry 81).
December 17, 2017, Aubin filed a motion with the Fourth
Circuit for authorization to file a second or successive
motion pursuant to 28 U.S.C. 2255. See Docket Entry
2 at CM/ECF 2. He represents that he premised his motion for
authorization primarily upon United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011). See
Docket Entry 2 at CM/ECF 2. The Fourth Circuit denied the
motion for authorization on January 3, 2018. See
Docket Entry 8 at Exhibit 6.
March 23, 2018, Aubin began the case at bar by filing a
petition for writ of habeas corpus pursuant to 28 U.S.C.
2241. In the petition, he advanced the following two claims:
1) in light of Mathis v. United States, ___ U.S.
___, 136 S.Ct. 2243, 195 L.Ed.3d 604 (2016), Aubin's
sentencing as a career offender was improper because his
prior convictions from the State of North Carolina no longer
qualify as controlled substance offenses for purposes of the
United States Sentencing Guidelines
2) in light of United States v. Simmons, Aubin is
actually innocent of the felon-in-possession offense because
his prior State of North Carolina conviction for possession
with intent to sell and deliver cocaine is no longer a
qualifying predicate conviction. Aubin asked that he be
re-sentenced without the career ...