George v. Butler
MEMORANDUM OPINION & ORDER: 1. Georges petition for a writ of habeas corpus [R. 1] is DENIED. 2. The Court will enter a judgment contemporaneously with this order. 3. This matter is DISMISSED and STRICKEN from the docket.. Signed by Judge Karen K. Caldwell on 11/20/2017.(JMB)cc: COR,Demarcus George via US Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
DEMARCUS C. GEORGE,
Civil Action No. 6: 17-05-KKC
SANDRA BUTLER, Warden,
Inmate Demarcus George has filed a pro se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241 to challenge the enhancement of his federal sentence. [R. 1] This matter is pending for
initial screening of George’s petition. 28 U.S.C. § 2243. The Court will deny the relief sought because
George may not assert his claims in a § 2241 petition.
In October 2012, a federal grand jury in the Western District of Kentucky returned a
superseding indictment charging George with one count of knowingly and intentionally possessing
with intent to distribute a mixture and substance containing cocaine, a Schedule II controlled
substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count 1), one count of knowingly and
intentionally possessing with intent to distribute a mixture or substance containing a detectable
amount of marijuana, a Schedule I controlled substance, in violation of 21 U.S.C. § 841(a)(1) (Count
2), and one count of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2) (Count 3). In February 2013, George signed a written plea agreement in
which he agreed to plead guilty to Count 1 of the superseding indictment. The United States agreed
to move to dismiss the remaining counts against George (Count 2 and 3) at the time of sentencing. In
the plea agreement, George further agreed that he “knowingly and voluntarily waives the right (a) to
directly appeal his conviction and the resulting sentence pursuant to Fed. R. App. P. 4(b) and 18 U.S.C.
§ 3742, and (b) unless based on claims of ineffective assistance of counsel or prosecutorial misconduct,
to contest or collaterally attack his conviction and the resulting sentence under 28 U.S.C. § 2255 or
In June 2013, the trial court sentenced George to a term of 151 months imprisonment on Count
1, to be followed by a 3-year term of supervised release. The trial court also dismissed Counts 2 and 3
upon the motion of the United States. Although George did not file a direct appeal, he file a motion to
vacate his conviction and sentence pursuant to 28 U.S.C. § 2255 based on ineffective assistance of
counsel. In his motion, George argued that his counsel had misinformed him that his Sentencing
Guideline range would be 48 to 84 months imprisonment and that he had relied on this erroneous
advice when he accepted the United States’ written offer to plead guilty in exchange for a
recommendation of a sentence “at the lowest end of the applicable Guideline Range.” In fact, the
Presentence Investigation Report (“PSI”) revealed that he qualified as a career offender, resulting in
a Guideline Range of 151 to 188 months. In February 2015, the trial court denied George’s § 2255
motion and denied a certificate of appealability. United States v. George, No. 5: 12-CR-31-TBR-LLK
(W.D. Ky. 2012).
Although the PSI prepared by the United States Probation Office in George’s underlying
criminal case is sealed, in his § 2241 petition, George states that his sentence was enhanced because
he qualified as a “Career Offender” pursuant to U.S.S.G. § 4B1.1(a) based on his multiple prior felony
convictions for controlled substance offenses, including one conviction in the Christian Circuit Court
in Christian County, Kentucky, for violating Kentucky Revised Statute (“K.R.S.”) 218A.1411,
Trafficking In a Controlled Substance Within 1000 Yards of a School. [R. 1-1 at 2-3, 6] Based on the
Career Offender enhancement, his applicable Guideline Range was 151-188 months of imprisonment.
[Id. at 5] Thus, his actual sentence of 151 months was at the low end of the Guideline Range.
In his § 2241 petition, George argues that, in light of the Supreme Court’s decision in Mathis
v. United States, __ U.S. __, 136 S. Ct. 2243 (2016), his prior conviction for violation of K.R.S. §
218A.1411 can no longer serve as a prior predicate offense for the Career Offender enhancement under
U.S.S.G. § 4B1.1. [R. 1-1 at 6, 9-13].
George’s petition must be denied because he waived his right to collaterally attack his
conviction or sentence in his plea agreement. Such waivers apply to § 2241 proceedings. Muller v.
Sauers, 523 F. App’x 110, 112 (3d Cir. 2013) (“Muller’s plea agreement included a waiver of collateral2
attack rights ‘in any post-conviction proceeding, including-but not limited to-any proceeding under 28
U.S.C. § 2255.’ Therefore, his plea agreement forecloses relief pursuant to § 2241…”); Rivera v.
Warden, FCI, Elkton, 27 F. App’x 511, 515 (6th Cir. 2001); Solis-Caceres v. Sepanek, No. 13-21-HRW,
2013 WL 4017119, at *3 (E.D. Ky. Aug. 6, 2013) (collecting cases).
Even if this were not so, George may not pursue his claims in this proceeding.
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). A § 2241 petition may typically 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 conviction or sentence must file a motion under § 2255.
Peterman, 249 F.3d at 461 (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” of 28 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, 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 § 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.
George does not satisfy the first criteria in Hill because he was sentenced in 2013, long after
Booker was decided. In addition, although he attempts to rely on the Supreme Court’s decision in
Mathis, for a claim based upon a recently-issued Supreme Court decision interpreting a statute to be
cognizable in a § 2241 petition, the holding must be retroactively applicable to cases on collateral
review. Wooten v. Cauley, 677 F.3d 303, 307-08 (6th Cir. 2012). The Supreme Court in Mathis 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.
Conzelmann, 2017 WL 4159184 (6th Cir. 2017). Therefore George may not rely on Mathis.
George’s attempt to rely on Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013) also fails. Not
only is Seventh Circuit precedent not binding on this Court, but the Court of Appeals’ holding in Brown
that the misapplication of the sentencing guidelines could represent a “fundamental defect that
constitutes a miscarriage of justice corrigible in a § 2241 proceeding,” turned on the fact that the
defendant was sentence in the pre-Booker mandatory guidelines era. Id. at 588. In contrast, George
was sentence in 2013, well after the Supreme Court in Booker rendered the sentencing guidelines
advisory. Thus, George is not entitled to relief under Brown.
For each of these reasons, George’s petition fails to establish any basis for habeas relief.
Accordingly, it is hereby ORDERED as follows:
George’s petition for a writ of habeas corpus [R. 1] is DENIED.
The Court will enter a judgment contemporaneously with this order.
This matter is DISMISSED and STRICKEN from the docket.
Dated November 20, 2017.
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