United States District Court, E.D. Kentucky, Southern Division, London
GEORGE A. BREED PETITIONER
SANDRA BUTLER, WARDEN RESPONDENT
MEMORANDUM OPINION AND ORDER
L. Bunning, United States District Judge
Breed is an inmate confined at the Federal Correctional
Institution in Manchester, Kentucky. Proceeding without an
attorney, Breed filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. (Docs. # 1, 4). For the
reasons set forth below, the Court will deny Breed's
2008, Breed pled guilty to two charges-(1) attempting to
possess 500 grams or more of cocaine with the intent to
distribute in violation of 21 U.S.C. § 841(a), and (2)
forcibly assaulting, resisting, opposing, impeding,
intimidating, or interfering with a federal officer in
violation of 18 U.S.C. § 111. See United States v.
Breed, No. 3:07-cr-077-TBR (W.D. Ky. 2008). Breed was
designated a career offender pursuant to section 4B1.1 of the
United States Sentencing Guidelines because he had at least
two prior felony convictions for either a crime of violence
or a controlled substance offense. See Id. Doc. # 47
at 7. Therefore, Breed's advisory sentencing guideline
range was enhanced to 188-235 months in prison. See
Id. Docs. # 69, 71. Despite that designation, he was
sentenced to a below-guideline range sentence of 140 months
imprisonment. See Id. Doc. # 76 at 3.
Breed's statements to the contrary (Doc. # 1 at 2; Doc. #
4 at 2), it does not appear that he ever filed a direct
appeal or moved to vacate his sentence pursuant to 28 U.S.C.
§ 2255. In any event, Breed has now filed a § 2241
petition with this Court. (Docs. # 1, 4). Breed appears to be
arguing that, in light of the Supreme Court's decisions
in Descamps v. United States, 133 S.Ct. 2276 (2013),
and Mathis v. United States, 136 S.Ct. 2243 (2016),
his pre-2008 felony convictions are no longer valid predicate
offenses to subject him to the career-offender enhancement
under the sentencing guidelines. (Docs. # 1, 4).
§ 2241 petition, however, is an impermissible collateral
attack on his sentence. Although a federal prisoner may
challenge the legality of his sentence in a § 2255
motion, he generally may not do so in a § 2241 petition.
See United States v. Peterman, 249 F.3d 458, 461
(6th Cir. 2001) (explaining the distinction between a §
2255 motion and a § 2241 petition). That is because a
§ 2241 petition does not function as an additional or
alternative remedy to the one available under § 2255.
Hernandez v. Lamanna, 16 F. App'x 317, 320 (6th
Cir. 2001). Instead, a § 2241 petition is usually only 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. See Terrell v. United
States, 564 F.3d 442, 447 (6th Cir. 2009). For that
reason, a petitioner generally cannot use a § 2241
petition to challenge the legality of his sentence.
Breed argues that § 2255(e)'s savings clause permits
him to attack his sentence in a § 2241 petition. The
savings clause allows for a § 2241 petition to challenge
the legality of a sentence if § 2255 “is
inadequate or ineffective to test the legality of [the]
detention.” 28 U.S.C. § 2255(e). “Invocation
of the savings clause is restricted to cases where prisoners
can show an intervening change in the law that establishes
their actual innocence.” Bess v. Walton, 468
F. App'x 588, 589 (6th Cir. 2012) (internal quotation
marks and citation omitted). And “[t]he prisoner has
the burden of proving that his remedy under section 2255 is
inadequate or ineffective.” Id.
relies on the Sixth Circuit's recent decision in Hill
v. Masters, 836 F.3d 591 (6th Cir. 2016), to argue that
his remedy under § 2255 is inadequate or ineffective.
But that argument fails. In Hill, the Sixth Circuit
held that, under certain circumstances, a prisoner may
challenge a sentence enhancement in a § 2241 petition.
See Hill, 836 F.3d at 599-600. However, the Sixth
Circuit expressly limited those circumstances to
a narrow subset of § 2241 petitions: (1) prisoners who
were sentenced under the mandatory guidelines regime
pre-United States v. Booker, 543 U.S. 220 . . .
(2005), (2) who were foreclosed from filing a successive
petition under § 2255, and (3) when a subsequent,
retroactive change in statutory interpretation by the Supreme
Court reveals that a previous conviction is not a predicate
offense for a career-offender enhancement.
Id. at 599-600.
circumstances do not apply here. The trial court sentenced
Breed in 2009- well after the Supreme Court decided
Booker and held that the sentencing guidelines were
advisory. And notably, in this case, the trial court
sentenced Breed to a sentence well below the
applicable guidelines range, further distinguishing his case
from Hill. In short, Breed's argument regarding
§ 2255(e)'s savings clause and his reliance on
Hill are unavailing. Accordingly, IT IS ORDERED
Breed's petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241 (Doc. #1, #4) is DENIED;
This action is DISMISSED and STRICKEN from the ...