United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE
Donte Darrell Parrish has filed petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. [R. 1] This
matter is before the Court to conduct an initial screening of
Parrish's petition. 28 U.S.C. § 2243; Alexander
v. Northern Bureau of Prisons, 419 F. App'x 544, 545
(6th Cir. 2011).
October 2005 Parrish was indicted in Harrisburg, Pennsylvania
for possessing a firearm during and in relation to
trafficking in crack cocaine in violation of 18 U.S.C. §
924(c) and for being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g). In March 2006, Parrish
signed a written agreement to plead guilty to the §
924(c) count in exchange for the dismissal of other charges.
As part of the plea agreement, Parrish expressly waived his
right to challenge his conviction or sentence by direct
appeal or in any collateral proceeding.
presentence investigation report concluded that Parrish was
subject to the career offender enhancement found in U.S.S.G.
§ 4B.1.1(a), resulting in a guidelines range of 262-327
months imprisonment. The government subsequently moved for a
sentencing reduction because Parrish provided substantial
assistance to the government. Based upon this information, in
January 2007 the trial court sentenced Parrish to 180 months
imprisonment, well below the applicable guidelines range, and
ordered its sentence to run concurrently with a state
sentence Parrish was already serving. United States v.
Parrish, No. 1: 05-CR-417 (M.D. Pa. 2005).
appealed, but the Third Circuit summarily affirmed.
United States v. Parrish, 287 F. App'x 990 (3d
Cir. 2008). Parrish also sought relief from the trial court
pursuant to 28 U.S.C. § 2255, but the court denied the
motion as untimely. Parrish has subsequently filed several
additional motions for relief, including to reconsider or
vacate prior denials as well as successive § 2255
motions. In June 2016, Parrish filed a § 2255 motion
challenging the enhancement of his sentence in light of
Johnson v. United States, __ U.S. __, 135 S.Ct. 2551
(June 26, 2015); that motion remains pending.
current petition, Parrish asserts - in two sentences - that
the use of a prior conviction for reckless endangerment to
enhance his sentence was unconstitutional. Parrish makes no
argument whatsoever in support of this contention, and
provides no reference to any particular case upon which he
relies for relief. He separately contends without explanation
that the Bureau of Prisons has failed to properly award all
of the prior custody credits to which he is entitled. [R. 1
preliminary matter, Parrish's conclusory assertions
self-evidently fail to satisfy the minimum pleading
requirements applicable to habeas corpus petitions.
Alexander v. Northern Bureau of Prisons, 419 F.
App'x 544, 545 (6th Cir. 2011) (applying the pleading
standard set forth in Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) to habeas corpus petitions). The petition is
dismissible on that ground alone. In addition, Parrish's
claim regarding the BOP's calculation of his sentence is
wholly unrelated - factually and legally - to his challenge
to the enhancement of his sentence. The two claims may
therefore not be properly asserted in the same petition, and
the Court will consider only Parrish's challenge to the
enhancement of his sentence in this proceeding.
respect to that claim, in his plea agreement Parrish
unequivocally waived his right to collaterally attack his
conviction or sentence. Parrish 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 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 nobis.”).
is therefore barred from challenging his conviction or
sentence in this proceeding, and his petition must be denied.
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).
Parrish's assertion that the enhancement of his sentence
was unconstitutional suggests that he wishes to assert a
claim under Johnson. But Parrish's claim under
Johnson remains pending before the trial court,
rendering resort to § 2241 premature at best. Accord
Smith v. United States, 89 F.3d 835 (6th Cir. 1996)
(unpublished disposition) (noting that the “well
established general rule is that, absent extraordinary
circumstances, the district court should not consider §
2255 motions while a direct appeal is pending.”)
(quoting United States v. Robinson, 8 F.3d 398, 405
(7th Cir. 1993)); Charles v. Chandler, 180 F.3d 753,
756 (6th Cir. 1999); White v. Grondolsky, No. 6:
06-309-DCR, 2006 WL 2385358, at *3 (E.D. Ky. Aug. 17, 2006).
addition, because a constitutional claim under
Johnson can be asserted by motion under § 2255,
Welch v. United States, __U.S.__ 136 S.Ct. 1257
(2016), that remedy is not inadequate and ineffective to
assert it, and resort to § 2241 is impermissible.
Woodson v. Meeks, No. 0:15-4209-BHH, 2016 WL
8669184, at *1 (D.S.C. Oct. 14, 2016); Lewis v.
Butler, No. 16-135-DLB, 2016 WL 4942005, at *2-3 (E.D.
Ky. Sept. 14, 2016).
it is ORDERED as follows:
1. The Clerk of the Court shall send a copy of this Order to
the warden of the institution in which Parrish is currently
2. Parrish's custodian shall send the Clerk of the Court
payment of the $5.00 filing fee from funds in his inmate
trust fund account once the ...