United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
C. Reeves, United States District Judge
Shawon Hickman has filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241, seeking to
challenge the enhancement of his federal sentence. [Record
Nos. 1, 4] The Court now conducts an initial screening of
Hickman's petition. 28 U.S.C. § 2243; Alexander
v. Northern Bureau of Prisons, 419 F. App'x 544, 545
(6th Cir. 2011). As explained more fully below, the Court
will deny the petition because Hickman may not assert his
claims under § 2241 and because they are without merit.
was indicted in June 2007 by a federal grand jury in
Louisville, Kentucky, for conspiracy to possess with intent
to distribute 500 or more grams of cocaine in violation of 21
U.S.C. §§ 841(a)(1), and 846. In August 2008,
Hickman signed a written agreement to plead guilty to the
offense and in which he acknowledged the potential
applicability of the career offender enhancements under 21
U.S.C. § 841(b)(1)(A) and under the United States
Sentencing Guidelines. The United States agreed not to file a
§ 851 notice, which would have increased Hickman's
guideline range to 262 to 327 months imprisonment. However,
Hickman remained subject to the career offender enhancement
under § 4B1.1 of the sentencing guidelines because he
had one prior conviction for first degree assault under KRS
§ 508.010 and two prior convictions for trafficking in a
controlled substance under KRS § 218A.1412.
plea agreement further provided that Hickman:
… knowingly and voluntarily waive[d] the right (a) to
directly appeal his conviction … and (b) to contest or
collaterally attack his conviction and the resulting
sentence pursuant to 28 U.S.C. § 2255 or
otherwise on any grounds whatsoever, including
ineffective assistance of counsel.
trial court sentenced Hickman in November 2008 to 188
months' of imprisonment (the bottom of the guideline
range). That range was calculated, in part, based on the
parties' agreed-upon determination that Hickman's
prior convictions rendered him a “career
offender” pursuant to U.S.S.G. § 4B1.1(a). Hickman
subsequently filed a motion to vacate his conviction and
sentence under 28 U.S.C. § 2255, but the trial court
dismissed that motion in light of the collateral attack
waiver of the plea agreement. The Sixth Circuit denied a
Certificate of Appealability, concluding that Hickman
knowingly and voluntarily executed the plea agreement and
waiver. United States v. Hickman, No.
3:07-CR-77-01-H (W.D. Ky. 2007). The Sixth Circuit has twice
denied Hickman permission to file second or successive
motions under § 2255.
argues in his current petition that, following the Supreme
Court's decision in Mathis v. United States, __
U.S. __, 136 S.Ct. 2243 (2016), his prior convictions for
first degree assault and trafficking in a controlled
substance no longer qualify as predicate offenses to enhance
his federal sentence. [Record No. 4-1 at 2-6] However,
Hickman's petition will be denied because he waived his
right to collaterally attack his conviction or sentence in
his plea agreement, a waiver the Sixth Circuit has already
concluded is valid and enforceable.
waivers apply to § 2241 proceedings. 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); Solis-Caceres v.
Sepanek, No. 13-21-HRW, 2013 WL 4017119, at *3 (E.D. Ky.
Aug. 6, 2013) (collecting cases).
this were not the case, Hickman's reliance upon Hill
v. Masters, 836 F.3d 591 (6th Cir. 2016), would be
misplaced. A § 2241 petition may not be used to
challenge a sentence, as opposed to a conviction. 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.”). Hill created a
singularly narrow exception to that rule, but limited that
exception to sentences imposed under the mandatory guidelines
regime before the Supreme Court's decision in United
States v. Booker, 543 U.S. 220 (2005). Id. at
599-600. Hickman was sentenced in 2008, long after
Booker was decided and under a discretionary
guidelines regime. Therefore, he may not pursue his
sentencing challenge under § 2241.
claims are also without merit. With respect to his prior
conviction for assault under Kentucky law, assault is not one
of the four enumerated offenses in § 4B1.2(a)(2) and,
therefore, Mathis has no application in determining
whether that offense constitutes a “crime of
violence.” Rather - as the Sixth Circuit has already
advised Hickman - his assault conviction constitutes a
violent felony under the “use of force” clause
found in § 4B1.2(a)(1). In re: Hickman, No.
15-6273 (6th Cir. 2016) (citing United States v.
Colbert, 525 F. App'x 364, 368-70 (6th Cir. 2013),
and United States v. Knox, 593 F. App'x 536,
537-38 (6th Cir. 2015)).
Hickman's two Kentucky convictions for drug trafficking
unquestionably qualify as “controlled substance
offenses” under § 4B1.2(b). That section defines a
“controlled substance offense” as one that
prohibits the “manufacture, import, export,
distribution, or dispensing of a controlled substance”
or “possession of a controlled substance … with
intent manufacture, import, export, distribute, or
dispense.” KRS § 218A.1412 tracks the language of
§ 4B1.2(b) closely: it prohibits
“trafficking” in a controlled substance, which
means to “manufacture, distribute, dispense, sell,
transfer, or possess with intent to manufacture, distribute,
dispense, or sell.” KRS § 218A.010(55). The terms
of both provisions are coextensive save for the addition of
“sell” and “transfer” in the Kentucky
statute, which connote nothing more than the
“distribution” or “dispensing” in
found in § 4B1.2(b). Thus, Hickman's drug
trafficking convictions constitute “controlled
substance offenses, ” and the § 4B1.1 enhancement
was properly applied. United States v. Knox, No.
11-60-DLB-EBA, 2016 WL 7320883, at *2-3 (E.D. Ky. Dec. 15,
2016); Jones v. Holland, No. 5: 13-66-GFVT, 2013 WL
11079776, at *1-2 (E.D. Ky. March 26, 2013).
reliance on United States v. Hinkle, 832 F.3d 569,
575-76 (5th Cir. 2016), is also misplaced. Applying
Mathis, the Fifth Circuit stated (without
explanation) that Texas' drug trafficking statute,
V.T.C.A. § 481.112(a), criminalizes a broader range of
conduct than that described in § 4B1.2(b) and therefore
cannot constitute a predicate offense. Hinkle, 832
F.3d at 574-76. But critical to that conclusion was the fact
that V.T.C.A. § 481.002(8) defines
“delivery” of drugs to include an “offer to
sell” them, id. at 572-73, broadening language
that is nowhere to be found in the Kentucky statute under
which Hickman was convicted. Even if Hinkle were
persuasive, it is plainly distinguishable on its facts.
summary, Hickman's petition fails to establish any basis
for habeas ...