United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT EASTERN
DISTRICT OF KENTUCKY
Arnulfo Torres Perez has filed an original and two amended
petitions for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. [R. 1, 8-1, 12] This matter is before the Court
to conduct an initial screening of Perez's second amended
petition. 28 U.S.C. § 2243; Alexander v. Northern
Bureau of Prisons, 419 F. App'x 544, 545 (6th Cir.
2011). Because Perez's claims cannot be asserted in a
petition under 28 U.S.C. § 2241 and they are
substantively without merit, the Court will deny the
2011, Perez was indicted in Austin, Texas 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 Perez was subject to an enhanced
sentence in light of a 1989 federal conviction for conspiracy
to traffic in methamphetamine in violation of 21 U.S.C.
§ 846. As a result, Perez faced a mandatory minimum
sentence of twenty years imprisonment pursuant to 21 U.S.C.
September 2011, Perez pled guilty pursuant to a written plea
agreement to conspiracy to distribute cocaine and heroin in
violation of 21 U.S.C. § 846. As part of the plea
agreement, Perez expressly waived his right to appeal or
collaterally attack his conviction or sentence on any ground.
In December 2011, the trial court imposed a 240-month
sentence. Perez did not appeal, and the trial court denied
his initial motion filed pursuant to 28 U.S.C. § 2255.
United States v. Perez, No. 1: 11-CR-360-SS-10 (E.D.
petition, Perez argues that the enhancement of his federal
sentence 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)(1).
threshold matter, in his plea agreement Perez expressly and
unequivocally waived his right to appeal or collaterally
attack his conviction or sentence. Perez is therefore barred
from challenging his conviction or sentence in this
proceeding because the waiver provision in his plea agreement
applies to collateral attacks asserted under § 2241.
Muse v. Daniels, 815 F.3d 265, 266 (7th Cir. 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 …”); 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 nobis.”).
is therefore barred from challenging his conviction or
sentence in this proceeding, and his petition must be denied.
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). See also
Solis-Caceres v. Sepanek, No. 13-21-HRW, 2013 WL
4017119, at *3 (E.D. Ky. Aug. 6, 2013) (collecting cases);
Combs v. Hickey, No. 11-12-JMH, 2011 WL 65598 (E.D.
Ky. Jan. 7, 2011).
this were not so, Perez's claims are not of the kind
which may be pursued under § 2241. A 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 must be denied because his claims are not ones of
actual innocence, and hence are not cognizable in a §
2241 petition. Perez 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)(1). First, this is not a claim based
upon statutory interpretation but a constitutional claim, and
hence falls outside the purview of § 2241. Second, it is
not a claim based upon Mathis at all; rather, it is
predicated upon the categorical approach, a doctrine
established more than a decade before Perez'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). It is therefore 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. For these reasons, his claims may not be pursued
under 28 U.S.C. § 2241.
also challenges not his convictions, but 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 ...