United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge
inmate Danny Lee Cathey has filed a habeas corpus petition
pursuant to 28 U.S.C. § 2241. [R. 1.] The Court conducts
an initial review of habeas corpus petitions. 28 U.S.C.
§ 2243; Alexander v. Northern Bureau of
Prisons, 419 F. App'x 544, 545 (6th Cir. 2011).
February 2009, a federal grand jury indicted Cathey for
possession with intent to distribute more than fifty grams of
methamphetamine in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(B)(viii), and for being a felon in
possession of a firearm or ammunition in violation of 18
U.S.C. § 922(g)(1). The government later gave notice
pursuant to 21 U.S.C. § 851 that Cathey had previously
been convicted of three prior felony drug offenses, any one
of which would increase his minimum sentence for the drug
trafficking charge to ten years to life imprisonment pursuant
to 21 U.S.C. § 841(b)(1)(B).
November 2009, a jury found Cathey guilty of the narcotics
charge but not guilty on the weapons offense. On March 19,
2010, the trial court concluded that Cathey qualified as a
career offender pursuant to U.S.S.G. § 4B1.1(a) because
he had committed two or more prior felony drug offenses, but
noted that his criminal history category would have been 37
even without that enhancement. Although Cathey faced a term
of 360 months to life imprisonment, the trial court imposed a
180-month term of incarceration to run consecutively to a
pre-existing five-year state prison sentence for a distinct
offense. United States v. Cathey, No. 5:
09-CR-02-TBR (W.D. Ky. 2009).
petition, Cathey argues that following the Supreme
Court's decision in Mathis v. United States, __
U.S. __, 136 S.Ct. 2243 (2016), his prior state drug
trafficking offense no longer constitutes a “controlled
substance offense” within the meaning of U.S.S.G.
§ 4B1.2(b), and therefore asks to be resentenced without
the career offender enhancement. [R. 1-1.] As noted above
however, application of the career offender enhancement did
not increase Cathey's criminal history category, and thus
did not enhance the sentence he faced. In addition, the trial
court imposed a sentence only half as long as that called for
under the guidelines based on drug quantity alone, and thus
it is far from clear that resentencing would assist Cathey.
aside those practical difficulties, Cathey's habeas
petition must be denied in light of numerous and insuperable
legal shortcomings. First, Cathey may not use a Section 2241
petition to assert Mathis as a ground to challenge
the enhancement of his sentence. A Section 2241 petition may
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 use
a motion under Section 2255. United States v.
Peterman, 249 F.3d 458, 461 (6th Cir. 2001) (explaining
the distinction between permissible uses for a § 2255
motion and a § 2241 petition). The prisoner may not
resort to Section 2241 to seek relief even when Section 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 Section 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
Section 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 the threshold requirement of
Hill because he was sentenced in 2010, long after
Booker rendered the Sentencing Guidelines advisory
rather than mandatory. In addition, the Supreme Court in
Mathis itself made abundantly clear that its holding
was required by decades-old precedent and hence did not
announce any new rule, Mathis, 136 S.Ct. at 2257,
and the Sixth Circuit has expressly so held. In re:
Conzelmann, 2017 WL 4159184 (6th Cir. 2017). Because a
claim based upon a recently-issued Supreme Court decision
interpreting a statute is only cognizable in a § 2241
petition if that holding is retroactively applicable to cases
on collateral review, Wooten v. Cauley, 677 F.3d
303, 307-08 (6th Cir. 2012), Mathis does not provide
Cathey with a basis for relief under § 2241.
Cathey's claim therefore falls outside the decidedly
narrow exception set forth in Hill, and his
sentencing claim does not come within the narrow scope of
Section 2255(e)'s savings clause. Peterman, 249
Cathey's claim under Mathis would fail on the
merits even if he could assert it in his § 2241
petition. Cathey does not contest that his 1987 federal
conviction for possession with intent to distribute cocaine
constitutes a “controlled substance offense” as
that term is defined in U.S.S.G. § 4B1.2(b). Instead, he
asserts that his 1993 conviction in the Graves Circuit Court
for Trafficking in a Schedule II controlled substance
(cocaine) was imposed under a statute that criminalizes a
broader range of conduct than that set forth in the guideline
case, Cathey was found guilty of violating Ky. Rev. Stat.
218A.1412(1), and was sentenced to ten years imprisonment on
March 19, 1993. The Kentucky statute makes it a crime to
“traffic” in a controlled substance, meaning
“to manufacture, distribute, dispense, sell, transfer,
or possess with intent to manufacture, distribute, dispense,
or sell a controlled substance.” Ky. Rev. Stat.
218A.010(55). Notably, regardless of how the defendant
trafficked in the controlled substance, the penalty is the
same, Ky. Rev. Stat. 218A.1412(3), meaning the statute
defines a single offense.
language of Kentucky's definitional statute is
functionally indistinguishable from that found in the
sentencing guidelines, which defines a “controlled
substance offense” as “an offense under federal
or state law, punishable by imprisonment for a term exceeding
one year, that prohibits the manufacture, import,
export, distribution, or dispensing of a
controlled substance (or a counterfeit substance) or the
possession of a controlled substance (or a counterfeit
substance) with intent to manufacture, import, export,
distribute, or dispense.” U.S.S.G. § 4B1.2(b)
(emphasis added). The Kentucky statute uses the same terms,
adding only the “sale” or “transfer”
of narcotics as prohibited conduct. But those terms connote
the same range of conduct as that involved in the
“distribution” of a controlled substance.
See 21 U.S.C. § 802(11) (defining
“distribute” under federal criminal law to mean
to “deliver” a controlled substance); see also
United States v. Maldonado, 864 F.3d 893 (8th Cir.
2017). And unlike the Texas statute involved in United
States v. Hinkle, 832 F.3d 569, 571 (5th Cir. 2016),
neither the “sale” nor “transfer” of
narcotics under the Kentucky statute contemplate a mere
“offer to sell” them. Even after Mathis
was decided, this Court has thus held that a conviction under
Ky. Rev. Stat. 218A.1412 constitutes a “controlled
substance offense” under §4B1.2(b). United
States v. Knox, No. 11-CR-60-DLB, 2016 WL 7320883, at *3
(E.D. Ky. Dec. 15, 2016). For each of these reasons,
Cathey's petition must be denied.