United States District Court, E.D. Kentucky, Southern Division, London
OPINION & ORDER
E. WIER, UNITED STATES DISTRICT JUDGE
se Petitioner Joe Finley-a federal inmate-seeks a writ
of habeas corpus pursuant to 28 U.S.C. § 2241. Finley
challenges his sentence's career offender enhancement. DE
1. The Court conducts an initial review under 28 U.S.C.
§ 2243. For the following reasons and under the
applicable standards, the Court DENIES the
2003, Finley pleaded guilty to possessing an aggravated
quantity of cocaine base with distributive intent, in
violation of 21 U.S.C. § 841(a)(1). United States v.
Finley, No. 1:03-CR-18-C-1 (N.D. Tex. 2003)
(“Finley I”), at ECF No. 18. In exchange
for his plea, the Government agreed to dismiss other indicted
charges and to forbear filing a § 851 notice-which could
have resulted in a mandatory life sentence. Id. at
ECF No. 20. For his part, Finley agreed “not to contest
his conviction, judgment, and/or sentence in any
post-conviction proceeding, including, but not limited to, a
proceeding under 28 U.S.C. § 2255.” Id.
PSR reflects prior Texas convictions for delivery of a
simulated controlled substance, burglary of a building,
attempted murder, possession of cocaine, escape, and assault
-family violence. Finley v. United States, No.
1:16-CV-145-C (N.D. Tex. 2016) (“Finley
II”), ECF No. 19 at 7-9. The trial court concluded
that at least two of these convictions-the available record
does not disclose which-were for “crimes of
violence” or “controlled substance
offenses” under § 4B1.1(a) of the Sentencing
Guidelines. See, e.g., id. at 6, 9. Finley
thus qualified as a career offender. In October 2003, the
trial court sentenced Finley to 327 months of imprisonment,
at the top end of the applicable Guidelines range. Finley did
not appeal. Finley I, ECF Nos. 1, 20, 23, 27;
Finley II, ECF No. 19.
years after his conviction, on June 30, 2016, Finley filed
his first motion pursuant to 28 U.S.C. § 2255,
challenging the sentence. Finley asserted that: (1) as a
factual matter, the trial court enhanced his sentence
utilizing the Sentencing Guidelines' residual clause
found in U.S.S.G. § 4B1.2(a)(2); and (2) as a legal
matter, the Guidelines' residual clause-as applied to him
under the pre-Booker mandatory guidelines regime-was
void for vagueness under Johnson v. United States,
135 S.Ct. 2551, 2557 (2015). Importantly, Finley also filed a
claim, via amendment and a separate § 2255 motion,
challenging (as here) the second career offender predicate.
Finley II, ECF No. 18 at 7 (“Ground
Two”). The sentencing court consolidated the §
2255 motions, appointed Finley counsel, and addressed and
resolved all claims, all as part of Finley's
“first” § 2255 effort. See Id. at
ECF No. 21 at 1 (“This is Finley's first §
2255 motion.”). After appointing counsel, in July 2018,
the trial court denied Finley's motion after finding it:
(A) untimely under § 2255(f)(3), (B) barred by the
collateral attack waiver in Finley's plea agreement, and
(C) substantively meritless. Finley v. United
States, No. 1:16-CV-145-C (N.D. Tex. 2016), at ECF Nos.
18, 19 & 21. Finley, assisted by counsel, moved the Fifth
Circuit for a certificate of appealability. Finley v.
United States, No. 18-11246 (5th Cir. January 14, 2019).
As of this writing, the COA motion remains pending before the
Fifth Circuit. Id.
Finley contends that he was convicted of “delivery of a
simulated controlled substance” pursuant to V.T.C.A.
§ 481.112(a), and that following the Supreme Court's
decision in Mathis v. United States, 136 S.Ct. 2243
(2016), this offense no longer qualifies as a
“controlled substance offense” within the meaning
of U.S.S.G. § 4B1.2(b). DE 1-1 at 2-4. Perhaps
so.Nonetheless, the Court, upon thorough
review and for the following reasons, finds that Finley is
plainly not entitled to relief.
in his plea agreement Finley knowingly and voluntarily waived
the right to appeal or collaterally attack the conviction or
sentence. Such waivers are enforceable and apply to
proceedings under § 2241. Slusser v. United
States, 895 F.3d 437, 439 (6th Cir. 2018) (“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)),
cert. denied, No. 18-6807, 2019 WL 1005877 (Mem), at
*1 (Mar. 4, 2019). Finley bargained for and received a
substantial reduction in the potential sentence he faced in
exchange for, inter alia, his guilty plea and
collateral attack waiver. The sentencing court already
enforced the waiver to bar the claim Finley here presses.
