United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE
McGee is a federal prisoner who was recently confined at the
United States Penitentiary - McCreary in Pine Knot, Kentucky.
Proceeding without a lawyer, McGee filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241.
See R. 1. For the reasons set forth below, the Court
will deny McGee's petition.
2010, McGee entered into a written plea agreement with the
United States and pled guilty to being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g). See
United States v. Delbert McGee, No. 2:10-cr-20013 (C.D.
Ill. 2010). The maximum sentence for violating § 922(g)
is usually 10 years in prison. See 18 U.S.C. §
924(a)(2). However, McGee agreed with the United States that
he “would be classified as an Armed Career Offender
under the sentencing guidelines, as he has three prior felony
convictions that are considered violent felonies and/or
serious drug offenses, as that concept is defined at U.S.S.G.
§ 41.4 and 18 U.S.C. § 924(e)(1).” United
States v. Delbert McGee, No. 2:12-cv-2094, R. 6 at 2
(C.D. Ill. 2012). As a result, McGee was subject to a
mandatory minimum sentence of 15 years in prison pursuant to
the Armed Career Criminal Act (ACCA), 18 U.S.C. §
924(e). Ultimately, the trial court sentenced McGee to 188
months in prison. McGee did not file a direct appeal, and
while he moved to vacate his sentence pursuant to 28 U.S.C.
§ 2255, the district court denied that motion, see
United States v. McGee, No. 2:12-cv-2094, R. 6 (C.D.
Ill. 2012), and the United States Court of Appeals for the
Seventh Circuit denied McGee's requests to file second or
successive § 2255 motions. See R. 1-2 at 2-5.
has now filed a § 2241 petition with this Court, and he
challenges the validity of his underlying sentence. McGee
argues that he should be afforded relief from his
career-offender designation because two of his prior felony
convictions are no longer considered violent felonies for
purposes of the ACCA. McGee cites several cases to support
his petition, including the Supreme Court's opinions in
Johnson v. United States, 135 S.Ct. 2551 (2015), and
Mathis v. United States, 136 S.Ct. 2243 (2016), as
well as the decision from the United States District Court
for the Central District of Illinois in Box v.
Krueger, No. 16-cv-1299, 2016 WL 6651282 (Nov. 10,
initial matter, McGee waived his right to collaterally attack
his sentence. While this Court does not have access to
McGee's plea agreement because it was apparently filed
under seal, see United States v. McGee, No.
2:10-cr-20013, R. 19 (C.D. Ill. 2010), the Central District
of Illinois has stated that, in the agreement, McGee
specifically said he “knowingly and voluntarily waives
his right to challenge any and all issues relating to his
plea agreement, conviction and sentence, including any fine
or restitution, in any collateral attack, including,
but not limited to, a motion brought under Title 28,
United States Code, Section 2255.” United States v.
McGee, No. 2:12-cv-2094, R. 6 at 3 (C.D. Ill. 2012)
(emphasis added). This broad waiver precludes the assertion
of the arguments that McGee pursues in this case. As this
Court has recognized on numerous occasions, such waivers are
valid and enforceable in § 2241 proceedings. See
Ewing v. Sepanek, No. 0:14-cv-111-HRW (E.D. Ky. Jan. 6,
2015); Solis-Caceres v. Sepanek, No. 0:13-cv-021-HRW
(E.D. Ky. Aug. 6, 2013) (collecting cases); Combs v.
Hickey, No. 5:11-cv-012-JMH (E.D. Ky. Jan. 7, 2011).
Accordingly, McGee is barred from challenging his sentence in
his habeas petition.
said, even if McGee's waiver was not enforceable, his
§ 2241 petition would still constitute an impermissible
collateral attack on his sentence. Although a federal
prisoner may challenge the legality of his sentence on direct
appeal and through a § 2255 motion, he generally may not
do so in a § 2241 petition. See United States v.
Peterman, 249 F.3d 458, 461 (6th Cir. 2001) (explaining
the distinction between a § 2255 motion and a §
2241 petition). After all, a § 2241 petition is usually
only 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. See Terrell v.
United States, 564 F.3d 442, 447 (6th Cir. 2009). Simply
put, McGee cannot use a § 2241 petition as a way of
challenging his sentence.
nevertheless argues that he can attack his sentence in a
§ 2241 petition, and he cites Hill v. Masters,
836 F.3d 591 (6th Cir. 2016), to support his position.
See R. 1-1 at 4. It is true that, in Hill,
the Sixth Circuit indicated for the first time that a
prisoner may challenge his sentence in a § 2241
petition. However, in doing so, the court expressly limited
its decision to the following, very narrow circumstances:
(1) prisoners who were sentenced under the mandatory
guidelines regime pre-United States v. Booker, 543
U.S. 220 . . . (2005), (2) who were foreclosed from filing a
successive petition under § 2255, and (3) when a
subsequent, retroactive change in statutory interpretation by
the Supreme Court reveals that a previous conviction is not a
predicate offense for a career-offender enhancement.
Id. at 599-600.
circumstances do not apply in this case. That is because the
trial court sentenced McGee in 2011, well after the Supreme
Court decided Booker. Plus, McGee has failed to
identify a subsequent, retroactive change in statutory
interpretation by the Supreme Court that reveals that one of
his previous convictions is not a predicate offense for
purposes of the career-offender enhancement. Although McGee
cites Mathis, the Sixth Circuit recently explained
in a published decision that “Mathis was
dictated by prior precedent (indeed two decades worth),
” and, thus, it did not announce a new rule, let alone
a retroactive one. In re Conzelmann, No. 17-3270,
2017 WL 4159184, *1 (6th Cir. September 20, 2017). Therefore,
McGee's reliance on Mathis is unavailing.
Finally, while McGee cites Johnson, that case
“was not a ‘Supreme Court decision[ ] announcing
new rules of statutory construction unavailable for attack
under section 2255, ' [and thus] a habeas corpus petition
under § 2241 is not an appropriate or available
mechanism to pursue a claim under that decision.”
William v. Snyder-Norris, No. 0:15-cv-098-HRW, 2016
WL 1704134, *3 (E.D. Ky. 2016) (quoting Hayes v.
Holland, 473 F. App'x 501, 501-02 (6th Cir. 2012)).
light of the foregoing analysis, it is hereby
ORDERED as follows:
McGee's petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241 [R. 1] is DENIED.
action is DISMISSED and