United States District Court, E.D. Kentucky, Southern Division, Pikeville
JOE A. RAMIREZ, Petitioner,
GREGORY KIZZIAH, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT.
Joe A. Ramirez has filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 and has paid
the filing fee. [R. 1, 7]. The Court conducts an initial
review of Ramirez'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.
November 9, 2006, pursuant to a plea agreement with the
United States, Ramirez pled guilty to possession with intent
to distribute methamphetamine and aiding and abetting in
violation of 21 U.S.C. §§ 841(a)(1) &
841(b)(1)(B)(viii) and 18 U.S.C. § 2. See United
States v. Ramirez, No. 6:06-cr-25-C-BG-1 (N.D. Tex.
2006). As part of that agreement, Ramirez expressly waived
his right to appeal from either his conviction or his
sentence, as well as “his right to contest his
conviction and sentence in any collateral proceeding,
including proceedings under 28 U.S.C. § 2241 and 28
U.S.C. § 2255.” Id. at R. 196, p. 6.
However, Ramirez reserved the rights “(a) to bring a
direct appeal of (i) a sentence exceeding the statutory
maximum punishment, (ii) an upward departure or variance from
the guideline range deemed applicable by the district court,
or (iii) an arithmetic error at sentencing, and (b) a claim
of ineffective assistance of counsel.” Id.
to Ramirez, he was determined to be a career offender
pursuant to § 4B1.1 of the United States Sentencing
Guidelines because he had at least two prior felony
convictions for controlled substance offenses. [R. 1-1 at p.
3-4, 6]. On February 7, 2007, the United States District
Court for the Northern District of Texas sentenced Ramirez to
a total of 293 months of in prison to run consecutive with
any sentence imposed in Case No. 05-849, Eastland County
Court and Case No. CR-06-21145 pending in the 91st District
Court, Eastland County, Texas, to be followed by a supervised
release term of 4 years. See Ramirez, No.
6:06-cr-25-C-BG-1 at R. 235, 236.
February 12, 2007, Ramirez filed a notice of appeal to the
United States Court of Appeals for the Fifth Circuit from the
judgment of conviction and sentence in his case. Id.
at R. 239. This appeal was dismissed as frivolous in 2008.
Id. at R. 276, 277.
2009, Ramirez filed a motion under 28 U.S.C. § 2255
seeking relief from his sentence on the grounds of
ineffective assistance of counsel, as well as arguing that
the Court erred in imposing his sentence to run consecutively
to a yet-to-be imposed state sentence. Id. at R.
294; Ramirez v. United States, No. 6:09-cv-97-C
(N.D. Tex. 2009). On August 31, 2011, Ramirez's §
2255 motion was dismissed as time-barred, although the Court
also indicated that, were it not time-barred, the motion
should be denied on the merits. Id. at R. 11.
December 2014, Ramirez filed a motion to reduce his sentence
pursuant to 18 U.S.C. § 3582(c) based upon Amendment 782
to § 1B1.10 of the United States Sentencing Guidelines.
See Ramirez, No. 6:06-cr-25-C-BG-1 at R. 333. In May
2016, this motion was denied, with the Court explaining that
Ramirez's sentence of 293 months imprisonment “was
fair in light of the factors in Title 18, United States Code,
Section 3553(a), including his criminal history, offense
conduct or relevant conduct, and the post-sentencing conduct.
Therefore, the defendant shall not be granted a further
reduction in his sentence.” Id. at R. 367.
Ramirez appealed this order to the Fifth Circuit Court of
Appeals, id. at R. 368, but this appeal was
dismissed for want of prosecution. Id. at R. 374.
March 2016, Ramirez filed a second motion under 28 U.S.C.
§ 2255 seeking relief from his sentence, again on the
grounds of ineffective assistance of counsel.
Ramirez, No. 6:06-cr-25- C-BG-1 at R. 363;
Ramirez v. United States, No. 6:16-cv-17-C (N.D.
Tex. 2016). Among his arguments, Ramirez argued that counsel
was ineffective for failing to object to the predicate acts
that were the basis for the determination in his Pre-Sentence
Report that Ramirez was a career offender as, according to
Ramirez, he is innocent of these predicate offenses.
