United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER DENYING HABEAS
HORN BOOM, UNITED STATES DISTRICT COURT JUDGE
Preston Bryson is a prisoner confined at the Federal
Correctional Institution (“FCI”)-Manchester,
located in Manchester, Kentucky. Proceeding without a lawyer,
Bryson has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241, seeking relief from his
sentence. [R. 1] Although there was a delay in his submission
of the $5.00 filing fee, his filing fee has now been paid.
filed under § 2241 are subject to initial screening by
the Court required by 28 U.S.C. § 2243. Alexander v.
Northern Bureau of Prisons, 419 Fed.Appx. 544, 545 (6th
Cir. 2011). A petition will be denied “if it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief.” Rule 4 of the
Rules Governing § 2254 Cases in the United States
District Courts (applicable to § 2241 petitions pursuant
to Rule 1(b)). See also Alexander, 419 Fed.Appx. at
545 (applying the pleading standard set forth in Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009), to habeas corpus
September 2016, Bryson was charged in an indictment issued by
a grand jury sitting in the United States District Court for
the Western District of Tennessee with being a felon in
possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a) and (e) (Count 1). See
United States v. Bryson, Case No. 1:16-cr-10099-JDB (W.
D. Tenn.) at [R. 2], Indictment. In April 2017, pursuant to a
plea agreement with the United States, Bryson pled guilty to
Count 1. Id. at [R. 19; R. 21]. With respect to an
agreed-upon sentence, the plea agreement provides that:
3. This plea is being made pursuant to Rule 11(c)(1)(C) of
the Federal Rules of Criminal Procedure. If the defendant is
determined to be an armed career criminal, the parties agree
that the appropriate sentence in this case is 180 months
incarceration. If the Court should not sentence the defendant
to the recommended sentence, then the defendant will be
allowed to withdraw his guilty plea and the United States
will be released from the terms of the agreement.
4. If the defendant is determined not to be an armed career
criminal, then the parties agree to recommend a sentence at
the low end of the United States Sentencing Guidelines as
determined by the Court.
Id. The plea agreement also contains a waiver
provision, pursuant to which Bryson agreed to waive his right
to appeal any sentence imposed unless the sentence exceeds
the statutory maximum or is the result of an upward departure
from the guideline range established by the Court at
2017, Bryson was sentenced to a term of imprisonment of 180
months on Count One, to be served concurrently with sentences
imposed by a Tennessee state court. Id. at [R. 29],
Redacted Judgment. Bryson did not appeal his conviction or
sentence, nor has he filed any motions for post-conviction
relief pursuant to 28 U.S.C. § 2255.
petition, Bryson 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. Bryson 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, 1-1]
Bryson's petition must be denied. First, to the extent
that Bryson waived his right to collaterally attack his
sentence in his plea agreement, such waivers are enforceable
to preclude collateral attacks in habeas proceedings under
§ 2241. 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,
Bryson bargained for a recommendation of a sentence of 180
months by the United States, as well as an agreement to
recommend a three-level reduction from the total offense
level for acceptance of responsibility, by agreeing to the
terms of a plea agreement which included a waiver of his
right to appeal. United States v. Bryson, Case No.
1:16-cr-10099-JDB (W. D. Tenn.) at [R. 21; R. 24].
even putting this waiver aside, Bryson is still precluded
from relief because he may not assert his claim in a habeas
corpus petition filed pursuant to 28 U.S.C. § 2241. A
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. Bryson was sentenced to an agreed-upon sentence
in 2017, long after Booker was decided. 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, Bryson'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 ...