United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION LONDON & ORDER.
Gregory F. Van Tatenhove United States District Judge.
Pena is an inmate at the United States Penitentiary (USP) -
McCreary in Pine Knot, Kentucky. Proceeding without a lawyer,
Pena recently filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. [R. 1; R. 6.] For the
reasons set forth below, the Court will deny Pena's
1999, a jury convicted Pena of violating and conspiring to
violate the Racketeering Influenced and Corrupt Organizations
(RICO) Act. See United States v. Victor Pena, No.
5:98-cr-265 at R. 904 (W.D. Tex. 1999). The trial court then
sentenced Pena to life in prison. See Id. at R.
1054. Pena filed a direct appeal, but the United States Court
of Appeals for the Fifth Circuit affirmed the district
court's judgment. See Id. at R. 1148. Pena's
subsequent efforts to vacate his sentence pursuant to 28
U.S.C. § 2255 were unsuccessful.
has now filed a § 2241 petition with this Court, and he
puts forth two arguments in support of his petition. [R. 1 at
1.] First, Pena claims that the trial court enhanced his
sentence under § 2A1.1 of the United States Sentencing
Guidelines “on the basis of Racketeering Act #13 (a
robbery . . . that resulted in death) and Act #20 (the murder
of Adam Tenorio by stabbing).” [R. 1 at 2.] Pena says
that this enhancement raised his “offense level to 43,
which called for a mandatory sentence of life” under
the then-mandatory Sentencing Guidelines. [R. 1 at 2.] Pena
argues that, in light of the United States Supreme
Court's decisions in Descamps v. United States,
133 S.Ct. 2276 (2013), and Mathis v. United States,
136 S.Ct. 2243 (2016), his life sentence “is
unconstitutional” and “he is actually innocent of
the sentencing enhancement.” [R. 1 at 1-2.] Second,
Pena claims that the trial court also determined that he was
a career offender under § 4B1.1 of the Sentencing
Guidelines and its residual clause. Pena argues that this
enhancement “is also unconstitutional” in light
of the Supreme Court's decisions in Johnson v. United
States, 135 S.Ct. 2251 (2015), and Sessions v.
Dimaya, 548 U.S.____ (2018). [R. 1 at 10.]
§ 2241 petition, however, constitutes an impermissible
collateral attack on his underlying sentence. While a federal
prisoner may challenge the legality of his sentence in 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,
Pena cannot use a § 2241 petition as a way of
challenging his underlying sentence.
sure, as Pena points out, there is a limited exception under
which federal prisoners have been permitted to challenge the
validity of their sentence in a § 2241 petition.
However, the United States Court of Appeals for the Sixth
Circuit has explained that a prisoner can only proceed in
this manner if he can demonstrate, among other things, that
“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.” Hill v. Masters, 836 F.3d 591,
600 (6th Cir. 2016).
exception does not provide Pena with the relief he is
seeking. First, the exception does not apply to Pena's
argument that the trial court erroneously sentenced him to
life in prison pursuant to the § 2A1.1 enhancement.
After all, that enhancement related to Pena's offense
conduct, not his criminal history and whether it could be
used for purposes of a career-offender enhancement. Thus,
there is simply no merit to Pena's claim that
Hill and the Supreme Court cases he cites provides
him relief from his life sentence pursuant to the §
2A1.1 enhancement. Second, while Pena argues that his
“career criminal enhancement under § 4B1.1 is also
unconstitutional in light of Johnson . . . and . . .
Dimaya, ” this argument is not proper in a
§ 2241 petition. That is because Johnson and
Dimaya both involved specific constitutional
questions, not alleged changes in statutory interpretation.
Thus, the Hill exception, which requires a
petitioner to cite “a subsequent, retroactive change in
statutory interpretation by the Supreme Court,
” Hill, 836 F.3d at 600 (emphasis added), is
Pena's § 2241 petition constitutes an impermissible
collateral attack on his underlying sentence. Accordingly, it
is ORDERED as follows:
1. Pena's petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241 [R. 1; R. 6] is
2. This action is DISMISSED and
STRICKEN from the ...