United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE.
Isaiah Fisher has filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1] and
has paid the filing fee [R. 5]. The Court conducts an initial
review of Fisher's petition. 28 U.S.C. § 2243;
Alexander v. Northern Bureau of Prisons, 419 F.
App'x 544, 545 (6th Cir. 2011). For the reasons set forth
below, the Court must deny relief.
2008, a federal jury in South Bend, Indiana found Fisher
guilty of armed bank robbery in violation of 18 U.S.C. §
2113(a), (d), and he was sentenced to 104 months imprisonment
to be followed by three years of supervised release.
United States v. Fisher, No. 3: 07-CR-46-RLM-CAN-1
(N.D. Ind. 2007).
completed his prison term, but while on supervised release
committed another armed bank robbery in 2015. Fisher agreed
to plead guilty to a single count of violating Section
2113(a) in exchange for the dismissal of other charges. As
part of that agreement, Fisher expressly waived his right to
challenge any aspect of either his conviction or his
sentence, including “the manner in which my conviction
or my sentence was determined or imposed, ” whether by
way of direct appeal or in any post-conviction proceeding,
including but not limited to 28 U.S.C. § 2255. Because
Fisher had previously committed at least two violent
felonies, he was sentenced under the career offender
provisions of the Sentencing Guidelines to 188 months
imprisonment. United States v. Fisher, No. 3:
15-CR-39-RLM-CAN-1 (N.D. Ind. 2015).
2016, Fisher filed a motion under Section 2255 seeking relief
from his sentence pursuant to Johnson v. United
States, ___ U.S. ___, 135 S.Ct. 2551 (2015). However,
the trial court summarily denied that motion in July 2016
based upon the collateral attack waiver; because
Johnson was decided before Fisher pled guilty; and
because Fisher's prior offenses for burglary and armed
robbery were valid predicate offenses under U.S.S.G. §
4B1.2(a)(1), (2) as an enumerated offense and under the
“use of force” prong, respectively. The Seventh
Circuit denied Fisher a certificate of appealability.
months later, Fisher filed his petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 in this Court. In
it, he reasserts his claim under Johnson that his
prior state conviction for burglary did not qualify as a
valid predicate offense. [R. 1 at 2-3] He also asserts that
his 2007 armed robbery conviction did not constitute a
violent felony in light of Mathis v. United States,
___ U.S. ___, 136 S.Ct. 2243 (2016). In a subsequent
“supplement” to his petition, Fisher abandoned
his Johnson claim. [R. 11]
petition must be denied for several reasons, but the Court
limits its discussion to the two most obvious and clear
grounds. First, Fisher is barred from collaterally attacking
his conviction or sentence pursuant to the waiver provision
found in his plea agreement. In that agreement, Fisher
expressly and unequivocally waived his right to either appeal
his conviction or sentence or to collaterally attack either
of them in any post-conviction proceeding. Such waivers are
enforceable in habeas proceedings under § 2241, and
preclude the assertion of the very arguments Fisher pursues
here. Solis-Caceres v. Sepanek, No. 13-21-HRW, 2013
WL 4017119, at *3 (E.D. Ky. Aug. 6, 2013) (collecting cases);
Muse v. Daniels, 2016 WL 1163836, at *1 (7th Cir.
Feb. 24, 2016) (holding that a collateral attack waiver
“would apply equally in a proceeding under § 2241,
had not § 2255(e) taken precedence, for § 2241 is a
form of collateral attack.”); Muller v.
Sauers, 523 F. App'x 110, 112 (3d Cir. 2013)
(“Muller's plea agreement included a waiver of
collateral-attack rights ‘in any post-conviction
proceeding, including-but not limited to-any proceeding under
28 U.S.C. § 2255.' Therefore, his plea agreement
forecloses relief pursuant to § 2241 …”);
Johnson v. Warden, 551 F. App'x 489, 491 (11th
Cir. 2013); Rivera v. Warden, FCI, Elkton, 27 F.
App'x 511, 515 (6th Cir. 2001); United States v.
Chavez-Salais, 337 F.3d 1170, 1172 (10th Cir. 2003)
(“The conventional understanding of ‘collateral
attack' comprises challenges brought under, for example,
28 U.S.C. § 2241, 28 U.S.C. § 2254, 28 U.S.C.
§ 2255, as well as writs of coram nobis.”)
Fisher may not use a Section 2241 petition to assert
Mathis as a ground to challenge the enhancement of
his sentence. A Section 2241 petition may only be used as a
vehicle for challenges to actions taken by prison officials
that affect the manner in which the prisoner's sentence
is being carried out, such as computing sentence credits or
determining parole eligibility. Terrell v. United
States, 564 F.3d 442, 447 (6th Cir. 2009). A federal
prisoner who instead wishes to challenge the legality of his
conviction or sentence must use a motion under Section 2255.
United States v. Peterman, 249 F.3d 458, 461 (6th
Cir. 2001) (explaining the distinction between permissible
uses for a § 2255 motion and a § 2241 petition).
The prisoner may not resort to Section 2241 to seek relief
even when Section 2255 is not presently
“available” to him, whether because he filed a
timely motion and was denied relief; he did not file a timely
§ 2255 motion; or he filed an untimely motion.
Copeland v. Hemingway, 36 F. App'x 793, 795 (6th
Cir. 2002). In other words, prisoners cannot use a habeas
petition under § 2241 as yet another “bite at the
apple.” Hernandez v. Lamanna, 16 F. App'x
317, 360 (6th Cir. 2001).
decidedly narrow scope of relief under Section 2241 applies
with particular force to challenges not to convictions, but
to the sentence imposed. Peterman, 249 F.3d at 462;
Hayes v. Holland, 473 F. App'x 501, 502 (6th
Cir. 2012) (“The savings clause of section 2255(e) does
not apply to sentencing claims.”). In Hill v.
Masters, 836 F.3d 591 (6th Cir. 2016), the Sixth Circuit
articulated a very narrow exception to this general rule,
permitting a challenge to a sentence to be asserted in a
Section 2241 petition, but only where (1) the
petitioner's sentence was imposed when the Sentencing
Guidelines were mandatory before the Supreme Court's
decision in United States v. Booker, 543 U.S. 220
(2005); (2) the petitioner was foreclosed from asserting the
claim in a successive petition under § 2255; and (3)
after the petitioner's sentence became final, the Supreme
Court issued a retroactively applicable decision establishing
that - as a matter of statutory interpretation - a prior
conviction used to enhance his federal sentence no longer
qualified as a valid predicate offense. Hill, 836
F.3d at 599-600. Fisher's claim fails to satisfy the
threshold requirement of Hill because he was
sentenced in 2015, a decade after Booker rendered
the Sentencing Guidelines advisory rather than mandatory.
Fisher's claim therefore falls outside the decidedly
narrow exception set forth in Hill, and his
sentencing claim therefore does not fall within the narrow
scope of Section 2255(e)'s savings clause.
Peterman, 249 F.3d at462. His petition must
therefore be denied.
IT IS ORDERED that:
Fisher's motion to expedite [R. 17] is
Fisher's petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241 [R. 1] is DENIED.
action is DISMISSED and