United States District Court, E.D. Kentucky, Southern Division
WILLIAM R. HUMPHREY, Petitioner,
J. BARNHART, Warden, Respondent.
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE
inmate William R. Humphrey has filed a pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 challenging the enhancement of his federal
sentence. [R. 1] This matter is before the Court to conduct
an initial review of the petition as required by 28 U.S.C.
November 2014, Humphrey pleaded guilty to possession with
intent to distribute cocaine in violation of 21 U.S.C. §
841(a) and to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). The drug charge
carried a maximum sentence of 20 years imprisonment because
Humphrey had previously been convicted of a felony drug
offense. 21 U.S.C. § 841(b)(1)(A). The firearms charge
would normally have carried a 10-year maximum term, but
Humphrey was subject to the Armed Career Criminal Act's
15-year mandatory minimum because he had three or more prior
convictions for a violent felony or a serious drug offense.
18 U.S.C. §§ 924(a)(2), (e)(1).
of his plea agreement, Humphrey expressly agreed that he
qualified both as an armed career criminal pursuant to §
924(e)(1) and as a career offender pursuant to U.S.S.G.
§ 4B1.1. Both parties agreed to recommend a 15-year
sentence. Humphrey further expressly waived his right to file
any appeal if the court imposed the recommended sentence, and
waived “the right to challenge the sentence imposed in
any collateral attack, including, but not limited to, a
motion brought pursuant to 28 U.S.C. § 2255 and/or
§ 2241, and/or 18 U.S.C. § 3582(c).” The
trial court accepted the plea agreement, and consistent with
it imposed a 15-year sentence. Humphrey did not file an
appeal or any motion for collateral relief pursuant to 28
U.S.C. § 2255. United States v. Humphrey, No.
3: 14-CR-28-1 (M.D. Tenn. 2014).
petition, Humphrey contends that the phrase “serious
drug offense” found in 18 U.S.C. § 924(e)(1) is
unconstitutionally vague under the Fifth Amendment in light
of the Supreme Court's recent decision in Sessions v.
Dimaya, __ U.S. __, 138 S.Ct. 1204 (2018). He also asserts
that his right under the Sixth Amendment to effective
representation by counsel under Strickland v.
Washington, 466 U.S. 668 (1984) was denied when his
attorney failed to challenge the enhancement of his sentence
on this ground. Humphrey asserts that he may pursue these
claims in a § 2241 petition in light of the Sixth
Circuit's decision in Hill v. Masters, 836 F.3d
591 (2016). [R. 1 at Page ID #4-5; R. 1-1 at Page ID # 6-14]
Court must deny the petition, however, on several grounds.
First, as part of his plea agreement Humphrey expressly
waived his right to collaterally attack his sentence. Such
waivers are enforceable to preclude collateral attacks in
habeas proceedings under § 2241, especially where §
2241 is expressly identified as falling within the scope of
the waiver. Rivera v. Warden, FCI, Elkton, 27
Fed.Appx. 511, 515 (6th Cir. 2001); United States v.
Bryant, 663 Fed.Appx. 420 (6th Cir. 2016). See also
Muller v. Sauers, 523 Fed.Appx. 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 …”);
Johnson v. Warden, 551 Fed.Appx. 489, 491 (11th Cir.
2013); Muse v. Daniels, 815 F.3d 265, 267 (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.”); 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.”). Here,
Humphrey bargained for a substantial reduction in the 35-year
sentence he faced by agreeing to the terms of a plea
agreement which included a waiver of his right to challenge
that sentence by any means, whether by direct appeal or
collateral attack. That agreement is enforceable to bar his
challenge in this habeas proceeding.
Humphrey may not assert his claims in a habeas corpus
petition under § 2241. A federal prisoner must file a
motion under 28 U.S.C. § 2255 to challenge the legality
of his conviction or sentence. United States v.
Peterman, 249 F.3d 458, 461 (6th Cir. 2001). A habeas
corpus petition under 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 Fed.Appx. 317,
320 (6th Cir. 2001).
“savings clause” of 28 U.S.C. § 2255(e)
provides a narrow exception to this rule where § 2255 is
structurally “inadequate or ineffective” to seek
relief. The exception does not apply simply because that
remedy under § 2255 is no longer available, whether
because the prisoner did not file a § 2255 motion, the
time to do so has passed, or the motion was denied on
substantive grounds. Copeland v. Hemingway, 36
Fed.Appx. 793, 795 (6th Cir. 2002).
Sixth Circuit, a prisoner may challenge the enhancement of
his federal sentence in a § 2241 petition 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 v. Masters, 836 F.3d 591, 595, 599-600
(6th Cir. 2016).
claims fail to satisfy at least the first and third
requirements. Humphrey was sentenced in 2014, nearly a decade
after Booker was decided, under a discretionary
guidelines regime. See Contreras v. Ormond, No.
18-5020 at p. 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, Humphrey's substantive claim under
Dimaya is that the enhancement of his sentence under
§ 924(e)(1) is unconstitutional under the Fifth
Amendment because the phrase “serious drug
offense” is impermissibly vague. This claim does not
hinge upon a Supreme Court decision of statutory
interpretation: it is a constitutional claim that - like a
claim under Johnson v. United States, __ U.S. __,
135 S.Ct. 2551 (2015) - must be asserted if at all pursuant
to 28 U.S.C. § 2255(h)(2). Welch v. United
States, __ U.S. __, 136 S.Ct. 1257 (2016) (holding
that Johnson (2015) is retroactively applicable to
cases on collateral review, and hence can be asserted as a
ground for relief in a second or successive § 2255
motion pursuant to 28 U.S.C. § 2255(h)(2)); In re
Watkins, 810 F.3d 375, 377 (6th Cir. 2015). See also
Rosello v. Warden F.C.I. Allenwood, 735 Fed.Appx.
766, 768 n.5 (3d Cir. 2018) (holding that claims under
Johnson and Dimaya are “precisely the
type of constitutional claim[s] that can be pursued in a
second or successive § 2255 motion”);
Kniebes-Larsen v. United States, Civ. No. 18-1261
(JNE/BRT), 2018 WL 6204966, at *2-3 (D. Minn. Oct. 2, 2018).
Humphrey's constitutional claim is of the kind that can
be asserted under § 2255, and thus that remedy is not
structurally “inadequate and ineffective” to test
the legality of his detention, rendering resort to §
2241 impermissible. Truss v. Davis, 115 Fed.Appx.
772, 773-74 (6th Cir. 2004); McDowell v. Warden, FCC
Medium Coleman, 694 Fed.Appx. 692, 693-94 (11th Cir.
Humphrey's claim that he was denied the effective
assistance of counsel as guaranteed by the Sixth Amendment is
a constitutional claim of ordinary trial error which could,
and therefore must have been, pursued on direct appeal or in
an initial motion under § 2255. Cf. Mallard v.
United States, 82 Fed.Appx. 151, 153 (6th Cir. 2003)
(claim under Strickland that counsel was ineffective
may not be pursued under § 2241); Jameson v.
Samuels, 555 Fed.Appx. 743, 746 (10th Cir. 2014) (habeas
petition under § 2241 is not the proper vehicle to
assert claims of prosecutorial misconduct, ineffective
assistance of counsel, and lack of probable cause for
it is ORDERED as follows:
1. Petitioner William R. Humphrey's petition for a writ
of habeas corpus pursuant to 28 U.S.C. § ...