United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
C. Reeves, United States District Judge
David Romo has filed an original and two amended petitions
for a writ of habeas corpus pursuant to 28 U.S.C. §
2241. [Record Nos. 1, 10, 12] This matter is before the Court
to conduct an initial screening. 28 U.S.C. § 2243;
Alexander v. Northern Bureau of Prisons, 419 F.
App'x 544, 545 (6th Cir. 2011). The Court will deny the
requested relief and dismiss the petitions because Romo's
claims cannot be asserted under 28 U.S.C. § 2241 and
because they lack merit.
was indicted in Austin, Texas, in July 2011 for his role in a
large-scale drug trafficking ring operated by the Texas
Mexican Mafia. The government filed a notice pursuant to 21
U.S.C. § 851 that Romo was subject to an enhanced
sentence because he had up to 17 prior convictions dating
back to 1972. The prior convictions included illegal
possession of firearms, drug possession, and drug
trafficking. As a result, Romo faced a mandatory minimum
sentence of twenty years to life imprisonment under 21 U.S.C.
pled guilty (without a written plea agreement) to conspiracy
to distribute cocaine and heroin in violation of 21 U.S.C.
§ 846. The trial court imposed a 280-month sentence in
December 2011. Romo did not appeal, and the trial court later
denied his initial motion filed pursuant to 28 U.S.C. §
2255 as untimely. In November 2015, the trial court granted
an agreed motion to reduce Romo's sentence to 240 months
of imprisonment pursuant to Amendment 782 to the Sentencing
Guidelines. United States v. Romo, No. 1:
11-CR-360(12) (E.D. Tex. 2011).
separate criminal prosecution in this Court, on May 27, 2015,
Romo pled guilty to a single count of conspiracy to
distribute heroin in violation of 21 U.S.C. § 846. As
part of his plea agreement with the government, Romo
expressly waived his right to appeal or collaterally attack
his conviction or sentence except on grounds of ineffective
assistance of counsel. Romo was sentenced in August 2015 to
235 months of imprisonment to run concurrently with his prior
federal sentence from Texas, a sentence enhanced pursuant to
the career offender provision in U.S.S.G. § 4B1.1.
United States v. Romo, No. 6:14-CR-21-GFVT (E.D. Ky.
argues in his current petition that the sentence enhancement
imposed in Texas pursuant to 21 U.S.C. § 841(b)(1)(A)
violates his due process and equal protection rights because
his prior convictions were not evaluated as possible
predicate offenses using the same “categorical
approach” described in Mathis v. United
States, __ U.S. __, 136 S.Ct. 2243 (2016), which is
applied to evaluate prior convictions for possible sentence
enhancements imposed pursuant to 18 U.S.C. § 924(e)(2).
habeas corpus petition filed pursuant to § 2241 may be
used to challenge 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). If a federal
prisoner instead wishes to challenge the legality of his
federal conviction or sentence, he must do so by filing a
motion for post-conviction relief under 28 U.S.C. § 2255
in the court that convicted and sentenced him. Capaldi v.
Pontesso, 135 F.3d 1122, 1123 (6th Cir. 2003). A habeas
corpus petition pursuant to 28 U.S.C. § 2241 may not be
used for this purpose because it 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).
“savings clause” of 28 U.S.C. § 2255(e)
creates an extraordinarily narrow exception to this
prohibition if the remedy afforded by § 2255 is
“inadequate or ineffective” to test the legality
of the prisoner's detention. Truss v. Davis, 115
F. App'x 772, 773-74 (6th Cir. 2004). A motion under
§ 2255 is not “inadequate or ineffective”
simply because the prisoner's time to file a § 2255
motion has passed; he did not file a § 2255 motion; or
he did file such a motion and was denied relief. Copeland
v. Hemingway, 36 F. App'x 793, 795 (6th Cir. 2002);
Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002)
(holding that § 2241 is available “only when a
structural problem in § 2255 forecloses even one round
of effective collateral review ...”). 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).
properly invoke the savings clause, the petitioner must be
asserting a claim that she is “actual innocent”
of the underlying offense by showing that after the
petitioner's conviction became final, the Supreme Court
re-interpreted the substantive terms of the criminal statute
under which she was convicted in a manner that establishes
that her conduct did not violate the statute. Wooten v.
Cauley, 677 F.3d 303, 307-08 (6th Cir. 2012) (citing
United States v. Peterman, 249 F.3d 458, 461-62 (6th
Cir. 2001)); Hayes v. Holland, 473 F. App'x 501,
501-02 (6th Cir. 2012) (“To date, the savings clause
has only been applied to claims of actual innocence based
upon Supreme Court decisions announcing new rules of
statutory construction unavailable for attack under section
2255.”). The Supreme Court's newly-announced
interpretation must, of course, be retroactively applicable
to cases on collateral review. Wooten, 677 F.3d at
petition will be denied because his claims are not ones of
actual innocence, and are not cognizable in a § 2241
petition. Romo asserts that the enhancement of his sentence
pursuant to 21 U.S.C. § 841(b)(1)(A) is unconstitutional
because it was not the product of the categorical approach
applicable to enhancements under 18 U.S.C. § 924(e)(2).
First, this is not a claim based upon statutory
interpretation but a constitutional claim which falls outside
the purview of § 2241. Second, it is not a claim based
upon Mathis at all. Instead, it is predicated on the
categorical approach, a doctrine established more than a
decade before Romo's sentence was imposed. See Taylor
v. United States, 495 U.S. 575, 600-601 (1990);
Shepard v. United States, 544 U.S. 13, 26 (2005).
Thus, it is a claim he could and must have asserted before
the trial court, upon direct appeal, or in a motion pursuant
to 28 U.S.C. § 2255. As a result, his claims may not be
pursued under § 2241.
also challenges his sentence. The decidedly narrow scope of
relief under § 2241 applies with particular force to
sentencing challenges. 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.
claim fails to satisfy at least the first and third
requirements of Hill. Romo was sentenced in 2011,
long after Booker was decided, under a discretionary
guidelines regime. And as noted above, Romo's claims are
not based upon any recent Supreme Court decision. Instead, he
seeks to challenge the limited applicability of the
categorical approach on constitutional grounds, a situation
in effect for decades before his ...