United States District Court, E.D. Kentucky, Southern Division, London
TERRENCE A. THIERRY, Petitioner,
J. RAY ORMOND, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
C. Reeves, United States District Judge.
Terrence Thierry is confined at the United States
Penitentiary - McCreary in Pine Knot, Kentucky. Proceeding
without a lawyer, Thierry has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. [Record No.
1]. For the reasons set forth below, the Court Thierry's
petition will be denied.
2008, Thierry pled guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g). The maximum
sentence for violating § 922(g) is usually 10 years in
prison. See 18 U.S.C. § 924(a)(2). However, the
United States District Court for the Western District of
Louisiana determined that Thierry had at least three previous
convictions for either a violent felony or a serious drug
offense that were committed on occasions different from one
another. As a result, he was subject to a mandatory minimum
sentence of 15 years in prison pursuant to the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e).
The district court sentenced Thierry to the 15-year minimum
period of incarceration. See United States v. Terrence
Thierry, No. 2:07-cr-20055 (W.D. La. 2008).
challenged his sentence on direct appeal, but the United
States Court of Appeals for the Fifth Circuit affirmed that
sentence. See id. Thierry then moved to vacate his
sentence pursuant to 28 U.S.C. § 2255. However, the
district court denied that motion as untimely. It appears
that Thierry did not appeal that decision. See id.
has now filed a § 2241 petition with this Court. [Record
No. 1]. While Thierry's petition is difficult to follow,
he appears to be arguing that two of his pre-2008 convictions
were “consolidated for sentencing” and, as a
result, “he does not have the required number of
predicate offenses . . . to be classified and sentenced as an
ACCA offender.” [Record No. 1-1 at 5, 9]. Thierry
claims that, because the maximum sentence for violating
§ 922(g) is usually 10 years in prison, his 15-year
sentence is “illegal.” [Record No. 1-1 at 11].
§ 2241 petition constitutes an impermissible collateral
attack on his sentence. While a federal prisoner may
challenge the legality of his sentence through a direct
appeal and 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). 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). Simply put,
Thierry cannot use a § 2241 petition as a way of
challenging his sentence.
Thierry argues that § 2255(e)'s savings clause
permits him to attack his sentence through a § 2241
petition. [Record No. 1-1 at 12]. This argument, however, is
without merit. The savings clause provides that, “if
section 2255 is inadequate or ineffective to test the
legality of his detention . . . a federal prisoner may also
challenge the validity of his . . . sentence under §
2241.” Bess v. Walton, 468 F. App'x 588,
589 (6th Cir. 2012) (internal citations and quotation marks
omitted). And it is also true that, in Hill v.
Masters, 836 F.3d 591 (6th Cir. 2016), the Sixth Circuit
held that, under certain circumstances, a prisoner may
challenge a sentence enhancement in a § 2241 petition.
However, the Sixth Circuit expressly limited those
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.
Hill, 836 F.3d at 599-600.
circumstances do not apply here. As an initial matter, the
district court sentenced Thierry in 2008-well after the
Supreme Court decided Booker. More importantly,
Thierry has not identified a subsequent, retroactive change
in statutory interpretation by the Supreme Court that reveals
that one of his previous convictions is not a predicate
offense for purposes of the career-offender enhancement.
Thierry's reliance on § 2255(e)'s savings clause
is therefore unavailing. Ultimately, it appears that Thierry
is simply raising an argument that he either made or could
have made in his previously-denied § 2255 motion. And
that is not proper in a § 2241 petition. Accordingly, it
1. Thierry's petition for a writ of habeas corpus [Record
No. 1] is DENIED.
2. This action is DISMISSED and
STRICKEN from the ...