United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT.
inmate Kenneth McKoy 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). McKoy's petition will be denied for the reasons
set forth below.
March 2007, McKoy pled guilty to one count of distributing
100 or more grams of heroin in violation of 21 U.S.C. §
841(a)(1). In the plea agreement, “[t]he parties
agree[d] that Kenneth McKoy is a career offender pursuant to
Section 4Bl.l(a) of the Sentencing Guidelines ...”
based upon two 2004 convictions in Pennsylvania for
possession with intent to deliver a controlled substance in
violation of 35 Pa. Stat. § 780-113(a)(30). In addition,
McKoy waived his right to file a direct appeal, and further
expressly “waive[d] the right to file a motion to
vacate sentence, under 28 U.S.C. §2255, attacking his
conviction or sentence, and the right to file any other
collateral proceeding attacking his conviction or
sentence.” (emphasis added). In August 2007, the
trial court sentenced McKoy to 188 months imprisonment, the
very bottom of the advisory guidelines range.
direct appeal, the Third Circuit affirmed McKoy's
conviction and sentence in a summary order. McKoy then sought
relief by way of motion filed pursuant to 28 U.S.C. §
2255, again challenging his designation as a career offender.
In a thorough opinion, the trial court noted that both the
factual basis for McKoy's designation as a career
offender and the collateral attack waiver contained in his
plea agreement were discussed extensively during the change
of plea hearing and subsequently at the sentencing hearing.
The trial court noted that McKoy's § 2255 motion was
untimely, barred by the waiver provision in his plea
agreement, and substantively without merit. United States
v. McKoy, No. 06-332 (W.D. Pa. 2006).
§ 2241 petition in this Court, McKoy repeatedly invokes
the Supreme Court's decisions in 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), as well as the Fifth Circuit's decision in
United States v. Hinkle, 832 F.3d 569, 572-73 (5th
Cir. 2016) to again assert that his sentence was improperly
enhanced. [R. 1]
petition must be denied for several reasons. First, as noted
above, in his plea agreement McKoy expressly and
unequivocally waived his right “to file any other
collateral proceeding attacking his conviction or
sentence.” McKoy therefore may not challenge 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
is therefore barred from challenging his conviction or
sentence in this proceeding, and his petition must be
dismissed. 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).
might be able to challenge the legality of his conviction or
sentence in a § 2255 motion, but cannot 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, which does not apply here.
Here, McKoy does not challenge his conviction, but his
sentence. The narrow range of claims cognizable in a §
2241 proceeding does not include 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. McKoy was sentenced in August 2007, nearly
three 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 McKoy's Mathis claim is not cognizable
in a § 2241 petition, and his petition must be denied.
claims under Johnson and Welch fare no
better. In Johnson, the Supreme Court concluded that
the residual clause found in 18 U.S.C. § 924(e)(2)(B)
was void for vagueness. That subsection provided a catch-all
definition for various kinds of prior offenses which could be
used to enhance a sentence as an “armed career
criminal” for one convicted of being a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g). But McKoy was not convicted under § 922(g) nor
was his sentence enhanced pursuant to § 924(e)(1).
Therefore Johnson does not apply to him. Even if it
did, Welch held that Johnson announced a
new rule of constitutional law, and hence is retroactively
applicable to cases on collateral review. Precisely for that
reason, inmates wishing to invoke Johnson as grounds
to challenge their federal sentence could and must have done
so by requesting and obtaining permission to file a second or
successive motion under § 2255. See § 2255(h)(2);
In re Watkins, 810 F.3d 375, 377 (6th Cir. 2015).
Because McKoy and other prisoners could have asserted claims
based upon Johnson under § 2255, that remedy
was plainly not structurally “inadequate and
ineffective” to test the legality of their detention,
and resort to § 2241 is impermissible. Truss v.
Davis, 115 F. App'x 772, 773-74 (6th Cir. 2004);
McDowell v. Warden, FCC Medium Coleman, 2017 WL
2352000, at *2-3 (11th Cir. May 31, 2017).
Hinkle relevant. That case was decided by the Fifth
Circuit, not the Supreme Court, and hence cannot form the
basis for relief under § 2241. In addition, pivotal to
the decision in that case was the fact that the Texas drug
trafficking statute criminalized not just the manufacture,
sale, or distribution of drugs, but also a mere offer to sell
them. Hinkle, 832 F.3d at 572-73. The provision
under which McKoy was convicted, 35 Pa. Stat. §
780-113(a)(30), contains no such language, criminalizing only
“the manufacture, delivery, or possession with intent
to manufacture or deliver, a controlled substance ... or
knowingly creating, delivering or possessing with intent to
deliver, a counterfeit controlled substance.” This
language closely tracks the definition of a “controlled
substance offense” under § 4B1.2(b) as one that
“prohibits the manufacture, import, export,
distribution, or dispensing of a controlled
substance...” Accordingly the Third Circuit has held,
both before and after Mathis was decided, that a
violation of 35 Pa. Stat. § 780-113(a)(30) qualifies as
a valid predicate offense under the functionally-identical
armed career criminal provision found in 18 U.S.C. §
924(e). United States v. Abbott, 748 F.3d 154,
158-160 (3d Cir. 2014); United States v. Henderson,
841 F.3d 623, 626-32 (3d Cir. 2016).
each of these reasons, McKoy's petition must be denied.