United States District Court, E.D. Kentucky, Southern Division
PATRICK D. SMITH, Petitioner,
J. RAY ORMOND, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge
Patrick Dewayne Smith has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. [Record No.
1] The matter is pending for initial screening of the
petition. 28 U.S.C. § 2243; Alexander v. Northern
Bureau of Prisons, 419 F. App'x 544, 545 (6th Cir.
a two-week trial, a jury in Nashville, Tennessee found Smith
guilty of conspiracy to possess with intent to distribute
cocaine, crack cocaine, and marijuana in violation of 21
U.S.C. § 846, and conspiracy to commit money laundering
in violation of 18 U.S.C. §§ 1956(h), 2. The
government had given notice before trial pursuant to 21
U.S.C. § 851 that Smith had four prior convictions in
Alabama (two for drug trafficking and two for drug
possession) which subjected him to a greater sentence
pursuant to 21 U.S.C. § 841(b)(1)(A). Smith filed a
memorandum before the sentencing hearing challenging the
applicability of the career offender provision found in
§ 4B1.1 of the Sentencing Guidelines as well as the
constitutionality of the recidivist enhancement contained in
§ 841(b)(1)(A). Over those objections, in June 2013 the
trial court sentenced Smith to life imprisonment on the drug
trafficking conviction and to 240 months imprisonment on the
money laundering conviction, the two sentences to run
concurrently with one another. United States v.
Smith, No. 3: 11-CR-82 (M.D. Tenn. 2011). The Sixth
Circuit rejected Smith's challenges on direct appeal
regarding his convictions and the enhancement of his
sentence. United States v. Smith, 607 F. App'x
340 (6th Cir. 2015).
now argues that the enhancement of his federal sentence
pursuant to 21 U.S.C. § 841(b)(1)(A) violates his due
process and equal protection rights because his prior
convictions were not evaluated as possible predicate offenses
using the same “categorical approach” described
in Mathis v. United States, __ U.S. __, 136 S.Ct.
2243 (2016), which is applied to evaluate prior convictions
for possible sentence enhancements imposed pursuant to 18
U.S.C. § 924(e)(1).
relief Smith seeks will be denied because his claims are not
cognizable in a habeas corpus petition under § 2241 and
because they are without merit. A habeas petition filed
pursuant to § 2241 may be used to challenge 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.
Terrell v. United States, 564 F.3d 442, 447 (6th
Cir. 2009). If a federal prisoner instead wishes to challenge
the legality of his federal conviction or sentence, he must
do so by filing a motion for post-conviction relief under 28
U.S.C. § 2255 in the court that convicted and sentenced
him. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th
Cir. 2003). A habeas petition pursuant to 28 U.S.C. §
2241 may not be used for this purpose because it does not
function as an additional or alternative remedy to the one
available under § 2255. Hernandez v. Lamanna,
16 F. App'x 317, 320 (6th Cir. 2001).
“savings clause” of 28 U.S.C. § 2255(e)
creates an narrow exception to this prohibition if the remedy
afforded by § 2255 is “inadequate or
ineffective” to test the legality of the prisoner's
detention. Truss v. Davis, 115 F. App'x 772,
773-74 (6th Cir. 2004). A motion under § 2255 is not
“inadequate or ineffective” simply because the
prisoner's time to file a § 2255 motion has passed,
he did not file a § 2255 motion, or he did file such a
motion and was denied relief. Copeland v. Hemingway,
36 F. App'x 793, 795 (6th Cir. 2002); Taylor v.
Gilkey, 314 F.3d 832, 835 (7th Cir. 2002) (holding that
§ 2241 is available “only when a structural
problem in § 2255 forecloses even one round of effective
collateral review ...”). In other words, prisoners
cannot use a habeas petition under § 2241 as yet another
“bite at the apple.” Hernandez v.
Lamanna, 16 F. App'x 317, 360 (6th Cir. 2001).
properly invoke the savings clause, the petitioner must be
asserting a claim that he is “actual innocent” of
the underlying offense by showing that after the
petitioner's conviction became final, the Supreme Court
re-interpreted the substantive terms of the criminal statute
under which he was convicted in a manner that establishes
that her conduct did not violate the statute. Wooten v.
Cauley, 677 F.3d 303, 307-08 (6th Cir. 2012) (citing
United States v. Peterman, 249 F.3d 458, 461-62 (6th
Cir. 2001)); Hayes v. Holland, 473 F. App'x 501,
501-02 (6th Cir. 2012) (“To date, the savings clause
has only been applied to claims of actual innocence based
upon Supreme Court decisions announcing new rules of
statutory construction unavailable for attack under section
2255.”). Of course the Supreme Court's
newly-announced interpretation must be retroactively
applicable to cases on collateral review. Wooten,
677 F.3d at 308.
petition will be denied because he is not asserting claims of
actual innocence. Therefore, they are not cognizable in a
§ 2241 petition. Smith asserts that the enhancement of
his sentence pursuant to 21 U.S.C. § 841(b)(1)(A) is
unconstitutional because it was not the product of the
categorical approach discussed in Mathis and applied
to enhancements under 18 U.S.C. § 924(e)(1). First, this
is not a claim based upon statutory interpretation but a
constitutional claim. Thus, it falls outside the purview of
§ 2241. Second, it is not a claim based upon
Mathis at all. Instead, it is predicated upon the
categorical approach, a doctrine established more than a
decade before Smith's sentence was imposed. See
Taylor v. United States, 495 U.S. 575, 600-601
(1990); Shepard v. United States, 544 U.S. 13, 26
(2005). Therefore, it is a claim he could and must have
asserted before the trial court, upon direct appeal, or in a
motion pursuant to 28 U.S.C. § 2255. For these reasons,
his claims may not be pursued under 28 U.S.C. § 2241.
also challenges his sentence. The decidedly narrow scope of
relief under § 2241 applies with particular force to
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 this general rule,
permitting a challenge to a sentence to be asserted in a
§ 2241 petition, but 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. He was sentenced in 2013, long after
Booker was decided, and under a discretionary
guidelines regime. And as noted above, Smith's claims are
not based upon any recent Supreme Court decision. Instead, he
challenges the limited applicability of the categorical
approach on constitutional grounds, a situation in effect for
decades before his sentence was imposed. Smith's
challenge to his sentence, therefore, falls well outside the
limited exception articulated in Hill.
Smith's claim is wholly without merit. Determining
whether a prior conviction was for a “serious drug
offense” within the meaning of 18 U.S.C. §
924(e)(2)(A) may involve a complex assessment of whether the
prior offense involved the manufacture, distribution, or
possession with intent to do one of these things within the
meaning of the statute. Cf. United States v. Hinkle,
832 F.3d 569, 572-73 (5th Cir. 2016). When making that
assessment, the categorical approach guides the district
court when comparing each of the numerous elements which
collectively constitute the underlying offense against the
elements of its generic counterpart. See, e.g.,
Taylor, 495 U.S. at 591.
Smith's sentence was not enhanced under this statute.
Instead, his sentence was enhanced under the far simpler
provision found in 21 U.S.C. § 841(b)(1)(A) because he
had previously committed numerous “felony drug
offenses.” To qualify as a “felony drug offense,
” no detailed comparison of elements is required.
Rather, 21 U.S.C. § 802(44) merely requires that the
prior state or federal offense: (1) be punishable by more
than one year in prison, and (2) that it “prohibits or
restricts conduct relating to narcotic drugs, marihuana,
anabolic steroids, or depressant or stimulant
substances.” By its ...