Loza-Gracia v. Streeval

Filing 5

MEMORANDUM OPINION & ORDER; 1) Loza-Garcia's petition for writ of habeas corpus is DENIED 2) action is DISMISSED AND STRICKEN from Court's docket 3) a corresponding judgment will be entered this date. Signed by Judge Henry R. Wilhoit, Jr on 8/13/18.(SMT)cc: COR, Loza-Garcia via USMail

Ea.stern District of Kentucky

FILED

AUG 13 2018
UNITED ST ATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at ASHLAND

ALBERTO LOZA-GRACIA,

AT ASHLAND
ROBERT R. CARR
CLERK U.S. DISTRICT COURT

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Petitioner,
V.

Civil No. 0: 18-060-HRW

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JASON C. STREEV AL, Warden ,
Respondent.

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MEMORANDUM OPINION
AND ORDER

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Alberto Loza-Gracia is a prisoner confined at the at the Federal Correctional
Institution ("FCI")-Ashland Camp in Ashland, Kentucky. Proceeding without a
lawyer, Loza-Gracia has filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241. [D. E. No. l]. For the reasons set forth below, the Court will deny
Loza-Gracia's petition.
I.

In August 2009, Loza-Gracia was charged by a federal grand jury sitting for
the United States District Comi for the Eastern District of Texas with one count of
conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. §
846 (Count One).

United States v. Loza-Gracia, No. 4:09-cr-152-MAC-CAN-1

(E.D. Tex. 2009). In April 2010, pursuant to a plea agreement with the United States,

Loza-Gracia pled guilty to Count One. [Id. at D .E. No. 58, 60] Loza-Gracia's plea
agreement contained the following waiver provision:
Except as otherwise provided herein, Defendant expressly waives the
right to appeal the conviction in this case on all grounds. Defendant
further agrees not to contest the sentence in any post-conviction
proceeding, including, but not limited to a proceeding under 28 U.S.C.
§ 2255. Defendant, however, reserves the right to appeal the following:
(a) any punishment imposed in excess of the statutory maximum and
(b) a claim of ineffective assistance of counsel that affects the validity
of the waiver itself.

Loza-Gracia v. United States, No. 4: 12-cv-699-MAC-DDB (E.D. Tex. 2012) at D.E.
No. 30. 1
In February 2011 , Loza-Gracia was sentenced to a term of imprisonment of
188 months.

United States v. Loza-Gracia, No. 4:09-cr-152-MAC-CAN-l (E.D.

Tex. 2009) at D.E. No. 97. His conviction and sentence were affirmed on appeal by
the United States Court of Appeals for the Fifth Circuit. United States v. Loza-

Gracia, 670 F.3d 639 (5th Cir. 2012).
Although Loza-Gracia sought relief from his sentence via a motion to vacate,
set aside, or correct sentence pursuant to 28 U.S.C. § 2255, this motion was denied

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Although Loza-Gracia's plea agreement is sealed in his criminal case, United States v. LozaGracia, No. 4:09-cr-152-MAC-CAN-1 (E.D . Tex . 2009) at D.E. No. 60, the relevant provisions
are reproduced in the Report and Recommendation prepared by the Magistrate Judge
recommending the denial of hi s motion to vacate , set aside, or correct sentence pursuant to 28
U.S.C. § 2255. Loza-Gracia v. United States, No. 4: l 2-cv-699-MAC-DDB (E.D. Tex. 2012) at
D.E. No. 30.
The Court "may take judicial notice of proceedings in other courts of
record." Granader v. Public Bank, 417 F.2d 75, 82-83 (6th Cir. 1969); see also Fed. R. Evid.
20l(b)(2). Records on government websites are self-authenticating. Fed. R . Evid. 902(5).

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based on the waiver provision of his plea agreement. Loza-Gracia v. United States,
No. 4: 12-cv-699-MAC-DDB (E.D. Tex.2012) at D.E. No. 30; United States v. Loza-

Gracia, No. 4:09-cr-152-MAC-CAN-l (E.D. Tex. 2009) at D.E. No. 146 (adopting
the Repmi and Recommendation prepared by the Magistrate Judge). In the Report
and Recommendation adopted by the District Court, the Magistrate Judge
specifically found that: 1) Loza-Gracia's plea was voluntary and knowing, thus the
waiver in his plea agreement must be enforced; and 2) neither of the exceptions listed
in the waiver applied because his sentence of 188 months does not exceed the
statutory maximum and, to the extent that he raised ineffective assistance of counsel
claims in his § 2255 petition, neither of those claims affected the validity of the
waiver itself. Loza-Gracia v. United States, No. 4: 12-cv-699-MAC-DDB (E .D. Tex.
2012) at D.E. No. 30, p. 12.
Although Loza-Gracia filed a motion for leave to file a successive § 2255
petition in light of the United States Supreme Court' s decision in Johnson v. United

States, 135 S.Ct. 2551 (2015), this motion was denied by the Court of Appeals for
the Fifth Circuit. In re: Alberto Loza-Gracia, No. 16-40720 (5th Cir. Jul 21, 2016).
Loza-Gracia has now filed a § 2241 petition with this Comi, arguing that, in
light of the Supreme Court's decisions in Descamps v. United States, 133 S.Ct. 2276
(2013) and Mathis v. United States,_ U.S._, 136 S. Ct. 2243 (2016), as well as
the United States Court of Appeals for the Fifth Circuit's decisions in United States

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v. Tanksley, 848 F.3d 347 (5th Cir. 2017) and United States v. Hill, 716 F. App'x
327, 331 (5th Cir. 2018), his prior Texas conviction for delivery of a controlled
substance is no longer a viable predicate offense for purposes of his classification as
a career offender pursuant to § 4B 1.1 of the United States Sentencing Guidelines.
Loza-Gracia invokes the "savings clause" provision of 28 U.S.C. § 2255(e) to
contend that he may assert this claim in a§ 2241 petition.
II.

