govinfo:USCOURTS-ksd-5_10-cr-40037-0

IN THE UNITED STATES DISTRICT COURT 
 
FOR THE DISTRICT OF KANSAS 
 
 
UNITED STATES OF AMERICA, ) 
 ) 
 Plaintiff, ) 
 ) 
 v. ) Case No. 10-40037/13-4099-RDR 
 ) 
RISHEEN DANIEL ROBINSON, ) 
 ) 
 Defendant. ) 
 _ 
MEMORANDUM AND ORDER 
 
This matter is presently before the court upon defendant=s pro 
se motion to vacate, set aside or correct sentence pursuant to 28 
U.S.C. ' 2255. In his motion, the defendant contends the court =s 
finding at sentencing that he was a career offender must be vacated. 
He argues that such action is necessary because (1) he is actually 
innocent of being a career offender; and (2) the court lacked 
jurisdiction to impose a career offender sentence. Having carefully 
reviewed the arguments of the parties, the court is now prepared to 
rule. 
 I. 
On August 26, 2010, a jury convicted the defendant of 
distribution of a mixture or substance containing a detectable amount 
of cocaine base in violation of 21 U.S.C. ' 841(a)(1). Prior to 
trial, the government filed an Amended Information under 21 U.S.C. 
' 851(a)(1) to seek a penalty enhancement because the defendant had 
a prior felony conviction in Riley County, Kansas District Court for 
possession of cocaine with intent to distribute without 1000 feet 
of a school in 2003. 

2 
 
The presentence report (PSR) prepared by the United States 
Probation Office ap plied U.S.S.G. ' 4B1.1 because the defendant 
qualified as a career offender under the Sentencing Guidelines. The 
defendant qualified as a career offender because he had four 
qualifying felony convictions. Based upon the application of ' 4B1.1 
to the defe ndant=s offense of conviction, the defendant =s total 
offense level was 34. This total offense level, combined with the 
defendant=s criminal history category of VI yielded an advisory 
Guidelines sentencing range of 262 to 327 months. 
On April 21, 2011, the court conducted a sentencing hearing. 
The defendant sought a downward variance from the advisory Guidelines 
sentencing range to ten years. He objected to application of the 
career offender guideline Aboth on due process grounds under the Fifth 
Amendment, as well as cruel and unusual grounds under the Eighth 
Amendment.@ The government requested that the court sentence the 
defendant to the top end of the career offender range. 
The court found that the defendant =s correctly calculated 
advisory Guidelines sentencing range was 262 to 327 months based on 
the career offender guideline and imposed a sentence of imprisonment 
of 262 months. The court determined this sentence appropriate in 
light of the factors under 18 U.S.C. ' 3553(a). 
The defendant appealed his sentence. He contended only that 
his sentence was substantively unreasonable. The Tenth Circuit 

3 
 
applied a presumption of reasonableness to this court =s within 
Guidelines sentence and affirmed the sentence. United States v. 
Robinson, 437 Fed.Appx. 733, 735-36 (10th Cir. 2011). This decision 
was issued on August 30, 2011. The defendant=s petition for writ of 
certiorari was denied by the Supreme Court on January 9, 2012. 
Robinson v. United States, 132 S.Ct. 1065 (2012).1 
 II. 
The government contends that defendant=s motion must be denied 
as untimely. The government asserts that the defendant did not file 
his motion until more than one year after his judgment of conviction 
became final. The government further argues that the defendant=s 
claims are barred under the procedural default rule. Finally, the 
government asserts that the defendant=s claims fail on the merits. 
The AntiBTerrorism and Effective Death Penalty Act ( AAEDPA@) 
establishes a one-year limitations period within which ' 2255 movants 
must file. The one-year limitations period ordinarily runs from the 
date on which the judgment of conviction becomes final. See 28 U.S.C. 
' 2255(f)(1). The judgment of conviction became final in this case 
on January 9, 2012. The instant motion is untimely since the 
 
1The government had incorrectly argued in its response that the 
defendant did not file a petition for writ of certiorari. The 
government=s error had no impact on its arguments since the defendant=s 
motion is also untimely based upon the date of the denial of the writ 
of certiorari. 

