United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
L. BUNNING UNITED STATES DISTRICT JUDGE.
Jose Adrian Hernandez has filed an original and two amended
petitions for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. (Doc. # 1, 5, 10). This matter is before the
Court to conduct an initial screening of Hernandez'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 Hernandez'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
November 2005, Hernandez was indicted in Laredo, Texas for
conspiracy to possess with intent to distribute more than one
kilogram of heroin in violation of 21 U.S.C. §§
841(a)(1) and 846, as well as possession with intent to
distribute more than one kilogram of heroin in violation of
21 U.S.C. § 841(a)(1). Shortly thereafter, the
prosecution filed a notice pursuant to 21 U.S.C. § 851
indicating that Hernandez's sentence was subject to
enhancement in light of several prior offenses, including a
1990 Texas conviction for possession of methamphetamine for
which a six-year sentence was imposed, as well as a 1996
Texas conviction for possession of heroin for which a five-
year sentence was imposed. Hernandez was therefore subject to
a mandatory minimum sentence of life imprisonment pursuant to
21 U.S.C. § 841(b)(1)(A).
executed a written plea agreement in which he acknowledged
that he was subject to a mandatory minimum sentence of life
in prison. In April 2006, consistent with the plea agreement,
the government dismissed the conspiracy count and the trial
court sentenced Hernandez on the drug trafficking charge to
life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A).
Hernandez appealed, but the Fifth Circuit dismissed the
appeal as frivolous after his counsel filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967)
indicating that there were no nonfrivolous issues for appeal.
2016, Hernandez filed a motion to vacate his sentence under
28 U.S.C. § 2255, seeking relief under Johnson v.
United States, __ U.S. __, 135 S.Ct. 2551 (2015);
Welch v. United States, __ U.S. __, 136 S.Ct. 1257
(2016); and Mathis v. United States, __ U.S. __, 136
S.Ct. 2243 (2016). The trial court denied the motion, notably
rejecting a version of the same argument Hernandez asserts in
this proceeding, by holding that Mathis and
United States v. Hinkle, 832 F.3d 569 (5th Cir.
2016) do not apply to Hernandez's situation
“because Hinkle focused on the definition of
‘controlled substance offense' under U.S.S.G.
§ 4B1.2, and [Hernandez's] statutory minimum
enhancement under § 841(b)(1)(A) refers to ‘felony
drug offense.'” United States v.
Hernandez, No. 5: 05-CR-2481-2 (S.D. Tex. 2005).
petition, Hernandez 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, which is
applied to evaluate prior convictions for possible sentence
enhancements pursuant to 18 U.S.C. § 924(e)(1).
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. Hernandez 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 Hernandez'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 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. Hernandez was sentenced in April 2006, more
than a year after Booker was decided and under a
discretionary guidelines regime. And as noted above,
Hernandez's claims are not based upon any recent Supreme
Court decision, but instead challenge the limited
applicability of the categorical approach on constitutional
grounds, a situation in effect for more than a decade before
his sentence was ...