United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE.
Parham is an inmate at the United States Penitentiary -
McCreary in Pine Knot, Kentucky. Proceeding without a lawyer,
Parham filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241. [R. 1.] The Respondent has now
filed a response to that petition [R. 11], and the time for
Parham to file a reply brief has expired. This matter is
therefore ripe for a decision. For the reasons set forth
below, the Court will deny Parham's petition.
2009, a federal grand jury indicted Parham, charging him with
multiple drug- and gun-related crimes. See United States
v. Marcus Parham, No. 5:08-cr-051 at R. 21 (W.D. N.C.
2009). Parham eventually pled guilty to three counts-count
one, conspiracy to distribute and to possess with the intent
to distribute cocaine base and cocaine, in violation of 21
U.S.C. §§ 841 and 846; count three, aiding and
abetting the possession of firearms in furtherance of a drug
trafficking offense, in violation of 18 U.S.C. §§
924(c) and 2; and count five, being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g). See
Id. at R. 54, R. 70.
respect to count one, the United States filed a notice
pursuant to 21 U.S.C. § 851 indicating that Parham had
previously been convicted in Pennsylvania of possession with
the intent to deliver a controlled substance. See
Id. at R. 19. Since that prior conviction was a felony
drug offense, Parham was subject to a 20-year mandatory
minimum sentence on count one pursuant to 21 U.S.C. §
841(b)(1)(A). See Id. Notably, however, the United
States pointed out that, pursuant to the plea agreement, it
was “foregoing the filing of a second prior drug
conviction criminal information which would have otherwise
exposed the defendant to a term of life imprisonment
mandatory minimum” pursuant to § 841(b)(1)(A).
See Id. at R. 85 at 12.
respect to count three, Parham was subject to a 5-year
mandatory minimum sentence on that count, and that term had
to run consecutive to any other term of imprisonment imposed
by the trial court. See Id. at R. 70 (citing 18
U.S.C. § 924(c)).
respect to count five, the trial court determined that Parham
was subject to a 15-year mandatory minimum sentence on that
count pursuant to the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e). That is because Parham had at least
three prior convictions for a violent felony or serious drug
offense. Specifically, Parham had two prior Pennsylvania
convictions for possession with the intent to distribute a
controlled substance, both of which the trial court concluded
were serious drug offenses, as well as a prior murder
conviction, which the trial court concluded was a violent
felony. [R. 15-1 at ¶¶ 31, 39, 43-44, 69-70].
in calculating Parham's advisory sentencing guidelines
range, the trial court determined that he was also a career
offender pursuant to § 4B1.1 of the United States
Sentencing Guidelines (U.S.S.G.). That is because
Parham's two prior Pennsylvania drug convictions
constituted “controlled substance offenses” under
§ 4B1.1. As a result, the trial court concluded that
Parham's advisory guidelines range was 322 to 387 months
in prison. [R. 15-1 at ¶¶ 30, 35, 70].
said, the trial court varied downward and ultimately
sentenced Parham to 20 years in prison on each of counts one
and five, to be served concurrently, and 5 years in prison on
count three, to run consecutive to the term imposed in counts
one and five. Thus, the trial court sentenced Parham to a
total of 25 years in prison. See Parham, No.
5:08-cr-051 at R. 70, R. 71. Parham did not file a direct
appeal, and his efforts to vacate his sentence pursuant to 28
U.S.C. § 2255 were unsuccessful. See Id. at R.