4 
 
defendant did not file it until August 28, 2013. 
The defendant recognizes that he did not file the instant 
petition within the one-year time limit but contends that this court 
may reach his claim under three theories that allow him to circumvent 
procedural default. First, he contends that he can assert the motion 
because he Ais actually innocent of being a career offender as 
concluded by this Court. @ He notes that a recent United States 
Supreme Court case, McQuiggin v. Perkins, 569 U.S. ____, 133 S.Ct. 
1924 (2013), has clarified that a claim of actual innocence is not 
barred by the time limitations of AEDPA. Second, he asserts that 
the government=s Amended Information which was filed prior to trial 
is ineffective to confer jurisdiction upon this court to sentence 
him as a career offender because it alleged a single felony conviction 
instead of two such convictions as required under ' 4B1.1. Finally, 
he argues that his claim is not time-barred because the court lacked 
jurisdiction to sentence him as a career offender because he did not 
have the two requisite qualifying convictions. 
 III. 
The record shows that defendant=s ' 2255 motion is time-barred 
because it was filed after the expiration of the one-year statute 
of limitations. The arguments raised by the defendant to avoid the 
application of the statute of limitations lack merit. 
 

5 
 
The court shall begin with the defendant =s argument that his 
motion is not time-barred or procedurally defaulted because he claims 
he is actually innocent of the career offender sentence. He relies 
upon McQuiggin for support. 
Under certain circumstances, a claim of actual innocence may 
be a ground for equitable tolling of the limitations period. See 
Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000)(AAEDPA's one-year 
statute of limitations is subject to equitable tolling but only in 
rare and exceptional circumstances ... for example, when a prisoner 
is actually innocent. @ (quotation omitted)). To establish actual 
innocence, a petitioner must demonstrate that Ait is more likely than 
not that no reasonable juror would have convicted him in the light 
of. . .new evidence. @ Schlup v. Delo, 513 U.S. 298, 327 
(1995)(remanding a state prisoner =s federal habeas petition for 
consideration of an actual innocence claim notwithstanding 
petitioner=s procedural default); see also Bousley v. United States, 
523 U.S. 614, 623 (1998)(applying the Schlup standard to a federal 
prisoner=s ' 2255 motion). 
The defendant does not claim that he is actually innocent of 
the charge of which he was convicted. Rather, he claims actual 
innocence of his sentence as a career offender. 
The Supreme Court has applied the actual innocence exception 
in two situations: (1) to a claim of actual innocence of the crime 

6 
 
of conviction; and (2) to a claim of actual innocence of a capital 
sentence. See Schlup, 513 U.S. at 321(actual innocence of a crime 
of conviction); Sawyer v. Whitley, 505 U.S. 333, 336 (1992)(actual 
innocence of a capital sentence). Neither the Supreme Court nor the 
Tenth Circuit has ruled that Sawyer=s actual innocence of a sentence 
exception extends to the noncapital sentencing context. See Reid 
v. Oklahoma, 101 F.3d 628, 630 (10th Cir. 1996); United States v. 
Richards, 5 F.3d 1369, 1371 (10th Cir. 1993). 
The defendant has suggested that McQuiggin and Selsor v. Kaiser, 
22 F.3d 1029 (10th Cir. 1994) provide support for his contention that 
actual innocence of his sentence provides equitable tolling for his 
motion. We must disagree. In McQuiggin, the Supreme Court held 
that actual innocence can serve as a gateway whereby a petitioner 
can pass through the expiration of the statute of limitations. 133 
S.Ct. at 1928. McQuiggin, however, did not extend the Supreme Court=s 
previous rulings on the actual innocence exception to noncapital 
sentences. Since the defendant is not asserting his innocence on 
his crime of conviction, McQuiggin provides no relief. 
The defendant =s reliance upon Selsor is also misplaced. In 
Selsor, in dicta and relying upon a Seventh Circuit case, the Tenth 
Circuit indicated that in the habitual offender context, like in the 
capital punishment context, a petitioner can be actually innocent 
of the sentence if he can show that he is factually innocent of a 

