Cathey v. Butler

Filing 4

MEMORANDUM OPINION & ORDER : 1. Catheys petition for a writ of habeas corpus [R. 1] is DENIED;2. This action is DISMISSED and STRICKEN from the Courts docket; and3. The Court will enter an appropriate judgment. Signed by Judge Gregory F. VanTatenhove on 10/12/17.(SYD)cc: mailed to pro se filer

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
DANNY LEE CATHEY,
Petitioner,
v.
SANDRA BUTLER, Warden,
Respondent.

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Civil No. 6: 16-292-GFVT

MEMORANDUM OPINION
&
ORDER

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Federal inmate Danny Lee Cathey has filed a habeas corpus petition pursuant to 28
U.S.C. § 2241. [R. 1.] 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).
I
In February 2009, a federal grand jury indicted Cathey for possession with intent to
distribute more than fifty grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B)(viii), and for being a felon in possession of a firearm or ammunition in violation of 18
U.S.C. § 922(g)(1). The government later gave notice pursuant to 21 U.S.C. § 851 that Cathey
had previously been convicted of three prior felony drug offenses, any one of which would
increase his minimum sentence for the drug trafficking charge to ten years to life imprisonment
pursuant to 21 U.S.C. § 841(b)(1)(B).
In November 2009, a jury found Cathey guilty of the narcotics charge but not guilty on
the weapons offense. On March 19, 2010, the trial court concluded that Cathey qualified as a
career offender pursuant to U.S.S.G. § 4B1.1(a) because he had committed two or more prior
felony drug offenses, but noted that his criminal history category would have been 37 even

without that enhancement. Although Cathey faced a term of 360 months to life imprisonment,
the trial court imposed a 180-month term of incarceration to run consecutively to a pre-existing
five-year state prison sentence for a distinct offense. United States v. Cathey, No. 5: 09-CR-02TBR (W.D. Ky. 2009).
II
In his petition, Cathey argues that following the Supreme Court’s decision in Mathis v.
United States, __ U.S. __, 136 S. Ct. 2243 (2016), his prior state drug trafficking offense1 no
longer constitutes a “controlled substance offense” within the meaning of U.S.S.G. § 4B1.2(b),
and therefore asks to be resentenced without the career offender enhancement. [R. 1-1.] As
noted above however, application of the career offender enhancement did not increase Cathey’s
criminal history category, and thus did not enhance the sentence he faced. In addition, the trial
court imposed a sentence only half as long as that called for under the guidelines based on drug
quantity alone, and thus it is far from clear that resentencing would assist Cathey.
Setting aside those practical difficulties, Cathey’s habeas petition must be denied in light
of numerous and insuperable legal shortcomings. First, Cathey may not use a Section 2241
petition to assert Mathis as a ground to challenge the enhancement of his sentence. A
Section 2241 petition may only be used as a vehicle for challenges to actions taken by prison
officials that affect the manner in which the prisoner’s sentence is being carried out, such as
computing sentence credits or determining parole eligibility. Terrell v. United States, 564 F.3d
442, 447 (6th Cir. 2009). A federal prisoner who instead wishes to challenge the legality of his
1

Cathey does not identify which prior conviction forms the basis for his challenge. A review of
Kentucky’s online court docket database reveals more than two dozen criminal cases filed
against him for crimes ranging from reckless driving, assault, terroristic threatening, drug
possession, contempt of court, carrying a concealed deadly weapon, flagrant nonsupport, and
drug trafficking in Fulton, Graves, and McCracken counties. The Court assumes the conviction
at issue is the one referenced in the government’s § 851 notice.

conviction or sentence must use a motion under Section 2255. United States v. Peterman, 249
F.3d 458, 461 (6th Cir. 2001) (explaining the distinction between permissible uses for a § 2255
motion and a § 2241 petition). The prisoner may not resort to Section 2241 to seek relief even
when Section 2255 is not presently “available” to him, whether because he filed a timely motion
and was denied relief; he did not file a timely § 2255 motion; or he filed an untimely motion.
Copeland v. Hemingway, 36 F. App’x 793, 795 (6th Cir. 2002). In other words, prisoners cannot
use a habeas petition under § 2241 as yet another “bite at the apple.” Hernandez v. Lamanna, 16
F. App’x 317, 360 (6th Cir. 2001).
The decidedly narrow scope of relief under Section 2241 applies with particular force to
challenges not to convictions, but to the sentence imposed. Peterman, 249 F.3d at 462; Hayes v.
Holland, 473 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, 836 F. 3d 591 (6th Cir. 2016), the Sixth Circuit
articulated a very narrow exception to this general rule, permitting a challenge to a sentence to be
asserted in a Section 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 federal sentence no longer
qualified as a valid predicate offense. Hill, 836 F. 3d at 599-600.
Cathey’s claim fails to satisfy the threshold requirement of Hill because he was sentenced
in 2010, long after Booker rendered the Sentencing Guidelines advisory rather than mandatory.
In addition, the Supreme Court in Mathis itself made abundantly clear that its holding was
required by decades-old precedent and hence did not announce any new rule, Mathis, 136 S. Ct.

