United States District Court, E.D. Kentucky, Central Division, Lexington
MANDY L. MOSER, Petitioner,
FRANCISCO QUINTANA, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
C. Reeves, United States District Judge
Mandy L. Moser 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 her federal sentence.
[Record No. 1] This matter is pending for initial screening
of Moser's petition. 28 U.S.C. § 2243. The Court
will deny the relief sought because Moser may not assert her
claims in a § 2241 petition.
federal grand jury for the Eastern District of Tennessee
returned an indictment in February 2014, charging Moser with
two counts of conspiracy to manufacture 50 grams or more of
methamphetamine, a Schedule II controlled substance, in
violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)
(Counts One and Two) and one count of possession of
equipment, chemicals, products and materials used to
manufacture methamphetamine in violation of 21 U.S.C. §
843(a)(6) (Count Eight). In July 2014, Moser signed a written
plea agreement in which she agreed to plead guilty to Counts
One and Two. The United States agreed to move to dismiss the
remaining count against Moser (Count Eight) at the time of
sentencing. In the plea agreement, Moser further agreed to
(a) In consideration of the concessions made by the United
States in this agreement and as a further demonstration of
the defendant's acceptance of responsibility for the
offense committed, the defendant agrees not to file a direct
appeal of the defendant's conviction or sentence except
the defendant retains the right to appeal a sentence imposed
above the sentencing guideline range or any applicable
mandatory minimum sentence (whichever is greater) as
determined by the district court.
(b) In addition, the defendant knowingly and voluntarily
waives the right to file any motions or pleadings pursuant to
28 U.S.C. § 2255 or to collaterally attack the
defendant's conviction and/or resulting sentence.
The parties agree that the defendant retains the right to
raise, by way of collateral review under § 2255, claims
of ineffective assistance of counsel or prosecutorial
misconduct not known to the defendant by the time of the
entry of judgment.
trial court sentenced Moser in April 2015 to 180 months
imprisonment on each of Counts 1 and 2, to run concurrently,
as well as concurrently to a state sentence imposed for the
violation of parole in Monroe County, Tennessee. The trial
court also dismissed Count Eight upon the motion of the
United States. Moser did not file a direct appeal, nor did
she file a motion to vacate her conviction and sentence under
28 U.S.C. § 2255. United States v. Moser, No.
3: 14-CR-14-TAV-HBG-6 (E.D. Tenn. 2014).
the Presentence Report (“PSR”) prepared by the
United States Probation Office in Moser's underlying
criminal case is sealed, in her § 2241 petition, Moser
states that the Probation Office concluded in the PSR that
she qualified as a “Career Offender” pursuant to
U.S.S.G. § 4B1.1(a) based on her two prior felony
convictions for controlled substance offenses. Specifically,
Moser states that she has a December 2005 conviction for
promoting the manufacture of methamphetamine and a January
2006 conviction for initiating process to manufacture
methamphetamine. [Record No. 1-1 at 6, 12-13] Moser further
states that the Probation Office calculated a guideline
sentencing range of 262-327 months of imprisonment.
[Id. at 6] Thus, her actual sentence of 180 months
was well below the guideline range.
argues in her § 2241 petition that, in light of the
Supreme Court's decision in Mathis v. United
States, __ U.S. __, 136 S.Ct. 2243 (2016), as well as
the Fifth Circuit's decision in United States v.
Hinkle, 832 F.3d 569 (5th Cir. 2016), and the Seventh
Circuit's decision in Holt v. United States, 843
F.3d 720 (7th Cir. 2016), that her prior convictions are no
longer “controlled substance offenses” as defined
in U.S.S.G. § 4B1.2(b). Thus, Moser contends that she no
longer qualifies as a career offender under U.S.S.G. §
4B1.1(a). [Record No. 1 at 7]
petition must be denied because she waived her right to
collaterally attack her conviction or sentence in her plea
agreement. Such 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…”);
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)
this were not the case, Moser may not pursue these claims in
this proceeding. A federal prisoner generally may not use a
§ 2241 petition to challenge the enhancement of her
sentence. See United States v. Peterman, 249 F.3d
458, 461 (6th Cir. 2001). A § 2241 petition may
typically 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 her conviction or sentence must
file a motion under § 2255. Peterman, 249 F.3d
at 461 (explaining the distinction between a § 2255
motion and a § 2241 petition). 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
“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, 16 F. App'x at 360.
decidedly narrow scope of relief under § 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
§ 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 or her federal sentence no
longer qualified as a valid predicate offense. Hill,
836 F.3d at 599-600.
does not satisfy the first criteria in Hill because
she was sentenced in 2015, long after Booker was
decided. In addition, although she attempts to rely on the
Supreme Court's decision in Mathis, for a claim
based upon a recently-issued Supreme Court decision
interpreting a statute to be cognizable in a § 2241
petition, the holding must be retroactively applicable to
cases on collateral review. Wooten v. Cauley, 677
F.3d 303, 307-08 (6th Cir. 2012). The Supreme Court in
Mathis 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 ...