United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge
inmate Mark Manasse 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
Fed.Appx. 544, 545 (6th Cir. 2011). For the reasons set forth
below, the Court must deny Manasse's petition.
April 2011, Manasse was indicted in Newark, New Jersey for
his leadership role in operating an extensive drug
trafficking ring. In January 2013, Manasse reached a written
agreement with the government to plead guilty to a single
count of conspiracy to possess with intent to distribute 280
or more grams of crack cocaine in violation of 21 U.S.C.
§ 846. As part of that agreement, Manasse expressly
waived his right to appeal or collaterally attack his
conviction or sentence by any means.
Manasse's strenuous objections, at the July 2013
sentencing hearing, the trial court accepted the probation
office's conclusion that Manasse qualified as a career
offender under U.S.S.G. § 4B1.1(a). Manasse had prior
New Jersey convictions for aggravated assault, second degree
eluding (vehicular), and conspiracy to possess with intent to
distribute cocaine. The trial court concluded that at least
two of these constituted valid predicate offenses, and
applied the guidelines enhancement. The trial court sentenced
Manasse to 325 months imprisonment. Manasse filed a direct
appeal, but the Third Circuit dismissed it in light of
Manasse's appeal waiver. United States v.
Manasse, No. 2: 11-CR-768-JLL-3 (D.N.J. 2011).
§ 2241 petition, Manasse purports to rely upon
Mathis v. United States, __ U.S. __, 136 S.Ct. 2243
(2016), to argue that his prior convictions for assault and
conspiracy no longer qualify as valid predicate offenses. [R.
1.] However, Manasse's petition must be dismissed because
he expressly waived his right to collaterally attack his
sentence and because his Mathis claim is not
cognizable in a § 2241 petition.
noted above, in his plea agreement Manasse expressly and
unequivocally waived his right to appeal or collaterally
attack his conviction or sentence. Manasse is therefore
barred from challenging 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
Fed.Appx. 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 nobis.”).
is therefore barred from challenging his conviction or
sentence in this proceeding, and his petition must be
dismissed. Johnson v. Warden, 551 Fed.Appx. 489, 491
(11th Cir. 2013); Rivera v. Warden, FCI, Elkton, 27
Fed.Appx. 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).
this were not so, Manasse's § 2241 petition
constitutes an impermissible collateral attack on his
sentence. A federal prisoner may challenge the legality of
his 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
Fed.Appx. 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. Manasse 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 Fed.Appx. 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. Manasse was sentenced in 2013, nearly a decade
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 expressly so held.
In re: Conzelmann, 872 F.3d 375, 376-77 (6th Cir.
2017). Therefore Manasse's Mathis claim is not
cognizable in a § 2241 petition, and his petition must
IT IS ORDERED that:
1. Warden J. Ray Ormond is SUBSTITUTED for
the United States of America as the respondent in this
2. The petition filed pursuant to 28 U.S.C. § 2241 by
Mark Manasse [R. 1] is DENIED with respect
to all ...