United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
HORN BOOM, UNITED STATES DISTRICT COURT JUDGE
inmate Marcus Proctor has filed a pro se petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241
contending that he should not have been sentenced as a career
offender in light of the Supreme Court's decision in
Mathis v. United States, 136 S.Ct. 2243 (2016). [R.
1] This matter is before the Court to conduct an initial
review of the petition. 28 U.S.C. § 2243; Alexander
v. Northern Bureau of Prisons, 419 Fed.Appx. 544, 545
(6th Cir. 2011).
March 2012, Proctor agreed to plead guilty in Paducah,
Kentucky to three counts of trafficking in crack cocaine in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), (C). For
its part, the United States agreed not to file a notice under
21 U.S.C. § 851 which would have increased the sentence
Proctor faced to a mandatory minimum of twenty years
imprisonment. As part of the plea agreement, Proctor
knowingly and voluntarily waive[d] the right (a) to directly
appeal his convictions, the resulting sentence, and any
claims of ineffective assistance of counsel pursuant to Fed.
R. App. P. 4(b) and 18 U.S.C. § 3742, and (b) to contest
or collaterally attack his convictions, the resulting
sentence, and any claims of ineffective assistance of counsel
pursuant to 28 U.S.C. § 2255 or otherwise.
had previously been convicted in Kentucky and Arkansas on
drug trafficking charges. Based on those convictions, the
trial court concluded that he had two or more convictions for
“controlled substance offenses, ” and enhanced
his sentence pursuant to the career offender provision found
in Section 4B1.1 of the Sentencing Guidelines. In July 2012
the trial court sentenced Proctor to 188 months imprisonment.
In 2017 Proctor filed a motion to vacate pursuant to 28
U.S.C. § 2255 to challenge his classification as a
career offender in light of the Supreme Court's decision
in Mathis. The trial court denied the motion as
untimely, and the Sixth Circuit declined to issue a
certificate of appealability. United States v.
Proctor, No. 5: 11-CR-30-TBR (W.D. Ky. 2011) [R. 1, 22,
27, 32, 36, 44, 45 therein].
habeas corpus petition filed by Proctor pursuant to 28 U.S.C.
§ 2241 reiterates his Mathis claim. However,
Proctor's petition must be denied for several reasons.
First, as part of his plea agreement Proctor knowingly and
voluntarily waived his right to appeal or collaterally attack
his conviction or sentence. Such waivers are enforceable and
apply to proceedings under § 2241. Slusser v. United
States, 895 F.3d 437, 439 (6th Cir.) (“It is
well-settled that a knowing and voluntary waiver of a
collateral attack is enforceable.”) (citing Watson
v. United States, 165 F.3d 486, 489 (6th Cir. 1999)),
petition for cert. filed, No. 18-6807 (Nov. 26,
2018). In his plea agreement, Proctor bargained for and
received a substantial reduction in the sentence he faced in
exchange for his agreement to plead guilty and to waive his
right to challenge his conviction or sentence by any means,
whether by direct appeal or collateral attack. Proctor is
therefore barred from challenging his conviction or sentence
in this proceeding. Moser v. Quintana, No. CV 5:
17-386-DCR, 2017 WL 5194507, at *2 (E.D. Ky. Nov. 9, 2017),
aff'd, No. 17-6421 (6th Cir. June 21, 2018);
Rivera v. Warden, FCI, Elkton, 27 Fed.Appx. 511, 515
(6th Cir. 2001).
addition, Proctor may not assert his claims in a § 2241
petition. A prisoner must challenge his federal conviction or
sentence by filing a § 2255 motion in the court that
convicted and sentenced him. Capaldi v. Pontesso,
135 F.3d 1122, 1123 (6th Cir. 2003). Under a narrow exception
to this rule, a prisoner may challenge the enhancement of his
federal sentence in a § 2241 petition, but only if: (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).
fails to meet Hill's threshold requirement
because he was sentenced in 2012, long after Booker
rendered the sentencing guidelines advisory. Arroyo v.
Ormond, No. 6: 17-CV-69-GFVT (E.D. Ky. 2017),
aff'd, No. 17-5837 (6th Cir. April 6, 2018)
(“Arroyo was sentenced in October 2006, after the
Supreme Court's decision in Booker ... On this
basis alone, Arroyo's claim does not fall within
Hill's limited exception for bringing a §
2241 habeas petition to challenge a federal
sentence.”); Contreras v. Ormond, No. 6:
17-CV-329-GFVT (E.D. Ky.), aff'd, No. 18-5020 at
p. 2-3 (6th Cir. Sept. 10, 2018); Anderson v.
Ormond, No. 6:18-CV-254-CHB, 2018 WL 6594539, at *3-4
(E.D. Ky. Dec. 14, 2018), appeal filed, No. 19-5010
(6th Cir. 2019). Proctor's petition thus constitutes an
impermissible collateral attack and must be denied.
it is ORDERED as follows:
Marcus Proctor's petition for a writ of habeas corpus
[R. 1] is DENIED.
action is DISMISSED and