Ramirez v. Kizziah

Filing 10

MEMORANDUM OPINION AND ORDER: 1. Ramirez's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 1 is DENIED. 2. This action is DISMISSED and STRICKEN from Court's docket. 3. Judgment shall be entered contemporaneously with this Memorandum Opinion and Order. Signed by Judge Karen K. Caldwell on 8/9/2017. (RCB)cc: COR, Ramirez

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
JOE A. RAMIREZ,
Petitioner,

Civil Action No. 7: 16-280-KKC

V.
GREGORY KIZZIAH, Warden,

MEMORANDUM OPINION
AND ORDER

Respondent.
Inmate Joe A. Ramirez has filed a pro se petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241 and has paid the filing fee. [R. 1, 7]. The Court conducts an initial review of
Ramirez’s petition. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F. App’x
544, 545 (6th Cir. 2011). For the reasons set forth below, the Court must deny relief.
On November 9, 2006, pursuant to a plea agreement with the United States, Ramirez
pled guilty to possession with intent to distribute methamphetamine and aiding and abetting
in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(B)(viii) and 18 U.S.C. § 2. See United States v.
Ramirez, No. 6:06-cr-25-C-BG-1 (N.D. Tex. 2006). As part of that agreement, Ramirez expressly
waived his right to appeal from either his conviction or his sentence, as well as “his right to
contest his conviction and sentence in any collateral proceeding, including proceedings under 28
U.S.C. § 2241 and 28 U.S.C. § 2255.” Id. at R. 196, p. 6. However, Ramirez reserved the rights
“(a) to bring a direct appeal of (i) a sentence exceeding the statutory maximum punishment, (ii)
an upward departure or variance from the guideline range deemed applicable by the district
court, or (iii) an arithmetic error at sentencing, and (b) a claim of ineffective assistance of
counsel.” Id.
According to Ramirez, he was determined to be a career offender pursuant to § 4B1.1 of
the United States Sentencing Guidelines because he had at least two prior felony convictions
for controlled substance offenses. [R. 1-1 at p. 3-4, 6]. On February 7, 2007, the United States

District Court for the Northern District of Texas sentenced Ramirez to a total of 293 months of
in prison to run consecutive with any sentence imposed in Case No. 05-849, Eastland County
Court and Case No. CR-06-21145 pending in the 91st District Court, Eastland County, Texas,
to be followed by a supervised release term of 4 years. See Ramirez, No. 6:06-cr-25-C-BG-1 at
R. 235, 236.
On February 12, 2007, Ramirez filed a notice of appeal to the United States Court of
Appeals for the Fifth Circuit from the judgment of conviction and sentence in his case. Id. at R.
239. This appeal was dismissed as frivolous in 2008. Id. at R. 276, 277.
In 2009, Ramirez filed a motion under 28 U.S.C. § 2255 seeking relief from his sentence
on the grounds of ineffective assistance of counsel, as well as arguing that the Court erred in
imposing his sentence to run consecutively to a yet-to-be imposed state sentence. Id. at R. 294;
Ramirez v. United States, No. 6:09-cv-97-C (N.D. Tex. 2009). On August 31, 2011, Ramirez’s §
2255 motion was dismissed as time-barred, although the Court also indicated that, were it not
time-barred, the motion should be denied on the merits. Id. at R. 11.
In December 2014, Ramirez filed a motion to reduce his sentence pursuant to 18 U.S.C.
§ 3582(c) based upon Amendment 782 to § 1B1.10 of the United States Sentencing Guidelines.
See Ramirez, No. 6:06-cr-25-C-BG-1 at R. 333. In May 2016, this motion was denied, with the
Court explaining that Ramirez’s sentence of 293 months imprisonment “was fair in light of the
factors in Title 18, United States Code, Section 3553(a), including his criminal history, offense
conduct or relevant conduct, and the post-sentencing conduct. Therefore, the defendant shall
not be granted a further reduction in his sentence.” Id. at R. 367. Ramirez appealed this order
to the Fifth Circuit Court of Appeals, id. at R. 368, but this appeal was dismissed for want of
prosecution. Id. at R. 374.
In March 2016, Ramirez filed a second motion under 28 U.S.C. § 2255 seeking relief from
his sentence, again on the grounds of ineffective assistance of counsel. Ramirez, No. 6:06-cr-252

