United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
L. Bunning United States District Judge
Jerry Volz is an inmate at the Federal Correctional
Institution in Manchester, Kentucky. Proceeding without a
lawyer, Volz filed a Petition for a Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241. (Doc. # 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 herein, Volz's Petition is denied.
2013, Volz pled guilty to being a felon in possession of a
firearm and possession with the intent to distribute cocaine.
See generally United States v. Volz, No. 3:12-cr-140
(M.D. Tenn. 2013). According to Volz, the district court
determined that he was a career offender pursuant to section
4B1.1 of the United States Sentencing Guidelines (U.S.S.G.)
because he had at least two prior felony convictions for
either a crime of violence or controlled substance offense.
Thus, Volz's sentencing guidelines range was enhanced,
and the district court ultimately sentenced him to 151 months
in prison. See Id. at Doc. # 30. Volz did not appeal
his sentence to the United States Court of Appeals for the
Sixth Circuit, and he did not file a motion to vacate his
sentence pursuant to 28 U.S.C. § 2255.
now pursues relief via § 2241. While Volz's petition
is somewhat difficult to decipher, he is clearly trying to
challenge the validity of his 151-month sentence. Indeed,
Volz argues 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 no longer qualifies as a
career offender and, thus, his sentence should be vacated.
(Doc. # 1-1).
petition, however, constitutes an impermissible collateral
attack on his sentence. Although 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 habeas petition under § 2241). 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, Volz cannot use his § 2241
petition as a way of challenging his sentence.
sure, there is a limited exception under which federal
prisoners have been permitted to challenge the validity of
their sentences in a § 2241 petition. However, the Sixth
Circuit has explained that a prisoner can only proceed in
this manner if he can show: “(1) a case of statutory
interpretation, (2) that is retroactive and could not have
been invoked in the initial § 2255 motion, and (3) that
the misapplied sentence presents an error sufficiently grave
to be deemed a miscarriage of justice or a fundamental
defect.” Hill v. Masters, 836 F.3d 591, 595
(6th Cir. 2016). The Sixth Circuit also expressly limited its
decision to “prisoners who were sentenced under the
mandatory guidelines regime pre-United States v.
Booker, 543 U.S. 220 (2005).” Id. at
599-600. Finally, the Sixth Circuit has made it clear that
the retroactive case of statutory interpretation on which the
petitioner relies must be a U.S. Supreme Court decision, not
a federal circuit court case. See Id. at 600
(limiting its decision to cases involving “a
subsequent, retroactive change in statutory interpretation by
the Supreme Court”); see also Hueso v.
Barnhart, No. 18-6299, 2020 WL 104612, at *1 (6th Cir.
Jan. 9, 2020) (holding that a prisoner may not seek habeas
relief under § 2241 based solely on a federal circuit
court case; rather, the retroactive case of statutory
interpretation on which the prisoner relies must come from
the Supreme Court).
does not meet the foregoing requirements. As an initial
matter, the trial court sentenced Volz in 2013, well after
the Supreme Court's decision in Booker made the
sentencing guidelines advisory rather than mandatory. On this
basis alone, Volz's claim does not fall within
Hill's limited exception for bringing a §
2241 petition to challenge his underlying sentence. See
Loza-Gracia v. Streeval, No. 18-5923, 2019 WL 4199908,
at *2 (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, 2018 U.S. App. LEXIS 25678, at *3 (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, 2018 U.S. App. LEXIS 8901, at *4-5
(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
has also not identified a retroactive change in statutory
interpretation by the Supreme Court that is applicable to his
case, as required. See Hill, 836 F.3d at 600;
Hueso, 2020 WL 104612, at *1. Instead, Volz relies
on the Sixth Circuit's recent en banc decision in
Havis which is, of course, not a Supreme Court
decision. Thus, Volz's claim is simply not cognizable in
a § 2241 petition.
reasons set forth above, Volz's attack on his §
4B1.1 enhancement does not even get off the
ground. Accordingly, it is
Volz's Petition for a Writ of Habeas Corpus pursuant to
28 U.S.C. § 2241 (Doc. # 1) is DENIED;
This action is DISMISSED and
STRICKEN from the Court's docket; and
corresponding Judgment will be entered this date.