7 
 
required showing of proof separate and distinct from that necessary 
to establish his guilt. 22 F.3d at 1036. Thus, in the habitual 
offender context, the petitioner must show factual innocence as to 
one of the prior qualifying convictions necessary to sentence him 
as an habitual offender. Id. Selsor, even if the law on the 
habitual offender context had been adopted by the Tenth Circuit, 
provides no relief for the defendant. The defendant does not claim 
factual innocence of the prior convictions that led to the court=s 
determination that he was career offender. Rather, he claims only 
that he did not have the requisite convictions to meet the 
requirements of the career offender guideline. As the court made 
clear in Selsor: A[A]ctual innocence of the sentence still requires 
a showing of factual innocence.@ Id.(emphasis in original). There 
is no indication in Tenth Circuit law that the defendant =s claim 
constitutes actual innocence for the purposes of equitable tolling 
of AEDPA=s one-year limitations period. See Collins v. Ledezma, 400 
Fed.Appx. 375, 376 (10th Cir. 2010)(AA claim of actual innocence with 
respect to a noncapital sentence enhancement, rath er than an 
underlying crime, does not come within the scope of ' 2255=s savings 
clause.@); see also McKay v. United States, 657 F.3d 1190, 1199 (11th 
Cir. 2011)(actual innocence of sentence exception does not apply to 
claim that petitioner was erroneously sentenced as a career 
offender). 

8 
 
For similar reasons, the court also finds that the defendant 
has procedurally defaulted on this claim. AWhen a defendant fails to 
raise an issue on direct appeal, he is barred from raising it in a 
' 2255 motion unless he can show cause excusing his procedural default 
and actual prejudice resulting from the errors of which he complains, 
or can show that a fundamental miscarriage of justice will occur if 
his claim is not addressed.@ United States v. McGaughy, 670 F.3d 
1149, 1159 (10th Cir. 2012). 
To establish Acause@ requires a defendant to show some external 
objective factorC-such as governmental interference, unavailability 
of the relevant factual or legal basis, or ineffective assistance 
of counselC-prevented him from raising the issue on direct appeal. 
See Murray v. Carrier, 477 U.S. 478, 488 (1986); United States v. 
Cook, 45 F.3d 388, 392 (10th Cir. 1995). The fundamental miscarriage 
of justice exception allows a defendant to obtain review of his 
defaulted claims by showing actual innocence. See Sawyer, 505 U.S. 
at 339B40. 
The defendant has raised only a claim of actual innocence. For 
the reasons previously stated, the court does not find that the 
defendant has made an adequate showing of actual innocence. 
Accordingly, this claim is also barred by procedural default since 
the defendant failed to raise this issue in this court or on direct 
appeal. 

9 
 
 IV. 
Even assuming that the defendant=s claim that the court erred 
in finding him to be a career offender was timely and not procedurally 
defaulted, the court finds no support in the record for it. AA 
defendant is a career offender if (1) the defendant was at least 
eighteen years old at the time the defendant committed the instant 
offense of conviction; (2) the instant offense of conviction is a 
felony that is either a crime of violence or a controlled substance 
offense; and (3) the defendant has at least two prior felony 
convictions of either a crime of violence or a controlled substance 
offense.@ U.S.S.G. ' 4B1.1(a). 
The PSR conclusively rebuts the defendant =s actual innocence 
claim because his criminal record contains four qualifying 
convictions: (1) a felony conviction for aggravated robbery in Saline 
County, Kansas District Court in 1994; (2) a felony conviction for 
possession of methamphetamine with intent to distribute in Riley 
County, Kansas District Court in 2002; (3) a felony conviction for 
possession of cocaine with intent to distribute in Riley County, 
Kansas District Court in 2003; and (4) a felo ny conviction for 
possession of cocaine with intent to distribute within 1000 feet of 
a school in Riley County, Kansas District Court in 2003. Reliance 
upon any two of these convictions was sufficient to determine that 
the defendant qualified as a career offender. 

10 
 
The defendant contends that, for several reasons, he was not 
a career offender. He has suggested initially that the PSR fails 
to show that he was a career offender. The defendant contends that 
the court incorrectly relied upon the following c onvictions in 
determining he was a career offender: (1) his 1994 conviction for 
misdemeanor battery; (2) his 2005 conviction for possession of 
cocaine; and (3) his convictions for speeding and driving while 
suspended. He further argues that (1) the court failed to state 
which convictions it relied upon to support the career offender 
application; and (2) the mere fact that the court Acould have@ relied 
upon certain convictions to make a career offender determination is 
not sufficient. 
The defendant =s arguments are both factually and legally 
incorrect. In the PSR, the probation officer provided the following 
assessment of the application of the career offender provisions: 
The defendant is a Career Offender, as defined by U.S.S.G. 
4B1.1. As detailed in Part B (Criminal History) below, 
the defendant has sustained convictions for controlled 
substance offenses, as defined by U.S.S.G. 4B1.2(b). 
These are noted in paragraphs 47, 48, and 49. He has also 
sustained a conviction for a crime of violence, as defined 
by U.S.S.G. 4B1.2(a), as detailed in paragraph 44. The 
instant offense is also a controlled substance offense, 
as defined by the guidelines, and the defendant was 18 
years or older at the time of it commission. Therefore, 
the defendant is a Career Offender within the meaning of 
U.S.S.G. 4B1.1. 
 
