United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
William O. Bertelsman United States District Judge.
Stroud, Jr. is an inmate at the United States Penitentiary
– McCreary in Pine Knot, Kentucky. Proceeding without a
lawyer, Stroud filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. [R. 1]. This matter is now
before the Court on initial screening pursuant to 28 U.S.C.
§ 2243. See Alexander v. Northern Bureau of
Prisons, 419 Fed.Appx. 544, 545 (6th Cir. 2011). For the
reasons set forth below, the Court will deny Stroud’s
2017, the United States filed a criminal information against
Stroud, charging him with possessing a stolen firearm, in
violation of 18 U.S.C. §§ 922(j) and 924(a)(2).
See United States v. Stroud, No. 4:17-cr-010 at R. 1
(N.D.Ga. 2017). Stroud waived indictment and pled guilty
pursuant to a negotiated plea agreement. See Id . at
R. 4. In that agreement, the parties jointly recommended the
statutory maximum sentence of 120 months of incarceration,
and the Government agreed to dismiss the indictment pending
against Stroud in another case. See Id . at R. 45
(explaining the plea agreement). The United States District
Court for the Northern District of Georgia then determined
that Stroud’s advisory sentencing guidelines range was
140 to 175 months in prison, but it recognized that he was
facing a statutory maximum sentence of 120 months. See Id
. at R. 20 at 5. Ultimately, the Northern District of
Georgia sentenced Stroud to that 120-month maximum term of
imprisonment. See Id . at R. 10. Stroud did not file
a direct appeal, and while he subsequently tried to vacate
his sentence pursuant to 28 U.S.C. § 2255, his efforts
were unsuccessful. See Id . at Rs. 34, 42, 43, 47,
has now filed a § 2241 petition with this Court. [R. 1].
Although Stroud’s petition is difficult to follow, he
appears to be arguing that the Northern District of Georgia
miscalculated his advisory sentencing guidelines range.
Specifically, Stroud suggests that the trial court
erroneously determined that his prior Georgia aggravated
assault and burglary convictions constituted crimes of
violence, resulting in improper enhancements under the
sentencing guidelines. [See R. 1-1 at 11-17]. To
support his petition, Stroud cites several cases, including
but not limited to the United States Supreme Court’s
decisions in Descamps v. United States, 133 S.Ct.
2276 (2013), and Mathis v. United States, 136 S.Ct.
2243 (2016), as well as the Eleventh Circuit’s recent
panel opinion in United States v. Moss, 920 F.3d 752
(11th Cir. April 4, 2019). Ultimately, Stroud asks this Court
to “dismiss illegal enhancements and sentence [him] to
correct applicable sentencing under the United States
Sentencing Guidelines of 57-71 Months.” [R. 1 at 8].
petition, however, constitutes an impermissible collateral
attack on his sentence. Although a federal prisoner may
challenge the legality of his 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). After all, 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). Simply
put, Stroud cannot use a § 2241 petition as a way of
challenging his sentence.
true that, in Hill v. Masters, 836 F.3d 591 (6th
Cir. 2016), the United States Court of Appeals for the Sixth
Circuit recognized an exception to this rule which would
allow a prisoner to challenge his sentence in a § 2241
petition. However, the Sixth Circuit expressly limited its
decision 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.
Id. at 599-600.
circumstances do not apply in this case. As an initial
matter, the trial court sentenced Stroud in 2017, well after
the Supreme Court’s decision in Booker made
the sentencing guidelines advisory rather than mandatory. On
this basis alone, Stroud’s petition does not fall
within Hill’s limited exception for bringing a
§ 2241 petition to challenge his federal sentence.
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”).
Thus, Stroud’s attack on his sentence does not even get
off the ground.
Stroud has not identified a subsequent, retroactive change in
statutory interpretation by the Supreme Court that applies to
his case. To be sure, Stroud relies on the Descamps
and Mathis, but the Supreme Court decided those
cases well before Stroud was even charged in his criminal
case, let alone pled guilty and was sentenced. In other
words, those cases were not decided “subsequent”
to Stroud’s case and, thus, nothing prevented him from
raising his Descamps and Marelated
arguments on direct appeal and/or in a § 2255 motion.
And to the extent that Stroud relies on the Eleventh
Circuit’s April 4, 2019 panel decision in
Moss, 920 F.3d at 752, that opinion has been vacated
because the case is set to be reheard en banc. United
States v. Moss, 928 F.3d 1340 (11th Cir. July 15, 2019).
light of the foregoing analysis, it is
ORDERED as follows:
1. Stroud’s petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 [R. 1] is
2. This action is DISMISSED and
STRICKEN from the ...