at 2257, and the Sixth Circuit has expressly so held. In re: Conzelmann, 2017 WL 4159184 (6th
Cir. 2017). Because a claim based upon a recently-issued Supreme Court decision interpreting a
statute is only cognizable in a § 2241 petition if that holding is retroactively applicable to cases
on collateral review, Wooten v. Cauley, 677 F.3d 303, 307-08 (6th Cir. 2012), Mathis does not
provide Cathey with a basis for relief under § 2241. Cathey’s claim therefore falls outside the
decidedly narrow exception set forth in Hill, and his sentencing claim does not come within the
narrow scope of Section 2255(e)’s savings clause. Peterman, 249 F.3d at462.
Finally, Cathey’s claim under Mathis would fail on the merits even if he could assert it in
his § 2241 petition. Cathey does not contest that his 1987 federal conviction for possession with
intent to distribute cocaine constitutes a “controlled substance offense” as that term is defined in
U.S.S.G. § 4B1.2(b). Instead, he asserts that his 1993 conviction in the Graves Circuit Court for
Trafficking in a Schedule II controlled substance (cocaine) was imposed under a statute that
criminalizes a broader range of conduct than that set forth in the guideline rule.
In that case, Cathey was found guilty of violating Ky. Rev. Stat. 218A.1412(1), and was
sentenced to ten years imprisonment on March 19, 1993.2 The Kentucky statute makes it a crime
to “traffic” in a controlled substance, meaning “to manufacture, distribute, dispense, sell,
transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled
substance.” Ky. Rev. Stat. 218A.010(55). Notably, regardless of how the defendant trafficked
in the controlled substance, the penalty is the same, Ky. Rev. Stat. 218A.1412(3), meaning the
statute defines a single offense.
The language of Kentucky’s definitional statute is functionally indistinguishable from
that found in the sentencing guidelines, which defines a “controlled substance offense” as “an
2

See https://kcoj.kycourts.net/CourtNet/Search/CaseAtAGlance?county=042&court=1&
division=CI&caseNumber=92-CR-00066&caseTypeCode=CR&client_id=0 (visited on October
5, 2017).

offense under federal or state law, punishable by imprisonment for a term exceeding one year,
that prohibits the manufacture, import, export, distribution, or dispensing of a controlled
substance (or a counterfeit substance) or the possession of a controlled substance (or a
counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.”
U.S.S.G. § 4B1.2(b) (emphasis added). The Kentucky statute uses the same terms, adding only
the “sale” or “transfer” of narcotics as prohibited conduct. But those terms connote the same
range of conduct as that involved in the “distribution” of a controlled substance. See 21 U.S.C.
§ 802(11) (defining “distribute” under federal criminal law to mean to “deliver” a controlled
substance); see also United States v. Maldonado, 864 F. 3d 893 (8th Cir. 2017). And unlike the
Texas statute involved in United States v. Hinkle, 832 F.3d 569, 571 (5th Cir. 2016), neither the
“sale” nor “transfer” of narcotics under the Kentucky statute contemplate a mere “offer to sell”
them. Even after Mathis was decided, this Court has thus held that a conviction under Ky. Rev.
Stat. 218A.1412 constitutes a “controlled substance offense” under §4B1.2(b). United States v.
Knox, No. 11-CR-60-DLB, 2016 WL 7320883, at *3 (E.D. Ky. Dec. 15, 2016). For each of
these reasons, Cathey’s petition must be denied.
Accordingly, IT IS ORDERED that:
1.

Cathey’s petition for a writ of habeas corpus [R. 1] is DENIED;

2.

This action is DISMISSED and STRICKEN from the Court’s docket; and

3.

The Court will enter an appropriate judgment.

This the 12th day of October, 2017.