United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT.
inmate Robby Travis has filed a pro se petition for a writ of
habeas corpus 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). For
the reasons set forth below, Travis's petition must be
February 2010, a grand jury in Memphis, Tennessee returned an
indictment charging Travis with numerous drug trafficking and
firearms offenses. Travis later entered a plea of guilty to
possession with intent to distribute crack cocaine in
violation of 21 U.S.C. § 841 and to being a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g)(1). Travis did not object to the conclusion in the
presentence report that he had previously committed at least
two prior controlled substance offenses, and therefore
qualified as a career offender under U.S.S.G. §
4B1.1(a). In light of Travis' acceptance of
responsibility, in March 2011 the trial court imposed a
sentence of 108 months imprisonment, well below the
applicable guideline range of 188 to 235 months. United
States v. Travis, No. 2:10-CR-20096-SHM-1 (W. D. Tenn.
§ 2241 petition before this Court, Travis alleges that
the two prior offenses upon which his federal sentence was
enhanced were for possession with intent to distribute
cocaine and marijuana in violation of T.C.A. §
39-17-417. He further implies that the trial court utilized
the modified categorical approach to review extrinsic
materials to determine the nature of his offenses, something
he contends was improper because the statute of conviction is
indivisible under Mathis v. United States, ___ U.S.
___, 136 S.Ct. 2243 (2016). Finally, he asserts that T.C.A.
§ 39-17-417 criminalizes a broader range of conduct than
the “controlled substance offenses” described in
U.S.S.G. § 4B1.2(b), and hence a conviction under that
statute cannot qualify as a valid predicate for an enhanced
sentence. [R. 1-2 at 2-3, R. 1-3 at 3]
thoroughly reviewed Travis's petition, the Court
concludes that it must be denied because Travis may not
assert his Mathis claim in this § 2241
proceeding, and because it would be substantively without
merit if he could.
federal prisoner may challenge the legality of his conviction
or sentence in a § 2255 motion, but may not do so in a
§ 2241 petition. United States v. Peterman, 249
F.3d 458, 461 (6th Cir. 2001) (explaining the distinction
between a § 2255 motion and a § 2241 petition).
Having failed to obtain relief from his conviction and
sentence under § 2255, a prisoner may not simply invoke
§ 2241 as an additional or alternative remedy to the one
provided by § 2255. Hernandez v. Lamanna, 16 F.
App'x 317, 360 (6th Cir. 2001).
savings clause found in 28 U.S.C. § 2255(e) carves out
an exception to this general rule, but it does not apply
here. Travis does not challenge his conviction, but his
sentence. The narrow range of claims cognizable in a §
2241 proceeding 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 the general rule that 28 U.S.C.
§ 2255, not § 2241, must be used to challenge a
conviction or sentence. Under Hill, a challenge to a
sentence is permissible in a § 2241 petition 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. Travis was sentenced in 2011, six years after
Booker was decided, under an advisory guidelines
regime. And the Supreme Court in Mathis merely
reiterated what it had held long ago: that a statute is
considered “divisible, ” therefore permitting use
of the modified categorical approach to determine whether a
prior offense may be used to enhance a sentence under the
career offender provision, only when it contains alternative
elements (hence defining multiple offenses), not when it
merely contains alternative factual means of committing a
single offense. Mathis, 136 S.Ct. at 2249, 2251-52
(citing Taylor v. United States, 495 U.S. 575
(1990)). But 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 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 joined other
circuits in expressly so holding. In re: Conzelmann,
872 F.3d 375, 376-77 (6th Cir. 2017). See also King v.
Terris, No. 2: 17-CV-10611, 2017 WL 3263446, at *2-4
(E.D. Mich. July 31, 2017). Therefore Travis'
Mathis claim is not cognizable in a § 2241
petition, and his petition must be denied.
Travis could assert his claim under Mathis in this
§ 2241 proceeding, it is substantively without merit.
T.C.A. § 39-17-417(a)(1)-(4) criminalizes the
manufacture, delivery, or sale of a controlled substance, or
possession with intent to do one of those things. The
language of the Tennessee statute closely tracks the
definition of a “controlled substance offense”
under § 4B 1.2(b) as one that “prohibits the
manufacture, import, export, distribution, or dispensing of a
controlled substance...” Accordingly, the Sixth Circuit
has long held, even before Mathis was decided, that
“a violation of § 39-17-417 [is] a categorical
controlled substance offense ...” warranting
application of the career offender enhancement. United
States v. Douglas, 563 F. App'x 371, 377 (6th Cir.
2014); see also Bostic v. United States, No. 1:
09-CR-162, 2014 WL 4978423, at *7-8 (E.D. Tenn. Oct. 6,
2014). Many courts, including this one, have thus concluded
that Mathis does not undermine the use of a
conviction under T.C.A. § 39-17-417 as a predicate
offense for a § 4B 1.1 enhancement. Cf. Pittman v.
Quintana, No. 16-CV-424-JMH, 2016 WL 6900788, at *3
(E.D. Ky. Dec. 30, 2016), qff'd, No. 16-6857
(6th Cir. Sept. 18, 2017).
IT IS ORDERED that:
petition filed pursuant to 28 U.S.C. § 2241 by Robby
Travis [R. 1] is DENIED with respect to all
issues raised in this proceeding.
Court will enter an appropriate Judgment.
matter is DISMISSED and