Moose v. Butler

Filing 9

MEMORANDUM OPINION & ORDER: (1) Petitioner Thirplus Moose's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. # 1 ) is DENIED; (2) This action is DISMISSED and STRICKEN from the Courts active docket;and (3) A separate judgment will be entered contemporaneously herewith. Signed by Judge David L. Bunning on 3/28/18.(MRS)cc: COR, pro se filer

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 17-260-DLB
THIRPLUS MOOSE
VS.

PETITIONER
MEMORANDUM OPINION AND ORDER

SANDRA BUTLER, WARDEN

RESPONDENT
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In 2012, Petitioner Thirplus Moose pled guilty to conspiracy to commit bank
robbery, armed bank robbery with forcible restraint, and the use or discharge of a firearm
during a crime of violence. See United States v. Moose, No. 4:08-cr-262-GAF-2 (W.D.
Mo. 2008). At sentencing, Moose received a 420 month prison term. See id. In Moose’s
plea agreement, he waived his right to appeal his conviction or sentence, and this waiver
was upheld on direct appeal. See id.
Moose then filed multiple petitions for writs of habeas corpus. He argued in these
petitions that, among other things, the federal court lacked jurisdiction in his criminal case.
The United States District Court for the Central District of Illinois repeatedly denied the
petitions as frivolous. See Moose v. United States, No. 1:16-cv-01296-JES (C.D. Ill. 2016);
Moose v. United States, No. 1:16-cv-01347 (C.D. Ill. 2016); Moose v. United States, No.
1:16-cv-01403-JBM (C.D. Ill. 2016).
Moose is now confined at the Federal Correctional Institution in Manchester,
Kentucky. Proceeding without counsel, Moose has filed yet another petition for a writ of
habeas corpus. (Doc. # 1). Ultimately, Moose puts forth numerous arguments, including
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but not limited to claiming that the Indictment in his criminal case was “fatally defective”
because he “did not have fair notice that the grand jury was investigating him” and the
Government “misappl[ied] statute(s)” and “violated the ‘Fair Notice Doctrine, … Fifth
Amendment, … and the Administrative Procedures Act.’” Id. at 4-5. These are just a few
of the many arguments that Moose raises in his petition, all challenging his underlying
convictions and sentence.
Moose’s § 2241 petition constitutes an impermissible collateral attack on his
convictions and sentence. Although a federal prisoner may challenge the legality of his
convictions and sentence on direct appeal and through a § 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 § 2241 petition).
After all, a § 2241 petition is usually only 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. See Terrell v.
United States, 564 F.3d 442, 447 (6th Cir. 2009). Simply put, Moose cannot use a § 2241
petition as a way of challenging his convictions and sentence.
It is true that, under certain limited circumstances, “a federal prisoner may also
challenge the validity of his convictions or sentence under § 2241.” Bess v. Walton, 468
F. App’x 588, 589 (6th Cir. 2012). However, the Sixth Circuit has explained that this is
true only when the prisoner is trying to rely on an intervening change in the law to establish
his actual innocence, see Wooten v. Cauley, 677 F.3d 303, 307-08 (6th Cir. 2012), or to
challenge a sentence enhancement. See Hill v. Masters, 836 F.3d 591, 599-600 (6th Cir.
2016). That is not the case here. Instead, Moose is simply trying to re-litigate arguments

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that he either made or could have made on direct appeal or in a § 2255 motion. That is
not proper in a § 2241 petition.
Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
(1)

Petitioner Thirplus Moose’s petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2241 (Doc. #1) is DENIED;
(2)

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

(3)

A separate judgment will be entered contemporaneously herewith.

and

This 28th day of March, 2018.

K:\DATA\ORDERS\ProSe\Moose 17-260-DLB Memorandum.docx

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