United States District Court, E.D. Kentucky, Northern Division, Ashland
BERNARD R. JIVIDEN, Petitioner,
J.C. STREEVAL, Respondent.
MEMORANDUM OPINION AND ORDER
R. WILHOIT. JR. UNITED STATES DISTRICT JUDGE.
Bernard R. Jividen is a federal inmate currently confined at
the Federal Correctional Institution
("FCI")-Ashland, located in Ashland, Kentucky.
Proceeding without a lawyer, Jividen has filed a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2241,
seeking relief from his conviction and sentence and has paid
the $5.00 filing fee. [D.E. No. 1, 5]
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
October 2013, pursuant to a plea agreement with the United
States, Jividen pled guilty to one count of receipt of child
pornography in violation of 18 U.S.C. § 2252(a)(2)
(Count I). As part of the plea agreement, the United States
agreed to dismiss Count II of the indictment, which charged
Jividen with possession of child pornography in violation of
18 U.S.C. § 2252(a)(4)(B) (Count II). In the pies.
agreement, the parties agreed to jointly recommend sentencing
guideline calculations, including that Jividen's base
offense level of 22 should be increased by the following: (1)
pursuant to U.S.S.G. § 2G2.2(b)(2), an increase by 2
levels because the material involved children under 12 years
of age; (2) pursuant to U.S.S.G. § 2G2.2(b)(4), an
increase by 4 levels because the material portrayed sadistic
conduct or depictions of violence; and (3) pursuant to
U.S.S.G. § 2G2.2(b)(7)(D), an increase by 5 levels
because the offense involved over 600 images.
also expressly waived the right to appeal or collaterally
attack his guilty plea, conviction, and sentence (with the
exception of a claim of ineffective assistance of counsel),
so long as his sentence is not above the recommended
guideline range. In addition, notwithstanding the joint
recommendation for guideline calculations, Jividen reserved
the right to argue for a variance downward from the guideline
range and a departure downward from any guideline range not
contemplated by the plea agreement. For its part, the United
States agreed to recommend the lowest within-guideline term
February 20, 2014, Jividen was sentenced to a term of
imprisonment of 133 months on Count I of the indictment, to
be followed by a life term of supervised released, with the
condition that, after 10 years of completion of supervision,
with no violations, Jividen may be terminated early from
supervised release. As it has previously agreed, the United
States moved to dismiss Count II of the indictment Although
Jividen did not appeal his conviction or sentence, he did
file a motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255 in light of the United
States Supreme Court's decision in Johnson v. United
States, ____U.S. ____, 135 S.Ct. (2551 (2015).
Jividen's § 2255 petition was denied by the District
Court and, although Jividen appealed to the United States
Court of Appeals for the Sixth Circuit, his appeal was
dismissed for want of prosecution. United States v.
Jividen, No. 2: 13-cr-045-DLB-CJS (E.D. Ky. 2013).
§ 2241 petition filed in this Court, Jividen argues that
United States v. Morrissey, 895 F.3d 541 (8th Cir.
2018), narrowed the scope of the conduct criminalized by 18
U.S.C. § 2252, such that § 2252 does not permit a
dual conviction for receipt and possession of child
pornography arising from the same facts. [D.E, No. 1; D.E.
No. 1-1] Jividen further argues 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 a violation of
§ 2252(a)(4) (possession of child pornography) from 10
to 20 years. Jividen also contends that the failure to submit
the question of the age of the minor depicted in the images
to a jury was a violation of his Sixth Amendment rights under
Alleyne v. United States, 570 U.S. 99 (2013).
also relies upon United States v. Raymond, 139 S.Ct.
2369 (2019 I, and argues that the imposition of his term of
supervised release pursuant to 18 U.S.C. § 3585(k) is
invalid because § 3585(k) is unconstitutional. Finally,
Jividen argues that the District Court improperly increased
his base offense level under the U.S.S.G. §§
2G2.2(b)(2), (4), and (7)(D), citing to several court
decisions issued long before his sentence was imposed.
According to Jividen, the District Courts
"misapplication" of the various sentencing
enhancements provided by the Guidelines, is "an error
sufficiently grave to be deemed a miscarriage of justice of a
fundamental defect," such that he may proceed in his
§ 2241 petition pursuant to Hill v. Masters,
836 F.3d 591, 595 (6th Cir. 2016).
Jividen's petition must be denied for several reasons.
First, contrary to his repeated statements in his petition,
Jividen was not convicted of both receipt and
possession of child pornography, as Count II of the
indictment charging him with possession of child pornography
was dismissed by the United States. Thus: his
argument that he was improperly convicted of both receipt and
possession of child pornography based on the same underlying
facts is unfounded. Moreover because he was convicted of
receipt of child pornography in violation of 18 U.S.C
2252(a)(2), the basis for his statutory maximum penalty of 20
years was the statutory penalty provided by 18 U.S.C. §
2252(b)(1), not the enhanced statutory maximum penalty of 20
years provided by § 2252(b)(2) for a violation of §
2252(a)(4) involving a prepubescent minor or a minor who had
not attained 12 years of age.For these reasons, neither
Morrissey nor Alleyne have any bearing upon
Jividen's case, and his claims based upon them are
substantively without merit.
addition, Jividen's petition is 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,
Jividen 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. Jividen 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).
in his § 2241 petition, Jividen challenges the increases
to his base offense level made as part of calculating his
recommended Sentencing Guideline range. Specifically, he
argues that the following upward adjustments to his base
offense level were improper: (1) pursuant to U.S.S.G. §
2G2.2(b)(2) because the material involved children under 12
years of age; (2) pursuant to U.S.S.G. § 2G2.2(b)(4)
because the material portrayed sadistic conduct or depictions
of violence; and (3) pursuant to U.S.S.G. §
2G2.2(b)(7)(D) because the offense involved over 600 images.
However, as part of his plea agreement, Jividen specifically
agreed to jointly recommend sentencing guideline
calculations, including these specific upward adjustments to
his base offense level. United States v. Jividen,
No. 2: 13-cr-045-DLB-CJS (E.D. Ky. 2013) at D.E. No. 16, Plea
Agreement, at ¶ 5. Having received the benefit of the
plea agreement, Jividen provides no reason why he should not
be held to his bargain with the United States.
putting his plea agreement aside, Jividen is still precluded
from relief because he may not assert his claims 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 ...