Cherry v. Warden, USP McCreary

Filing 4

MEMORANDUM OPINION & ORDER: (1) Cherry's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. # 1 ) is DENIED; (2) This action will be DISMISSED and STRICKEN from the Courts docket; and (3) A corresponding Judgment will be entered on this date. Signed by Judge David L. Bunning on 3/1/2018.(RBB)cc: COR, paper copy to Taron Dontrell Cherry, via US Mail.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 18-58-DLB
TARON DONTRELL CHERRY
VS.

PETITIONER

MEMORANDUM OPINION AND ORDER

WARDEN, USP-MCCREARY

RESPONDENT
*** *** *** ***

Taron Dontrell Cherry pled guilty in 2016 to being a felon in possession of a firearm,
and was sentenced to 70 months in prison. United States v. Taron Cherry, No. 4:15-cr269 (E.D. Mo. 2016). Cherry is now an inmate at the United States Penitentiary –
McCreary in Pine Knot, Kentucky. Proceeding without a lawyer, Cherry filed a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in which he attacks his 70-month
sentence. (Doc #1). Ultimately, Cherry argues that trial court erred when it determined
that he was previously convicted of a crime of violence and, thus, subject to an enhanced
sentence under the United States Sentencing Guidelines.
Cherry’s petition, however, constitutes an impermissible collateral attack on his
sentence. Although a federal prisoner may challenge the legality of his sentence on direct
appeal and through a motion pursuant to 28 U.S.C. § 2255, 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). This is
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because 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). Put simply, Cherry cannot use a § 2241
petition as a way of challenging his sentence.
Cherry nevertheless argues that he can attack his sentence in a § 2241 petition,
and he cites Hill v. Masters, 836 F.3d 591 (6th Cir. 2016), to support his position. 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:
(1) prisoners who were sentenced under the mandatory guidelines regime
pre-United 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 here. The trial court sentenced Cherry in 2016,
well after the Supreme Court decided Booker. In addition, although Cherry has cited a
number of decisions, he has not clearly identified a subsequent, retroactive change in
statutory interpretation by the Supreme Court that appears relevant to his case. In
particular, Cherry’s heavy reliance on Mathis v. United States, 136 S. Ct. 2243 (2016) is
misplaced, as the Sixth Circuit has recently explained in a published decision that “Mathis
was dictated by prior precedent (indeed two decades worth),” and, thus, did not announce
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a new rule, let alone a retroactive one. In re Conzelmann, 872 F.3d 375, 376-77 (6th Cir.
2017). In short, Cherry’s petition falls outside of Hill’s narrow confines and, therefore, he
cannot attack his sentence in a § 2241 petition.
Accordingly, it is hereby ORDERED as follows:
(1)

Cherry’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241

(Doc. #1) is DENIED;
(2)

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

(3)

A corresponding Judgment will be entered on this date.

and

This 1st day of March, 2018.

K:\DATA\ORDERS\ProSe\Cherry 18-58-DLB Memorandum CDS.docx

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