 

11 
 
At sentencing, the defendant raised no objections to the factual 
support and legal determination that he was a career offender under 
the Guidelines. And, on appeal, he again raised no such issues. 
Now, he suggests that the PSR was wrong because it relied upon 
(1) certain driving offenses; (2) a conviction for misdemeanor 
battery that occurred when he was not 18 years old; and (3) a 
conviction for simple of possession of controlled substances. He 
suggests that, as a result, the court had no basis to determine that 
he was career offender. 
As correctly noted by the government, the court did not 
specifically state what convictions it relied upon to reach the 
conclusion that the defendant was a career offender. The court found 
it unnecessary to formally do so because (1) the PSR clearly stated 
what convictions supported the career offender finding and (2) the 
defendant made no arguments that he was not career offender. Under 
these circumstances, the court finds no basis for the defendant =s 
contention that the court had Ano basis@ to determine he was a career 
offender. The record before the court clearly supports the 
application the enhancement for career offender. 
The court notes that the PSR was amended twice after its initial 
preparation. During those amendments, the paragraphs were obviously 
renumbered and the probation officer made no effort to correct 
portions of the PSR that referred to those paragraphs. The 

12 
 
defendant=s contention concerning the court=s apparent reliance on 
prior driving offenses is the product of the amended PSRs. In the 
aforementioned statement, the probation officer found that the 
defendant was a career offender based upon three prior convictions 
for controlled substances offenses in paragraphs 47, 48 and 49. 
Paragraph 49 of the final PSR refers to certain prior driving 
convictions of the defendant. However, paragraphs 45, 46 and 47 
refer to the defendant =s three prior convictions for controlled 
substances offenses. Thus, there is little question that the PSR 
provides adequate support for the court=s finding that the defendant 
was a career offender. 
The defendant has also argued that the court could not rely upon 
the conviction for battery in 1994 because it was a misdemeanor and 
he was only 16 years old at that time. The court believes that the 
mis-numbered paragraphs again play a role in this argument. The PSR, 
in determining the application of the career offender status, 
referred to paragraph 44. Paragraph 44 references the defendant=s 
1994 conviction for battery. Nevertheless, the PSR relied upon the 
defendant=s 1994 aggravated robbery conviction contained in paragraph 
42. The record reflects once again that the defendant incorrectly 
points to the 1994 battery conviction. Rather, the court relied upon 
an aggravated robbery conviction in 1994. The defendant was at the 
time 16 years old but the PSR states that he was Awaived to adult status 

13 
 
in Saline County District Court.@ Thus, the defendant was convicted 
as an adult. As a result, this conviction was properly considered 
for purposes of the career offender guideline. See U.S.S.G. ' 4B1.2 
cmt. n. 1(Aprior felony conviction@ includes Aan offense committed 
prior to age eighteen. . .if it is classified as an adult conviction 
under the laws of the jurisdiction in which the defendant was 
convicted@). 
The defendant has also challenged the court=s reliance upon his 
conviction for possession of cocaine contained in paragraph 48 of 
the PSR. The defendant has suggested that the court cannot rely upon 
this conviction because it is a simple possession conviction. The 
court agrees. However, once again, the defendant has overlooked the 
convictions relied upon by the court due to the mis -numbered 
paragraphs. As noted previously, in paragraphs 45, 46 and 47, the 
PSR details three convictions for controlled substances offenses 
that qualify as controlled substances offenses under the career 
offender provisions. The defendant has acknowledged that his 
conviction in 2003 for possession of cocaine with intent within 1000 
feet of a school was properly considered. He, however, has 
overlooked the other two convictions, which were appropriately 
considered by the court at the time of sentencing. 
Accordingly, the record fully supports the court=s determination 
of the defendant as a career offender. The defendant was fully 

