United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION AND ORDER
K. CALDWELL, UNITED STATES DISTRICT JUDGE.
Fisher is an inmate at the United States
Penitentiary-McCreary in Pine Knot, Kentucky. Proceeding
without an attorney, Fisher seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. [R. 1.] The matter is now
before the Court on initial screening. See 28 U.S.C.
§ 2243; Alexander v. Northern Bureau of
Prisons, 419 Fed.Appx. 544, 545 (6th Cir. 2011). For the
reasons that follow, the Court will deny Fisher's
2013, Fisher pled guilty to possessing marijuana with the
intent to distribute in violation of 21 U.S.C. § 841 and
to being a felon in possession of a firearm in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2). See
United States v. Fisher, Case No. 1:12-cr-190-RFF (W.D.
Mich. 2012), at R. 18. During sentencing, the trial judge
noted that Fisher was subject to the United States Sentencing
Guidelines career offender enhancement but that it ultimately
had no impact on his offense level because of his extensive
criminal history. Id. at R. 43. Fisher was sentenced
to 160 months imprisonment. Id. at R. 39. He went on
to appeal his sentence, but the Sixth Circuit Court of
Appeals affirmed. United States v. Fisher, 572
Fed.Appx. 323 (6th Cir. 2014). Fisher also moved to vacate
his sentence in a 28 U.S.C. § 2255 habeas petition, but
his efforts were ultimately unsuccessful. See Fisher v.
United States, Case No. 1:15-cv-851-RJJ (W.D. Mich.
has now filed a § 2241 petition with this Court. [R. 1.]
Fisher's primary argument is that, in light of the Sixth
Circuit's recent en banc decision in United States v.
Havis, 927 F.3d 382 (6th Cir. June 19, 2019), he is no
longer a career offender for purposes of his United States
Sentencing Guideline enhancement and he should thus be
resentenced. [R. 1-1.] Fisher's petition, however,
constitutes an impermissible collateral attack on his
conviction and sentence.
a federal prisoner may challenge the legality of his
conviction and sentence on direct appeal and through a timely
§ 2255 motion, he generally may not do so in a §
2241 petition. See United States v. Peterman, 249
F.3d 458, 461 (6th Cir. 2001) (explaining the distinction
between a § 2255 motion and a § 2241 habeas
petition). A § 2241 petition is usually only a vehicle
for challenges to actions taken by prison officials that
affect the way the prisoner's sentence is being carried
out, such as computing sentence credits or determining parole
eligibility. See Terrell v. United States, 564 F.3d
442, 447 (6th Cir. 2009). While there are exceptions under
which federal prisoners have been permitted to challenge the
validity of their sentences in a § 2241 petition, the
exceptions are limited. The Sixth Circuit has explained that
a prisoner can only proceed in this manner if he can
establish his actual innocence, see Wooten v.
Cauley, 677 F.3d 303, 307-08 (6th Cir. 2012), or show
that his sentence was improperly enhanced under the mandatory
Guidelines regime, see Hill v. Masters, 836 F.3d
591, 599-600 (6th Cir. 2012).
Fisher has not met the requirements set forth in either
Wooten or Hill. Fisher does not contend he
is actually innocent of either of his two offenses of
conviction for purposes of Wooten. See 677
F.3d 303. And he fails to satisfy the limited terms of
Hill v. Masters. The basis of Fisher's §
2241 petition is that his career offender enhancement is no
longer valid in light of the Sixth Circuit's en banc
Havis ruling. More specifically, Fisher claims that
one of the predicate offenses used to apply his career
offender enhancement no longer qualifies because of
Havis and, thus, the enhancement itself no longer
applies. [See R. 1; R. 1-1.] Fisher believes he can
challenge this enhancement in the present § 2241
petition because of Hill, but the Sixth Circuit
limited Hill to the following narrow circumstances:
(1) prisoners who were sentenced under the mandatory
guidelines regime pre-United States v. Booker, 543
U.S. 220 . . . (2005), (2) who were foreclosed from filing a
successive petition under § 2255, and (3) when a
subsequent, retroactive change in statutory interpretation by
the Supreme Court reveals that a previous conviction is not a
predicate offense for a career-offender enhancement.
Hill, 836 F.3d at 599-600. These circumstances do
not apply in Fisher's case.
the trial court sentenced Fisher in 2013, well after the
Supreme Court's decision in Booker made the
sentencing guidelines advisory rather than mandatory. See
Fisher, Case No. 1:12-cr-190-RFF (W.D. Mich. 2012). On
this basis alone, Fisher's claim does not fall within
Hill's limited framework. See Loza-Gracia v.
Streeval, No. 18-5923 (6th Cir. March 12, 2019)
(“Loza-Gracia cannot proceed under Hill
because he was sentenced in 2011, long after the Supreme
Court's January 2005 Booker decision made the
guidelines advisory rather than mandatory.”);
Contreras v. Ormond, No. 18-5020 (6th Cir. Sept. 10,
2018) (“[The petitioner's] case does not fall
within the narrow exception recognized by Hill
because he was sentenced post Booker in 2009, under
the advisory sentencing guidelines.”); Arroyo v.
Ormond, No. 17-5837 (6th Cir. April 6, 2018) (holding
that since the petitioner was sentenced after
Booker, his “claim does not fall within
Hill 's limited exception for bringing a §
2241 habeas petition to challenge a federal sentence”).
has also failed to identify a subsequent, retroactive change
in statutory interpretation by the Supreme Court that reveals
that a previous conviction is not a predicate offense for
purposes of his career offender enhancement. Instead, Fisher
relies on Hill v. Masters itself, the Sixth
Circuit's Havis decision, and the Fourth Circuit
case United States v. Wheeler, 886 F.3d 415 (4th
Cir. 2018). These are not Supreme Court opinions that
articulate retroactive changes in relevant statutory
interpretation. Fisher has thus failed to meet Hill
's third requirement, and he may not attack his
sentence enhancement in this § 2241 petition.
the Court hereby ORDERS as follows:
1. Fisher's petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241 [R. 1] is DENIED;
2. This action is DISMISSED and
STRICKEN from the Court's active ...