United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
Gregory F.Van Tatenhove United States District Judge
Edwardo Gutierrez is an inmate at the United States
Penitentiary - McCreary in Pine Knot, Kentucky. Proceeding
without a lawyer, Gutierrez filed a 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
Gutierrez's petition. 28 U.S.C. § 2243;
Alexander v. Northern Bureau of Prisons, 419 F.
App'x 544, 545 (6th Cir. 2011).
2003, Gutierrez was convicted of conspiracy to possess more
than 1, 000 kilograms of marijuana with the intent to
distribute, possession of more than 1, 000 kilograms of
marijuana with the intent to distribute, and conspiracy to
possess more than 100 kilograms of marijuana with the intent
to distribute, all in violation of 21 U.S.C. §§ 841
and 846. During Gutierrez's criminal case, the
Government filed a notice pursuant to § 851, setting
forth his criminal history. That notice apparently indicated
that Gutierrez had a prior felony drug conviction. In light
of that information, the trial court sentenced Gutierrez to
the mandatory minimum of 20 years in prison pursuant to
§ 841(b)(1). The United States Court of Appeals for the
Fifth Circuit affirmed Gutierrez's convictions, and his
subsequent efforts to vacate his sentence were unsuccessful.
petition, Gutierrez 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).
thoroughly reviewed Gutierrez's petition [R. 1], as well
as his various amendments and supplemental arguments [R. 5,
8, 14], the Court must deny relief because Gutierrez's
claims are not cognizable in a habeas corpus petition under
§ 2241 and because they are without merit. A habeas
corpus 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 corpus 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 extraordinarily 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 she 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 she 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.”). The Supreme Court's newly-announced
interpretation must, of course, be retroactively applicable
to cases on collateral review. Wooten, 677 F.3d at
petition must be denied because his claims are not ones of
actual innocence, and hence are not cognizable in a §
2241 petition. Gutierrez 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, and hence falls outside the purview of
§ 2241. Second, it is not a claim based upon
Mathis at all; rather, it is predicated upon the
categorical approach, a doctrine established before
Gutierrez's sentence was imposed. See Taylor v.
United States, 495 U.S. 575, 600-601 (1990). It is
therefore 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 not his convictions, but 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.
sure, Gutierrez was sentenced before the Supreme Court
decided Booker, and he may be foreclosed from filing
a successive petition under § 2255. However,
Gutierrez's claims are not based upon any recent Supreme
Court decision, but instead challenge the limited
applicability of the categorical approach on constitutional
grounds. Moreover, 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
(6th Cir. 2017). Gutierrez's challenge to his sentence
therefore falls well outside the limited exception
articulated in Hill, and must be denied.
claim is also 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.
Gutierrez'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 ...