86, R. 106, R. 130.
has now filed a § 2241 petition with this Court. The
crux of Parham's argument is, in light of intervening
case law, his prior Pennsylvania drug convictions are no
longer valid predicate offenses for purposes of a sentence
enhancement under either the U.S.S.G. or the ACCA. To support
his petition, Parham cites several Supreme Court decisions,
including but not limited to Descamps v. United
States, 133 S.Ct. 2276 (2013), and Mathis v. United
States, 136 S.Ct. 2243 (2016), as well as a number of
federal circuit court cases.
initial matter, Parham waived his right to collaterally
attack his sentence. Indeed, Parham specifically said in his
plea agreement that he “waives all rights to
appeal or collaterally attack the sentence of
conviction” except as to claims of ineffective
assistance of counsel or prosecutorial misconduct. [R. 15 at
¶¶ 16-17 (emphasis added)]. This broad waiver
precludes the arguments that Parham makes in this case. As
this Court has recognized on numerous occasions, such waivers
are valid and enforceable in § 2241 proceedings.
See, e.g., Conley v. Quintana, No. 5:17-cv-488 at R.
4 (E.D. Ky. Dec. 15, 2017); Ewing v. Sepanek, No.
0:14-cv-111-HRW (E.D. Ky. Jan. 6, 2015); Solis-Caceres v.
Sepanek, No. 0:14-cv-021-HRW (E.D. Ky. Aug. 6, 2013)
(collecting cases); Combs v. Hickey, No.
5:11-cv-012-JMH (E.D. Ky. Jan. 7, 2011). In short, Parham is
barred from challenging his sentence in his habeas petition.
said, even if Parham's collateral attack waiver was not
enforceable, his § 2241 petition would still constitute
an impermissible collateral attack on his sentence. Although
a federal prisoner may challenge the legality of his sentence
on direct appeal and through 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, Parham cannot use a § 2241
petition as a way of challenging his sentence.
nevertheless suggests that he can attack his sentence in a
§ 2241 petition. It is true that, in Hill v.
Masters, 836 F.3d 591 (6th Cir. 2016), the United States
Court of Appeals for the Sixth Circuit indicated for the
first time that a prisoner may challenge his sentence in a
§ 2241 petition. However, the Sixth Circuit explained
that the petitioner must show “(1) a case of statutory
interpretation, (2) that is retroactive and could not have
been invoked in the initial § 2255 motion, and (3) that
the misapplied sentence presents an error sufficiently grave
to be deemed a miscarriage of justice or a fundamental
defect.” Hill, 836 F.3d at 595. The
Court also explained that its decision addressed only a
narrow subset of § 2241 petitions-those involving a
“subsequent, retroactive change in statutory
interpretation by the Supreme Court [that] reveals that a
previous conviction is not a predicate offense for a
career-offender enhancement.” Id. at 600.
circumstances do not apply in this case. Most importantly,
Parham's 25-year sentence represents the mandatory
minimum he could have received on counts one and three
pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 18 U.S.C.
§ 924(c). [See R. 15-1 at ¶ 69 (explaining
this point)]. Thus, even if Parham was right and intervening
case law had made it clear that he was no longer subject to
sentence enhancements under either the U.S.S.G. or the ACCA,
he would still be subject to the exact same mandatory minimum
sentence because of his convictions on counts one and three.
As a result, Parham cannot establish that his sentence
represents a miscarriage of justice or fundamental defect.
even if Parham's arguments were relevant, he still has
not identified a subsequent, retroactive change in statutory
interpretation by the Supreme Court that reveals that his
previous Pennsylvania drug convictions are not predicate
offenses for purposes of a career-offender enhancement. While
Parham has cited Descamps and Mathis, those
cases discuss the approach courts should use to determine
whether a prior conviction constitutes a violent felony for
purposes of the ACCA. Here, the trial court determined that
Parham's two prior Pennsylvania drug convictions
constituted “serious drug offenses” for purposes
of the ACCA enhancement and “controlled substance
offenses” for purposes of the § 4B1.1 enhancement.
Parham has not clearly identified any case law that undercuts
this conclusion. In fact, if anything, the case law cited by
the United States indicates that Parham's prior
convictions do constitute valid predicate offenses
for purposes of the sentence enhancements. See, e.g.,
United States v. Glass, 904 F.3d 319, 323-24 (3rd Cir.