United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
C. REEVES UNITED STATES DISTRICT JUDGE
David Samarripa is currently confined at the United States
Penitentiary-McCreary (“USP-McCreary”) in Pine
Knot, Kentucky. Proceeding without a lawyer, Samarripa has
filed an amended petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 and has paid the filing
fee. [Record No. 9, 10]. Pursuant to 28 U.S.C. § 2243,
the Court is authorized to screen a petition for a writ of
habeas corpus before directing the respondent to show cause
why the writ should not be granted. 28 U.S.C. § 2243.
For the reasons set forth below, Samarripa's petition
will be denied.
5, 2011, Samarripa was charged in the United States District
Court for the Western District of Texas in counts one and two
of a three-count indictment with: (1) conspiring to possess
with intent to distribute five kilograms or more of a mixture
and substance containing a detectable amount of cocaine, in
violation of 21 U.S.C. §§ 846 and
841(b)(1)(A)(count one); and (2) conspiring to possess with
intent to distribute one kilogram or more of a mixture and
substance containing a detectable amount of heroin, in
violation of 21 U.S.C. §§ 846 and
841(b)(1)(A)(count two). See United States v.
Samarripa, No. 1:11-cr-360-SS-14 (W.D. Tex. 2011) at
Record No. 2. The United States filed a notice of enhanced
penalties on August 3, 2011, pursuant to 21 U.S.C. § 851
based on Samarripa's prior 2004 felony drug conviction
for possession of heroin in the 331st Judicial District Court
of Travis County, Texas. Id. at Record No. 251.
pled guilty without a plea agreement to counts one and two of
the superseding indictment on September 7, 2011. Id.
at Record No. 388, 412. On December 9, 2011, Samarripa was
sentenced to a 240-month term of imprisonment pursuant to the
mandatory minimum required by 21 U.S.C. § 841(b)(1)(A),
to be followed by a 10-year term of supervised release.
Additionally, he was ordered to pay a $200 special assessment
fee. Id. at Record No. 496, 609.
did not take a direct appeal. However, on November 7, 2012,
he filed a motion to vacate, set aside or correct sentence
pursuant to 28 U.S.C. § 2255, arguing that his counsel
was ineffective for various reasons, including for failing to
object to the government filing of the § 851 notice,
which increased his sentence to a mandatory minimum of 20
years and a statutory maximum of life imprisonment.
Id. at Record No. 627. The District Court denied
Samarripa's § 2255 motion, id. at Record
No. 632, 638, 639, and Samarripa's appeal of that
decision was dismissed as untimely by the United States Court
of Appeals for the Fifth Circuit. Id. at Record No.
704. Samarripa's subsequent attempts to challenge his
sentence in the United States District Court for the Western
District of Texas have also been denied or dismissed.
Id. at Record No. 709, 721, 794 (multiple successive
§ 2255 motions); Record No. 726, 787 (motions to reduce
sentence pursuant to United States Sentencing Commission
Amendment 782); Record No. 800 (petition for Writ of Audita
most recent attempt to challenge his sentence via a
motion seeking authorization to file a successive § 2255
petition based upon the United States Supreme Court's
holding in Mathis v. United States, 136 S.Ct. 2243
(2016), was denied by the Fifth Circuit Court of Appeals.
In re: David Samarripa, No. 17:50192 (5th Cir.
2017). In holding that Samarripa did not make the required
prima facie showing, the Court explained that
“Mathis was decided on direct appeal based on
existing precedent and did not announce a new constitutional
rule made retroactive to cases on collateral review.”
Id. at April 19, 2017 Order, p. 2 (citing
Mathis, 136 S.Ct. at 2247-57; In re Lott,
838 F.3d 522, 523 (5th Cir. 2016)).
is now attempting to obtain relief from his sentence in this
Court by filing an amended petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. [Record No. 10].
Samarripa argues that, under the categorical approach set
forth in Descamps v. United States, 133 S.Ct. 2276
(2013), and Mathis, his prior Texas drug offense
would no longer meet the federal definition of a
“felony drug offense, ” thus his sentence was not
subject to the statutory sentencing range provided by 21
U.S.C. § 841(b)(1)(A). [Record No. 10 at p. 5].
Samarripa seeks to be resentenced under the United States
Sentencing Guidelines (“U.S.S.G.”), absent the
statutory increase provided by § 841(b)(1)(A)'s
recidivist clause. [Id.] However, as explained more
fully below, Samarripa is not entitled to relief.
federal prisoner may not generally use a § 2241 petition
to challenge the enhancement of his sentence. 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 may typically
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
file a motion under § 2255. Peterman, 249 F.3d
at 461 (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
does not satisfy the first criterion because he was sentenced
in 2011, long after Booker was decided. In addition,
neither Descamps nor Mathis may be used to
invoke the savings clause: both decisions relate solely to
the process by which a district court evaluates
prior offenses to determine if they qualify as predicates;
they did not involve interpretation of the substantive reach
of a statute such that a defendant might find himself
convicted of conduct that the law does not criminalize.
Bousley v. United States, 523 U.S. 614, 620-21
(1998) (citing Davis v. United States, 417 U.S. 333,
claims are also without substantive merit. The authorities
cited by Samarripa are inapposite because his sentence was
not enhanced under the career offender provision of U.S.S.G.
§ 4B1.1. Instead, he was sentenced to a mandatory term
of 240 months imprisonment pursuant to 21 U.S.C. §
841(b)(1)(A) because he had previously committed a
“felony drug offense” as defined in 21 U.S.C.
§ 802(44). Samarripa, No. 1:11-cr-360-SS-14
(W.D. Tex. 2011) at Record No. 251, 537, 609. Determining
whether a predicate qualifies as a prior “drug
trafficking offense” under § 4B1.1 may involve a
complex assessment of whether the prior offense involved the
manufacture, importation, distribution, or possession with
intent to do one of these things within the meaning of §
4B1.2(b). United States v. Hinkle, 832 F.3d 569,
572-73 (5th Cir. 2016). But assessing whether a predicate is
a “felony drug offense” under 21 U.S.C. §
802(44) is quite simple: the offense must be punishable by
more than one year in prison and the sentence imposed under
any statute “that prohibits or restricts conduct