United States District Court, E.D. Kentucky, Southern Division, London
GEORGE S. RUSH, III, Petitioner,
WILLIAM HUTCHINGS, Warden, Respondent.
MEMORANDUM OPINIOIN & ORDER
Gregory F. Van Tatenhove, United Slates District Judge
S. Rush, III, is an inmate at the Federal Correctional
Institution in Manchester, Kentucky. Proceeding without a
lawyer, Rush filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. [R. 1.] For the reasons
set forth below, the Court will deny Rush's petition.
2004, Rush pled guilty to three counts of possession with the
intent to distribute cocaine, in violation of 21 U.S.C.
§ 841. The United States District Court for the
Southern District of Illinois determined that Rush was a
career offender pursuant to section 4B1.1 of the United
States Sentencing Guidelines because he had at least two
prior felony convictions for either a crime of violence or a
controlled substance offense. As a result, Rush's
sentence was enhanced, and his guidelines range was 188 to
235 months in prison. In September 2004, the district court
sentenced Rush to 235 months in prison.
thereafter, the United States Supreme Court decided
United States v. Booker, 543 U.S. 220 (2005), and
thus rendered the sentencing guidelines advisory. In light of
that decision, the United States Court of Appeals for the
Seventh Circuit vacated Rush's sentence and remanded his
case for resentencing. In October 2005, the district court
adopted the same guidelines calculations and once again
sentenced Rush to 235 months in prison. Rush appealed that
decision, but the Seventh Circuit affirmed the sentence.
Rush's subsequent efforts to vacate his sentence were
has now filed a § 2241 petition with this Court. The
crux of Rush's argument is that, in light of Mathis
v. United States, 136 S.Ct. 2243 (2016), as well as a
number of federal circuit court decisions, his prior felony
convictions are no longer valid predicate offenses to subject
him to the career-offender enhancement under the sentencing
petition, however, constitutes an impermissible collateral
attack on his sentence. That is because although a federal
prisoner may challenge the legality of his sentence on direct
appeal and through a timely § 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, Rush 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, 599 (6th Cir. 2016), to support his position.
[R. 1-1 at 13.] 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 front 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.
circumstances do not apply in this case. That is because the
trial court resentenced Rush in October 2005, after the
Supreme Court decided Booker. Rush has also 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. While Rush 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). Rush's reliance on
Mathis is therefore unavailing.
IT IS ORDERED that:
Rush's petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241 [R. 1] is DENIED.
action is DISMISSED and