United States District Court, E.D. Kentucky, Northern Division, Ashland
OPINION AND ORDER
R. WILHOIT, JR. UNITED STATES DISTRICT JUDGE
Timothy Massey has filed a. pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241 to
challenge the manner in which his sentence was calculated
under the federal Sentencing Guidelines. [D. E. No. 1] The
Court conducts an initial review of the petition pursuant to
28 U.S.C. § 2243.
2003, Massey was convicted in Charlotte, North Carolina of
brandishing a firearm during and in relation to a crime of
violence and aiding and abetting the same in violation of 18
U.S.C. §§ 924(c), 2. United States v.
Massey, No. 3:03-CR-19 (W.D. N.C. 2003) (Massey
I). See Massey v. United States, No.
3:16-CV-244-MOC, 2017 WL 4706910, at *2 (W.D. N.C. Oct. 19,
2017). In 2004 Massey pleaded guilty in Greensboro, North
Carolina to robbing a pawn shop in violation of the Hobbs
Act, 18 U.S.C. §1951, and was sentenced to 97 months
imprisonment to be followed by five years of supervised
release. United States v. Massey, No.
1:03-CR-146-NCT-1 (M.D. N.C. 2003) (Massey II).
another prosecution in Charlotte, Massey pleaded guilty to
carjacking in violation of 18 U.S.C. § 2119, use of a
firearm during the commission of a crime of violence in
violation of 18 U.S.C. § 924(c), and receiving stolen
firearms in violation of 18 U.S.C. § 922(j). Massey was
sentenced to a cumulative term of 96 months imprisonment for
these three crimes to be followed by five years of supervised
release. This sentence was ordered to run concurrently with
the sentence imposed in Massey II. United States v.
Massey, No. 3:03-CR-29-MOC-l (W.D. N.C. 2003)
2011, Massey violated the terms of his supervised release in
Massey HI and was sentenced to five months
imprisonment. United States v. Massey, No.
3:11-CR-124-MOC-DSC-1 (W.D. N.C. 2011).
August 2013, Massey was indicted in Charlotte, North Carolina
for being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g), possession of marijuana with intent
to distribute in violation of 21 U.S.C. § 841(a)(1), and
using and carrying a firearm during and in relation to a drug
trafficking crime in violation of 18 U.S.C. §
924(c)(1)(A). As part of a plea agreement, Massey and the
government expressly agreed that his offense level for the
felon-in-possession offense was 30: a base offense level of
24, U.S.S.G. § 2K2.1(a)(2) (2013); a four level increase
because the firearm was used or possessed in connection with
another felony offense, § 2K2.1(b)(6)(B); and a two
level increase for possession of a firearm, § 2D 1.1
(b)(1). The parties agreed to jointly recommend a sentence at
the top end of the guidelines range. Massey also waived his
right to contest his conviction or sentence, whether by
direct appeal or collateral attack, save upon grounds of
prosecutorial misconduct or ineffective assistance of
light of these stipulations, the government agreed to dismiss
the § 924(c) count in exchange for Massey's guilty
plea to the § 922(g) and § 841(a) counts. By
obtaining the dismissal of the § 924(c) count, Massey
procured a reduction in his sentence from an aggregate range
of 360 months to life imprisonment to 110 to 157 months
imprisonment. Following a sentencing hearing in August 2014,
the trial court sentenced Massey to 120 months imprisonment
for the felon-in-possession offense and a concurrent 17-month
term for the drug trafficking offense. During the same
hearing, the trial court imposed a consecutive 24-month term
for violating the terms of his supervised release in
Massey III. United States v. Massey, No. 3:
13-CR-224-MOC-1 (W.D. N.C. 2013) (Massey IV).
direct appeal Massey challenged the validity of the waiver of
his appeal rights and the career offender enhancement, but in
2015 the Fourth Circuit dismissed the appeal in light of the
plea waiver. Massey, proceeding both pro se and
subsequently with the assistance of appointed counsel, again
challenged the validity of his plea waiver and the career
offender enhancement in his initial motion under 28 U.S.C.
§ 2255. The trial court denied that motion in October
2017, concluding among other things that his claims were
barred by the plea waiver and substantively without merit.
Massey, 2017 WL 4706910, at *6-8.
current petition, Massey contends that in light of United
States v. Camp, 903 F.3d 594 (6th Cir. 2018) and
United States v. O'Connor, 874 F.3d 1147 (10th
Cir. 2017), his prior conviction for Hobbs Act robbery no
longer constitutes a "crime of violence" under the
Sentencing Guidelines, and thus he no longer qualifies as a
career offender under the Guidelines to warrant an
enhancement of his sentence. [D. E.No. 1-1 at 1, 7-10]
Massey were sentenced today in a court sitting within the
Sixth Circuit, his prior conviction for Hobbs Act robbery
would not qualify as a "crime of violence" under
the Sentencing Guidelines. Camp, 903 F.3d at 600-04.
But several obstacles stand in the way of Massey obtaining
the relief he seeks.
argues that only two prior convictions, Hobbs Act robbery in
Massey II and carjacking in Massey III,
supported the trial court's career offender
determination. [D. E. No. 1-1 at 2] But the Presentence
Investigation Report ("PSR") concluded that a third
conviction, for brandishing a firearm during the commission
of a crime of violence in Massey I, also qualified
as a crime of violence. Massey, 2017 WL 4706910, at
Thus, even if Massey's arguments are correct, they do not
undermine the PSR's conclusion that he had two prior
convictions for a crime of violence, and U.S.S.G. §
4B1.1(a) does not require more. Massey's petition
therefore fails to muster a substantive basis for relief.
plea agreement, Massey agreed both that he qualified as a
career offender under the Sentencing Guidelines and to the
resulting calculation of his offense level. He further agreed
to waive his right to appeal or collaterally attack his
convictions and sentence. 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,
Massey bargained for and received a substantial reduction in
the sentence he faced by agreeing to the terms of a plea
agreement which included a waiver of his right to challenge
that sentence by any means, whether by direct appeal or
collateral attack. That agreement is enforceable to bar his
challenge in this habeas proceeding.
claim 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 guidelines
sentence was imposed in 2014, 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). Massey contends that
Hill's reference to the mandatory Guidelines in
effect before Booker was not instrumental to its
holding, and that post-Booker Guidelines
determination are equally subject to attack under §
2241. See Neuman v. United States, No. 17-6100, 2018
WL 4520483, at *2 n.l (6th Cir. May 21, 2018) (noting but not
reaching the question). But this Court has evaluated that
argument at ...