Contreras v. Ormond

Filing 6

MEMORANDUM OPINION & ORDER: IT IS ORDERED that: 1. Contreras's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1 ] is DENIED WITHOUT PREJUDICE. 2. This action is DISMISSED and STRICKEN from the Court's docket. Signed by Judge Karen K. Caldwell on 07/17/2017.(KJA)cc: COR, mailed paper copy to pro se filer

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
JAVIER CONTRERAS,
Petitioner,

Civil Action No. 6: 17-077-KKC

v.
J. RAY ORMOND, Warden,

MEMORANDUM OPINION
AND ORDER

Respondent.
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Javier Contreras is an inmate confined at the United States Penitentiary – McCreary in Pine
Knot, Kentucky. Proceeding without an attorney, Contreras filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. [R. 1]. For the reasons set forth below, the Court will deny
Contreras’s petition without prejudice.
In 2009, Contreras was convicted of conspiracy to possess with the intent to distribute more
than 50 kilograms of marijuana. See United States v. Contreras, No. 5:08-cr-257 (S.D. Tex. 2009).
The United States District Court for the Southern District of Texas determined that Contreras was
a career offender pursuant to section 4B1.1 of the United States Sentencing Guidelines because he
had at least two prior felony convictions for either a crime of violence or a controlled substance
offense. Therefore, Contreras’s sentence was enhanced, and his advisory guidelines range was
262 to 327 months in prison. The trial court sentenced Contreras to 262 months in prison.
Contreras then challenged his conviction on direct appeal, but the United States Court of Appeals
for the Fifth Circuit affirmed that conviction. See United States v. Contreras, No. 09-40571 (5th
Cir. 2010).

Over six years later, in August 2016, Contreras filed a motion to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255, as well as several other motions attacking his sentence.
See United States v. Contreras, No. 5:08-cr-257 (S.D. Tex. 2016) at R. 120 – R. 129. Contreras
argued, among other things, that in light of the Supreme Court’s decision in Mathis v. United
States, 136 S. Ct. 2243 (2016), his prior felony convictions are no longer valid predicate offenses
to subject him to the career-offender enhancement under the sentencing guidelines. See United
States v. Contreras, No. 5:08-cr-257 (S.D. Tex. 2016) at R. 129.
After receiving Contreras’s submissions, the United States District Court for the Southern
District of Texas stated that “it appears that Petitioner’s case is time-barred,” and it gave Contreras
“notice that it is considering dismissing [his] § 2255 Motion on that basis.” See id. at R. 131. That
said, the court permitted Contreras and the Government to brief the timeliness issue, and it later
granted Contreras leave to “include [an] argument for relief under Mathis.” See id. at R. 131 and
R. 140. The court indicated that, after briefing was over, it would rule on Contreras’s § 2255
motion. See id.
At this point, it appears that Contreras’s § 2255 motion remains pending before the United
States District Court for the Southern District of Texas. Nevertheless, Contreras went ahead and
filed his § 2241 petition with this Court, echoing the Mathis-related argument he made while
briefing his § 2255 motion. [R. 1]. Ultimately, since a § 2255 motion is the correct mechanism
for a federal prisoner to challenge his conviction or sentence, this Court will deny Contreras’s
§ 2241 petition without prejudice. Simply put, Contreras must first fully litigate his § 2255 motion
in the Southern District of Texas before he may even attempt to seek relief from this Court pursuant
to § 2241. See White v. Grondolsky, No. 6:06-cv-309-DCR, 2006 WL 2385358, *3 (E.D. Ky.

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2006) (“[T]he Petitioner must first pursue his trial court remedy under § 2255 before he may seek
relief under § 2241.”).
Accordingly, IT IS ORDERED that:
1. Contreras’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1] is
DENIED WITHOUT PREJUDICE.
2. This action is DISMISSED and STRICKEN from the Court’s docket.
Dated July 17, 2017.

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