According to Ramirez, had counsel objected, it would have
been successful and his sentence would have been 10 years,
rather than the 25-year career offender sentence imposed.
Because Ramirez had previously filed a motion pursuant to 28
U.S.C. § 2255, but had not received permission from the
United States Court of Appeals for the Fifth Circuit to file
a second or successive motion to vacate, the trial court
transferred the matter to the Fifth Circuit. Id. at
R. 3. The Fifth Circuit dismissed Ramirez's authorization
to file a successive § 2255 motion for failure to comply
with a notice issued by that Court. Id. at R. 6.
December 2016, Ramirez filed his petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 in this
Court, arguing that recent decisions issued by the United
States Supreme Court constitute a substantial change in the
law that retroactively affects the sentencing guidelines
applicable to Ramirez “that are in the excess maximum
authorized.” [R. 1-1 at p. 2]. Specifically, Ramirez
states that his petition is filed pursuant to United
States v. Hinkle, 832 F.3d 569 (5th Cir. 2016),
Mathis v. United States, ___ U.S. ___, 136 S.Ct.
2243 (2016), Beckles v. United States, ___ U.S. ___,
137 S.Ct. 886 (2017), Welch v. United States, ___
U.S. ___, 136 S.Ct. 1257 (2016), and Johnson v. United
States, ___ U.S. ___, 135 S.Ct. 2551 (2015). Ramirez
argues that, under these cases, his prior drug convictions in
Texas no longer qualify as either “serious drug
offenses, ” nor do they meet the requirements of a
“controlled substance offense” for purposes of
his classification as a career offender pursuant to §
4B1.1 of the United States Sentencing Guidelines.
petition must be denied. First, Ramirez is barred from
collaterally attacking his conviction or sentence pursuant to
the waiver provision found in his plea agreement. In that
agreement, Ramirez 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 Ramirez pursues here. Solis-Caceres v.
Sepanek, No. 13-21-HRW, 2013 WL 4017119, at *3 (E.D. Ky.
Aug. 6, 2013) (collecting cases). See also 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
Ramirez retained the right to bring a direct appeal of a
sentence exceeding the statutory maximum punishment, an
upward departure or variance in the applicable guideline
range, or an arithmetic error at sentencing, he clearly and
unequivocally waived the right to collaterally attack his
sentence by filing a motion for relief pursuant to 28 U.S.C.
§ 2241. This waiver alone is grounds for dismissal of
even putting aside the waiver, Ramirez is still not entitled
to the relief he seeks. To the extent that Ramirez relies on
the United States Supreme Court decisions in Johnson
and Welch, neither of these cases are applicable
here. In Johnson, the Supreme Court held that the
residual clause of the Armed Career Criminal Act (“the
ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii) is
unconstitutionally vague, and that imposing an increased
sentence under that clause violates the Constitution's
guarantee of due process guaranteed under the Fifth Amendment
of the U.S. Constitution. Johnson, 135 S.Ct. at
2563. In Welch, the Supreme Court held that
Johnson applies retroactively to cases on collateral
review. Welch, 136 S.Ct. at 1265 (2016). Here,
Ramirez alleges that he was determined to be a career
offender pursuant to §§ 4B1.1 and 4B1.2 of the
United States Sentencing Guidelines because he had at least
two prior felony convictions for controlled substance
offenses. [R. 1-1 at p. 3-4, 6]. He does not allege that he
was sentenced under the ACCA, which was the specific
statutory scheme addressed in Johnson. Thus,
Johnson and Welch do not apply to him.
Indeed, in Beckles (another case erroneously relied
upon by Ramirez), the United States Supreme Court held that
the Sentencing Guidelines are not subject to a due process
vagueness challenge, rendering them immune from the very type
of Johnson claim Ramirez attempts to assert against
his Guidelines sentence here. Beckles, 137 S.Ct.
Ramirez may not use a § 2241 petition to assert
Mathis as a ground to challenge the enhancement of
his sentence. A § 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 § 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 § 2241 to seek relief
even when § 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 § 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
§ 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. Ramirez's claim fails to satisfy the
threshold requirement of Hill because he was
sentenced in 2007, two years after Booker rendered