United States District Court, E.D. Kentucky, Northern Division, Ashland
OPINION AND ORDER
R. WILHOIT JR. UNITED STATES DISTRICT JUDGE.
inmate Andrew Nickolaus has filed a pro se petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2241. [D. E. No. 1] The Court has reviewed the petition,
concludes that it must be denied.
November 2012, Nickolaus agreed to plead guilty to
distribution of child pornography in violation of 18 U.S.C.
§ 2252(a)(2) (Count I) and possession of child
pornography in violation of 18 U.S.C. § 2252(a)(4)(B)
(Count II). As part of the plea agreement, Nickolaus
expressly agreed that he faced a punishment of 5-20 years
imprisonment on Count I and up to 10 years imprisonment on
Count II, with these terms to be served either concurrently
or consecutively. Nickolaus also waived his right to appeal
or collaterally attack his conviction or sentence.
Presentence Investigation Report increased Nickolaus'
offense level by a combined twenty levels under the
Sentencing Guidelines based upon the number of images
involved, the content of those images, the manner of their
distribution, and his previous exploitation of minors. See
U.S.S.G. § 2G2.2(b)(2), (4), (5), (6), (7) (2013). In
March 2013, the trial court imposed a 210-month sentence on
Count I and an 87-month sentence on Count II, those terms to
be served concurrently. The resulting sentence was well below
the 267-month bottom end of the applicable guidelines range.
Nickolaus appealed ten months later, but the Seventh Circuit
dismissed the appeal as untimely. He also sought relief in
2015 and 2016 by motion under 28 U.S.C. § 2255, but
those motions were denied as untimely and as barred by the
collateral attack waiver. United States v.
Nickolaus, No. 1: 12-CR-93-TWP-MJD-1 (S.D. Ind. 2012).
present § 2241 petition, Nickolaus relies upon
United States v. Morrissey, 895 F.3d 541 (8th Cir.
2018) to contend that the indictment in his case was
defective because it did not allege that the pornographic
images depicted a minor under twelve years of age and did not
identify which images were possessed and which were
distributed. He therefore contends that it was improper
to apply 18 U.S.C. § 2252(b)(2), which increases the
statutory maximum sentence for the possession offense from 10
to 20 years. [D. E. No. 1 at 3, 6-7; D.E. No. 1-1 at 9-12]
Nickolaus also contends that the failure to submit the
question of the age of the minor depicted in the images to
the jury was a violation of his Sixth Amendment rights under
Alleyne v. United States, 570 U.S. 99 (2013).
[Id. at 10-11]. Nickolaus finally challenges a
handful of other sentencing determinations made by the trial
court to increase his offense level under the Sentencing
Guidelines, citing to several court decisions issued long
before his sentence was imposed. [D. E. No. 15-18]
petition must be denied for several reasons. First and
foremost, his primary arguments are based upon a false
factual premise: that the government relied upon §
2252(b)(2) to increase his statutory maximum sentence for
possession of child pornography under § 2252(a)(4) from
ten to twenty years. That premise is refuted by the record.
In the plea agreement, the parties correctly recited that he
faced a statutory maximum sentence often years on Count II
(the possession offense), not twenty. Further, the trial
court imposed an 87-month sentence for that offense, well
below the 120-month maximum sentence even without §
2252(b)(2)'s enhancement to 240 months for cases
involving depictions of minors below 12 years of age. And the
"below 12 years of age" enhancement only applies to
possession offenses under subsection (a)(4), not distribution
offenses under (a)(2), which already carry a 20-year maximum
sentence pursuant to § 2252(b)(1). Therefore neither
Morrissey nor Alleyne have any bearing upon
Nickolaus' case, and his claims based upon them are
substantively without merit.
petition is also barred by the collateral attack waiver he
agreed to as part of his plea agreement. 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)). In his plea agreement, Nickolaus 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. Nickolaus 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).
claims also may not be pursued under § 2241. A federal
prisoner must challenge his conviction or sentence on direct
appeal or through a motion under 28 U.S.C. § 2255.
United States v. Peterman, 249 F.3d 458, 461 (6th
Cir. 2001). A petition under § 2241 may generally only
be used to challenge actions by prison officials that affect
the manner in which a prisoner's sentence is carried out,
such as computing custody credits or determining parole
eligibility. Terrell v. United States, 564 F.3d 442,
447 (6th Cir. 2009). There are narrow circumstances where a
prisoner may challenge the enhancement of his federal
sentence in a § 2241 petition. To qualify, the
petitioner must (1) have been sentenced under a mandatory
guidelines regime before the Supreme Court's decision in
United States v. Booker, 543 U.S. 220 (2005)
rendered the Sentencing Guidelines merely advisory; (2) point
to a Supreme Court decision - issued after the
petitioner's sentence became final and which is
retroactively applicable to cases on collateral review -
which establishes that as a matter of statutory
interpretation one or more of his prior convictions were not
for offenses that could properly be used to enhance his
federal sentence; and (3) establish that the new decision
could not have been invoked in an initial or successive
§ 2255 motion. Hill v. Masters, 836 F.3d 591,
595, 599-600 (6th Cir. 2016).
does not meet these requirements. First, his sentence was
imposed in 2013, long after Booker was decided and
under an advisory Sentencing Guidelines regime. A challenge
to the enhancement of his sentence therefore fails to satisfy
Hill's threshold requirement for cognizability.
See 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).
Nickolaus does not point to any case of statutory
interpretation from the Supreme Court in support of his
claims. His challenge to the sufficiency of the indictment
(or information, in this case), as well as to the trial
court's guidelines calculations, are claims of ordinary
trial error that could and must have been pursued on direct
appeal or in an initial § 2255 motion. His claim
under Alleyne, in addition to being one that he
could have pursued in an initial § 2255 proceeding, is a
claim under the Sixth Amendment and is therefore not
cognizable in this proceeding. Because Nickolaus could have
pursued these claims through ordinary appellate review and
initial § 2255 proceedings, his remedy under that
provision was not inadequate and ineffective to pursue his
claims. Relief under § 2241 is therefore unavailable.
Hill, 836 F.3d at 594-95; Truss v. Davis,
115 Fed.Appx. 772, 774 (2004). Finally, even if
Nickolaus' claims did have merit, his 210-month sentence
is below the combined 360-month statutory maximum he faced:
240 months under § 2252(a)(2) and 120 months under
§ 2252(a)(4)(B). He therefore fails to show a
miscarriage of justice. For all of the foregoing reasons,
Nickolaus' petition will be denied.
the Court ORDERS as follows:
Court DENIES Nickolaus' petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241 [D.
E. No. 1].
Court DISMISSES and STRIKES