14 
 
advised of the convictions that were being considered by the court 
and he made no challenge to them. The court=s reliance upon these 
convictions was entirely proper. 
 V. 
In his motion, the defendant raises another claim concerning 
the government=s filing of the Amended Information prior to trial. 
This claim is also untimely and procedurally barred for the 
aforementioned reasons. It also lacks me rit. The defendant has 
argued that the Amended Information was ineffective to confer 
jurisdiction upon the court to sentence him as a career offender. 
He asserts that it alleged only one conviction, not the two 
convictions required for career offender status. 
The defendant is once again mistaken. His belief that the 
Amended Information has some impact upon a later determination that 
he is a career offender under the Guidelines is simply incorrect. 
The Amended Information was filed solely for th e purpose of 
increasing the statutory sentences set forth in 21 U.S.C. ' 841(b). 
The government was not obligated to provide the defendant with any 
notice of the qualifying convictions it intended to rely upon before 
the court could exercise its discretio n to find that a defendant 
qualifies as a career offender under the Guidelines. See United 
States v. Washington , 358 Fed. Appx. 309, 314 (3 rd Cir. 
2009)(A[Defendant=s] claim that his sentence is illegal because of 

15 
 
the government=s failure to file a ' 851 notice is frivolous. The 
notice is required only if the government seeks a sentence beyond 
the statutory maximum, and is not required if the government requests 
the court to sentence the defendant as a career offender under U.S. 
Sentencing Guidelines Manual ' 4B1.1.@); Young v. United States, 936 
F.2d 533, 536 (11th Cir.1991)(Athe Government does not have to follow 
the notice requirements of section 851 in order to use a defendant=s 
prior convictions to enhance his sentence under the Guidelines as 
a career offender, so long as the enhanced sentence still falls within 
the permissible statutory range@); United States v. Spence, 450 F.3d 
691, 695 (7th Cir. 2006)(Section 851 Adoes not apply when the district 
court sentences a defendant under the guidelines to an increased 
sentence within the statutory range.@). 
 VI. 
Finally, the court finds no merit to defendant=s last argument 
that the court lacks jurisdiction to sentence him as a career offender 
because the court erroneously applied U.S.S.G. ' 4B1.1. As pointed 
out by the government, this claim fails for a variety of reasons. 
First, the misapplication of an advisory guideline does not implicate 
the court=s subject matter jurisdiction. Second, this contention is 
untimely even though it raises a jurisdictional issue. See United 
States v. Card, ____ Fed.Appx. ____, 2013 WL 4427203, at *1 (10th Cir. 
Aug. 20, 2013)(AAssuming [petitioner] is permitted to challenge the 

16 
 
district court=s jurisdiction for the first time in a ' 2255 motion, 
the motion must still be timely.@); BarretoBBarreto v. United States, 
551 F.3d 95, 100 (1st Cir. 2008) (ANothing in the language of ' 2255 
suggests that jurisdictional challenges are exempt from the one-year 
limitations period. To the contrary, ' 2255(f) explicitly states that 
the limitations period >shall apply = to all motions made under ' 
2255.@). Third, as already explained, this argument has no merit 
because the record clearly shows that the defendant had four 
qualifying prior convictions for application of the career offender 
guideline. 
VII. 
In his reply, the defendant has requested that the court 
consider his motion under 28 U.S.C. ' 2241 if it finds that he is not 
entitled to relief under ' 2255. This request shall be denied. The 
court fails to find that the defendant can proceed under ' 2241 to 
raise the instant claims. See Abernathy v. Wandes, 713 F.3d 538, 
544 (10th Cir. 2013)(petitioner could not proceed under ' 2241 to raise 
claim that he was actually innocent of sentence enhancement). 
 VIII. 
In sum, the defendant=s motion is barred by the one-year statute 
of limitations and procedural default. Even assuming that 
defendant=s claims were timely and not procedurally defaulted, the 
court would find that they lack merit. Accordingly, the defendant=s 

17 
 
motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. 
' 2255 shall be denied. 
IT IS THEREFORE ORDERED that defendant=s motion to vacate, set 
aside or correct sentence pursuant to 28 U.S.C. ' 2255 (Doc. # 112) 
be hereby denied. 
IT IS SO ORDERED. 
Dated this 30th day of October, 2013, at Topeka, Kansas. 
 
 
 
 s/Richard D. Rogers 
United States District Judge 
 
 

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