The Court conducts an initial review of habeas corpus petitions. 28 U.S .C.

§ 2243; Alexander v. Northern Bureau of Prisons, 419 F. App'x 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 l(b)). The Court evaluates Loza-Gracia's petition under
a more lenient standard because he is not represented by an attorney. Erickson v.

Pardus, 551 U.S. 89, 94 (2007). At this stage of the proceedings, the Court accepts
the petitioner's factual allegations as true and liberally construes all legal claims in
his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
Loza-Gracia's petition must be denied because he knowingly and voluntarily
waived his right to contest his sentence in a post-conviction proceeding in his plea
agreement. Such waivers are enforceable and apply to proceedings under § 2241,

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including this one. Slusser v. United States , 895 F.3d 437, 439 (6th Cir. 2018) ("It
is well-settled that a knowing and voluntary waiver of a collateral attack is
enforceable.")(citation omitted); Mos er v. Quintana, No. CV 5: 17-386-DCR, 2017
WL 5194507, at *2 (E.D. Ky. Nov. 9, 2017), ajf'd, No. 17-6421 (6th Cir. June 21,
2018); Rivera v. Warden, FCI, Elkton , 27 F. App ' x 511,515 (6th Cir. 2001); Solis-

Caceres v. Sepanek, No. 13-cv-21-HRW, 2013 WL 4017119, at *3 (E.D. Ky. Aug.
6, 2013) (collecting cases).
As with his prior attempt to challenge his sentence in his first§ 2255 petition,
neither of the exceptions to the waiver provision apply, as his sentence did nor
exceed the statutory maximum , nor does he raise a claim of ineffective assistance of
counsel implicating the validity of the waiver itself. "The subsequent developments
in this area of the law 'do[] not suddenly make [his] plea involuntary or unknowing
or otherwise undo its binding nature." Slusser, 895 F.3d at 440 (citing United States

v. Bradley, 400 F.3d 459, 463 (6th Cir. 2005)). Because Loza-Gracia waived the
right to bring this § 2241 petition in his plea agreement, his petition must be denied.
Even absent Loza-Gracia's waiver, his § 2241 petition would still be denied
as an impermissible collateral attack on his sentence. 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 federal
prisoner who wishes to challenge the legality of his conviction or sentence must file

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a motion under§ 2255. Id. ( explaining the distinction between a§ 2255 motion and
a§ 2241 petition). A habeas corpus petition pursuant to 28 U.S.C. § 2241 may not
be used for this purpose because it does not function as an additional or alternative
remedy to the one available under§ 2255. Hernandez v. Lamanna, 16 F. App'x 317,
320 (6th Cir. 2001).
The "savings clause" of28 U.S.C. § 2255(e) creates an extraordinarily narrow
exception to this prohibition if the remedy afforded by § 2255 is "inadequate or
ineffective" to test the legality of the prisoner's detention. Truss v. Davis, 115 F.
App'x 772, 773-74 (6th Cir. 2004). A motion under § 2255 is not "inadequate or
ineffective" simply because the prisoner's time to file a § 2255 motion has passed;
he did not file a § 2255 motion; or he did file such a motion and was denied relief.

Copeland v. Hemingway, 36 F. App'x 793 , 795 (6th Cir. 2002); Taylor v. Gilkey,
314 F.3d 832, 835 (7th Cir. 2002) (holding that § 2241 is available "only when a
structural problem in § 2255 forecloses even one round of effective collateral review
... "). In other words, prisoners cannot use a habeas petition under § 2241 as yet
another "bite at the apple. " Hernandez, 16 F. App'x at 360.
The decidedly narrow scope of relief under § 2241 applies with particular
force to challenges not to convictions, but to the sentence imposed. Peterman, 249
F .3d at 462; Hayes v. Holland, 4 73 F. App 'x 501, 502 ( 6th Cir. 2012) ("The savings
clause of section 2255( e) does not apply to sentencing claims."). In Hill v. Masters,

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836 F. 3d 591 (6th Cir. 2016), the Sixth Circuit ai1iculated a very narrow exception
to this general rule, permitting a challenge to a sentence to be asserted in a § 2241
petition, but only where (1) the petitioner' s sentence was imposed when the
Sentencing Guidelines were mandatory before the Supreme Court's decision in

United States v. Booker, 543 U.S. 220 (2005); (2) the petitioner was foreclosed from
asserting the claim in a successive petition under§ 2255; and (3) after the petitioner's
sentence became final, the Supreme Court issued a retroactively applicable decision
establishing that - as a matter of statutory interpretation - a prior conviction used to
enhance his or her federal sentence no longer qualified as a valid predicate offense.

Hill, 836 F. 3d at 599-600.
Here, Loza-Gracia does not satisfy the first criteria in Hill because he was
sentenced in 2011, long after Booker was decided. Thus, even absent the waiver of
his right to contest his sentence in a post-conviction proceeding in his plea
agreement, he is not entitled to relief.
Accordingly, it is ORDERED that:
1.

Loza-Gracia's petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2241 [D. E. No. l] is DENIED.
2.

This action is DISMISSED and STRICKEN from the Court's docket.

3.

A corresponding judgment will be entered this date.
~(J._,/

This

J
1r day of August, 2018 .

Signed By:

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Henry R. WIihoit Jr.
United States District Judge