Contreras v. Ormond

Filing 4

MEMORANDUM OPINION & ORDER: 1. Contreras's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1 ] is DENIED. 2. This action is DISMISSED and STRICKEN from the Courts docket. 3. A corresponding judgment will be entered this date. Signed by Judge Gregory F. VanTatenhove on 12/13/17.(SYD)cc: mailed to pro se filer

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

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Petitioner,
v.
J. RAY ORMOND, Warden,
Respondent.

Civil No. 6:17-329-GFVT

MEMORANDUM OPINION
AND ORDER

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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.
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. 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convictions were no longer valid predicate offenses to subject him to the career-offender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. The trial court, however, denied Contreras’s motion as untimely and
added that, even if his motion was timely, Mathis did not apply to Contreras’s case “because it
was decided after he was sentenced and was not made retroactive on collateral attack.” Id. at R.
147, 151.
Contreras has now filed his § 2241 petition with this Court, and he restates his Mathisrelated claim. Contreras’s petition, however, constitutes an impermissible collateral attack on his
sentence. That is because although a federal prisoner may challenge the legality of his sentence
on direct appeal and through a timely § 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, Contreras cannot use a § 2241 petition as a way of challenging his sentence.
Contreras nevertheless argues that he can attack his sentence in a § 2241 petition, and he
cites Hill v. Masters, 836 F.3d 591, 599 (6th Cir. 2016), to support his position. [R. 1-1 at 6.] It
is true that, in Hill, the Sixth Circuit indicated for the first time that a prisoner may challenge his
sentence in a § 2241 petition. However, in doing so, the court expressly limited its decision to
the following, very narrow circumstances:

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(1) prisoners who were sentenced under the mandatory guidelines regime preUnited States v. Booker, 543 U.S. 220 . . . (2005), (2) who were foreclosed from
filing a successive petition under § 2255, and (3) when a subsequent, retroactive
change in statutory interpretation by the Supreme Court reveals that a previous
conviction is not a predicate offense for a career-offender enhancement.
Id. at 599-600.
Those circumstances do not apply in this case. That is because the trial court sentenced
Contreras in 2009, well after the Supreme Court decided Booker. Plus, Contreras has failed to
identify a subsequent, retroactive change in statutory interpretation by the Supreme Court that
reveals that one of his previous convictions is not a predicate offense for purposes of the careeroffender enhancement. While Contreras cites Mathis, the Sixth Circuit recently explained in a
published decision that “Mathis was dictated by prior precedent (indeed two decades worth),”
and, thus, it did not announce a new rule, let alone a retroactive one. In re Conzelmann, No. 173270, 2017 WL 4159184, *1 (6th Cir. September 20, 2017). Contreras’s reliance on Mathis is
therefore unavailing.
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.
2. This action is DISMISSED and STRICKEN from the Court’s docket.
3. A corresponding judgment will be entered this date.

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This the 13th day of December, 2017.

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