See Finley II, ECF Nos. 21 at 2 (incorporating, as
dismissal bases, “each of the alternative reasons
stated in the United States's well-drafted
Response”), 19 at 9 (Government's third response
argument: “Finley's motion is waived.”). The
waiver likewise applies here. 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); Solis-Caceres v. Sepanek, No. 13-cv-21-HRW,
2013 WL 4017119, at *3 (E.D. Ky. Aug. 6, 2013) (collecting
Finley's Mathis claim is not properly cognizable
under § 2241. To challenge the legality of his federal
conviction or sentence (rather than the manner of its
implementation) a federal prisoner must generally file a
motion under 28 U.S.C. § 2255 in the court that
convicted and sentenced him. Capaldi v. Pontesso,
135 F.3d 1122, 1123 (6th Cir. 2003). Further, §
2255's savings clause, invokable in cases where the
§ 2255 remedy is “inadequate and ineffective to
test the legality of [ ] detention[, ]” is not
applicable simply because a prisoner failed to seek relief
under § 2255, or because a prior § 2255 was denied,
or because § 2255 relief is procedurally barred.
Charles v. Chandler, 180 F.3d 753, 756 (6th Cir.
1999). That is Finley's situation. The Supreme Court
issued its decision in Mathis on June 23, 2016, one
week before Finley filed his initial motion for relief under
28 U.S.C. § 2255. In 2018, post-Mathis, Finley
was twice allowed § 2255 amendments. Finley v.
United States, No. 1: 16-CV-145-C (N.D. Tex. 2016), at
ECF Nos. 1, 8, 18. “Unlike other prisoners who have
obtained review of their claims because they did not have a
prior opportunity to present their claims on appeal or in a
prior § 2255 motion to vacate, . . . [Finley] has had
multiple opportunities to challenge his conviction and
sentence on his asserted grounds . . . in his [ ] prior
§ 2255 motions to vacate.” Truss v.
Davis, 115 Fed.Appx. 772, 774 (2004). Finley clearly had
“meaningful time to incorporate” any
Mathis argument into his § 2255 filings.
See Hill v. Masters, 836 F.3d 591, 594-95 (6th Cir.
2016). Finley, facing the burden, failed to show that the
§ 2255 remedy was inadequate as to his current claims.
See Id. at 594.
“circumstances in which § 2255 is inadequate and
ineffective are narrow.” Id. (citation and
quotation marks omitted). As the Sixth Circuit has
“cautioned, ” prior denials, procedural bars, and
successive filing hurdles are not such circumstances.
Id. Finley had his shot and presented this precise
claim on § 2255 review. The fact that the sentencing
court rejected the argument does not mean that court's
review was “inadequate or ineffective to test the
legality of his detention.” 28 U.S.C. §
2255(e). The statutory text confirms that §
2255 inadequacy is separate from relief denial. Id.
(Courts shall not entertain § 2241 petitions if the
sentencing court has denied relief “unless it
also appears that the” § 2255
remedy is inadequate.) (emphasis added). This makes logical
and legal sense. For example, a prisoner who seeks §
2255 relief pursuant to a newly recognized retroactively
applicable right receives a fresh one-year statute of
limitations. See 28 U.S.C. § 2255(f)(3). In
short, § 2255 ensures its adequacy as a remedy in the
overwhelming majority of circumstances with built-in
loopholes through its own procedural walls. In other
circumstances, the Supreme Court has authorized relief from
§ 2255 procedural bars upon a showing of actual
innocence. Herrera v. Collins, 113 S.Ct. 853, 862
(1993) (“This rule, or fundamental miscarriage of
justice exception, is grounded in the ‘equitable
discretion' of habeas courts to see that federal
constitutional errors do not result in the incarceration of
2255 is thus the typical remedy for a sentence challenge;
Finley in fact made and lost such a challenge. Finley's
problem is not that § 2255 does not allow consideration
of claims based on newly recognized retroactively applicable
rights, rather the sentencing court found that the newly
recognized right that Finley relied on was not applicable to
his case, that the statute of limitations barred his claim,
and that Finley's agreed waiver of collateral attack
rights applied. Stated otherwise, it was Finley's claim,
not the § 2255 remedy, that was inadequate. The narrow
§ 2241 remedy, via the savings clause, allows
consideration of a sentence challenge only where the
Hill conditions exist. They do not here because
Finley was able to present the precise claim presented here
without jumping a successive § 2255 hoop. Hill,
836 F.3d at 595 (“When seeking to petition under §
2241 based on a misapplied sentence, 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) a sufficiently grave
error.). Thus, the Mathis challenge is not here
cognizable on § 2241 review.
these reasons and under the applicable standards, the Court
ORDERS as follows:
Court DENIES DE 1; and
Court will enter a separate Judgment striking the matter from
the active ...