United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge.
Carlos Hernandez is an inmate confined at the United States
Penitentiary (USP)-McCreary in Pine Knot, Kentucky.
Proceeding without a lawyer, Hernandez has filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2241, seeking relief from his sentence. [R. 1.] Warden J.A.
Barnhart has filed his response to the petition [R. 9] and
Hernandez has filed a reply [R. 12]. Thus, this matter is
ripe for review.
2011, Hernandez was charged in an indictment issued by a
grand jury sitting in the United States District Court for
the Western District of Texas with racketeering in violation
of 18 U.S.C. § 1962(c) (a provision of the Racketeer
Influenced and Corrupt Organizations Act (RICO)) (Count One),
conspiracy to racketeer in violation of 18 U.S.C. §
1962(d) (Count Two), and conspiracy to possess with intent to
distribute five kilograms or more of cocaine and marijuana in
violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count
Three). In February 2012, Hernandez was convicted by a jury
on all counts.
to trial, the United States filed a notice pursuant to 21
U.S.C. § 851 that it would seek an enhanced penalty for
his sentence for Count Three due to Hernandez's two prior
felony drug convictions. Specifically, Hernandez had two
prior separate convictions for possession of a controlled
substance in violation of Texas law. Accordingly, pursuant to
21 U.S.C. § 841(b)(1)(A), Hernandez was subject to a
mandatory term of life imprisonment.
2012, Hernandez was sentenced to a term of imprisonment of
324 months on each of Counts One and Two and a term of life
imprisonment on Count Three, to be served concurrently with
each other and with a sentence imposed in United States
v. Hernandez, No. 7:09-CR-344-RAJ-1 (W.D. Texas).
Hernandez's conviction was affirmed on appeal to the
United States Court of Appeals for the Fifth Circuit,
United States v. Hernandez-Mandujano, 721 F.3d 357
(5th Cir. 2013) and his motions for post-conviction relief
filed pursuant to 28 U.S.C. § 2255 have been denied.
However, in November 2017, Hernandez's motion for
sentence reduction pursuant to 18 U.S.C. § 3582 was
granted and his previously-imposed sentence of 324 months
each on Counts One and Two was reduced to a sentence of 292
months on each Count. However, the life sentence imposed on
Count Three remained in effect. See United States v.
Hernandez, No. 7:11-CR-212-RAJ (W.D. Texas).
petition for a writ of habeas corpus filed in this Court
pursuant to 28 U.S.C. § 2241, Hernandez argues that the
enhancement of his sentence pursuant to 21 U.S.C. §
841(b)(1)(A) was improper in light of the United States
Supreme Court's subsequent decisions in Descamps v.
United States, 133 S.Ct. 2276 (2013), and Mathis v.
United States, 136 S.Ct. 2243 (2016), as well as the
decisions of the United States Court of Appeals for the Sixth
Circuit in Hill v. Masters, 836 F.3d 591 (6th Cir.
2016) and the United States Court of Appeals for the Fifth
Circuit in United States v. Hinkle, 832 F.3d 569
(5th Cir. 2016). Hernandez claims that, in light of
Mathis, neither of his prior state drug convictions
used to enhance his federal sentence meet the federal
definition of a “felony drug offense, ” thus the
use of these prior convictions as predicate offenses violated
his due process rights. [R. 1; R. 1-1.] Although his argument
is not entirely clear, the gist of his claim appears to be
that, in light of Mathis, the “categorical
approach” should be applied to his prior state offenses
to determine whether the elements of his prior convictions
were the same or more narrow than the elements of a
“felony drug offense” as defined by 21 U.S.C.
§ 802(44). [R. 1-1.]
having thoroughly reviewed the petition, the response filed
by Respondent, and Hernandez's reply, the Court must deny
relief. Hernandez's claims are not cognizable in a habeas
corpus petition under § 2241, and also, they are without
federal prisoner generally may not use a § 2241 petition
to challenge the enhancement of his sentence. See United
States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001).
Rather, a prisoner who wishes to challenge the legality of
his conviction or sentence must file a motion under §
2255. Id. (explaining the distinction between a
§ 2255 motion and a § 2241 petition). A § 2241
petition 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 Fed.Appx. 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
Fed.Appx. 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 Fed.Appx. 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, 16 Fed.Appx. at 360.
decidedly narrow scope of relief under § 2241 applies
with particular force to challenges not to convictions, but
to the sentence imposed. Peterman, 249 F.3d at 462;
Hayes v. Holland, 473 Fed.Appx. 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 or her federal sentence no
longer qualified as a valid predicate offense. Hill,
836 F.3d at 599-600.
claims fail to satisfy at least the first and third
requirements. Hernandez was sentenced in 2012, long after
Booker was decided. See Contreras v.
Ormond, No. 18-5020 at 2- 3 (6th Cir. Sept. 10, 2018)
(petitioner did not fall within the narrow exception
recognized by Hill because he was sentenced
post-Booker in 2009, under the advisory sentencing
guidelines). In addition, to the extent that Hernandez claims
that the use of his prior convictions to enhance his sentence
violated his due process rights, this is not a claim based
upon statutory interpretation but is instead a constitutional
claim. 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, and thus falls
outside the purview of § 2241.
Hernandez argues that his sentence was improperly enhanced
because his predicate convictions were not analyzed using the
“categorical approach” applied in
Mathis, Descamps, and Hinkle.
However, both Mathis and Descamps addressed
the proper procedures to be used when determining whether a
conviction qualifies as a predicate offense under the
“enumerated offenses” clause of the definition of
“violent felony” in the Armed Career Criminal
Acts (ACCA), 18 U.S.C. § 924(e). Similarly, in
Hinkle, the United States Court of Appeals for the
Fifth Circuit applied the categorical approach of
Mathis to determine whether a ...