C-BG-1 at R. 363; Ramirez v. United States, No. 6:16-cv-17-C (N.D. Tex. 2016). Among his
arguments, Ramirez argued that counsel was ineffective for failing to object to the predicate
acts that were the basis for the determination in his Pre-Sentence Report that Ramirez was a
career offender as, according to Ramirez, he is innocent of these predicate offenses. According
to Ramirez, had counsel objected, it would have been successful and his sentence would have
been 10 years, rather than the 25-year career offender sentence imposed. Because Ramirez had
previously filed a motion pursuant to 28 U.S.C. § 2255, but had not received permission from
the United States Court of Appeals for the Fifth Circuit to file a second or successive motion to
vacate, the trial court transferred the matter to the Fifth Circuit. Id. at R. 3. The Fifth Circuit
dismissed Ramirez’s authorization to file a successive § 2255 motion for failure to comply with
a notice issued by that Court. Id. at R. 6.
In December 2016, Ramirez filed his petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241 in this Court, arguing that recent decisions issued by the United States Supreme
Court constitute a substantial change in the law that retroactively affects the sentencing
guidelines applicable to Ramirez “that are in the excess maximum authorized.” [R. 1-1 at p. 2].
Specifically, Ramirez states that his petition is filed pursuant to United States v. Hinkle, 832
F.3d 569 (5th Cir. 2016), Mathis v. United States, __ U.S. __, 136 S. Ct. 2243 (2016), Beckles v.
United States, __ U.S. __, 137 S.Ct. 886 (2017), Welch v. United States, __ U.S. __, 136 S.Ct. 1257
(2016), and Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015). Ramirez argues that,
under these cases, his prior drug convictions in Texas no longer qualify as either “serious drug
offenses,” nor do they meet the requirements of a “controlled substance offense” for purposes of
his classification as a career offender pursuant to § 4B1.1 of the United States Sentencing
Guidelines.
Ramirez’s petition must be denied. First, Ramirez is barred from collaterally attacking
his conviction or sentence pursuant to the waiver provision found in his plea agreement. In that
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agreement, Ramirez expressly and unequivocally waived his right to either appeal his conviction
or sentence or to collaterally attack either of them in any post-conviction proceeding. Such
waivers are enforceable in habeas proceedings under § 2241, and preclude the assertion of the
very arguments Ramirez pursues here. Solis-Caceres v. Sepanek, No. 13-21-HRW, 2013 WL
4017119, at *3 (E.D. Ky. Aug. 6, 2013) (collecting cases). See also Muse v. Daniels, 2016 WL
1163836, at *1 (7th Cir. Feb. 24, 2016) (holding that a collateral attack waiver “would apply
equally in a proceeding under § 2241, had not § 2255(e) taken precedence, for § 2241 is a form
of collateral attack.”); Muller v. Sauers, 523 F. App’x 110, 112 (3d Cir. 2013) (“Muller’s plea
agreement included a waiver of collateral-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 …”); Johnson v. Warden, 551 F. App’x 489, 491
(11th Cir. 2013); Rivera v. Warden, FCI, Elkton, 27 F. App’x 511, 515 (6th Cir. 2001); United
States v. Chavez-Salais, 337 F.3d 1170, 1172 (10th Cir. 2003) (“The conventional understanding
of ‘collateral attack’ comprises challenges brought under, for example, 28 U.S.C. § 2241, 28
U.S.C. § 2254, 28 U.S.C. § 2255, as well as writs of coram nobis.”)
Although Ramirez retained the right to bring a direct appeal of a sentence exceeding the
statutory maximum punishment, an upward departure or variance in the applicable guideline
range, or an arithmetic error at sentencing, he clearly and unequivocally waived the right to
collaterally attack his sentence by filing a motion for relief pursuant to 28 U.S.C. § 2241. This
waiver alone is grounds for dismissal of Ramirez’s petition.
However, even putting aside the waiver, Ramirez is still not entitled to the relief he
seeks. To the extent that Ramirez relies on the United States Supreme Court decisions in
Johnson and Welch, neither of these cases are applicable here. In Johnson, the Supreme Court
held that the residual clause of the Armed Career Criminal Act (“the ACCA”), 18 U.S.C. §
924(e)(2)(B)(ii) is unconstitutionally vague, and that imposing an increased sentence under that
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clause violates the Constitution’s guarantee of due process guaranteed under the Fifth
Amendment of the U.S. Constitution. Johnson, 135 S. Ct. at 2563. In Welch, the Supreme Court
held that Johnson applies retroactively to cases on collateral review. Welch, 136 S. Ct. at 1265
(2016). Here, Ramirez alleges that he was determined to be a career offender pursuant to §§
4B1.1 and 4B1.2 of the United States Sentencing Guidelines because he had at least two prior
felony convictions for controlled substance offenses. [R. 1-1 at p. 3-4, 6]. He does not allege that
he was sentenced under the ACCA, which was the specific statutory scheme addressed in
Johnson. Thus, Johnson and Welch do not apply to him. Indeed, in Beckles (another case
erroneously relied upon by Ramirez), the United States Supreme Court held that the Sentencing
Guidelines are not subject to a due process vagueness challenge, rendering them immune from
the very type of Johnson claim Ramirez attempts to assert against his Guidelines sentence here.
Beckles, 137 S. Ct. 886.
Moreover, Ramirez may not use a § 2241 petition to assert Mathis as a ground to
challenge the enhancement of his sentence. A § 2241 petition may 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 use a motion under
§ 2255. United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001) (explaining the distinction
between permissible uses for a § 2255 motion and a § 2241 petition). The prisoner may not
resort to § 2241 to seek relief even when § 2255 is not presently “available” to him, whether
because he filed a timely motion and was denied relief; he did not file a timely § 2255 motion; or
he filed an untimely motion. Copeland v. Hemingway, 36 F. App’x 793, 795 (6th Cir. 2002). In
other words, prisoners cannot use a habeas petition under § 2241 as yet another “bite at the
apple.” Hernandez v. Lamanna, 16 F. App’x 317, 360 (6th Cir. 2001).
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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 federal sentence no longer
qualified as a valid predicate offense. Hill, 836 F. 3d at 599-600. Ramirez’s claim fails to satisfy
the threshold requirement of Hill because he was sentenced in 2007, two years after Booker
rendered the Sentencing Guidelines advisory rather than mandatory. Ramirez’s claim therefore
falls outside the decidedly narrow exception set forth in Hill, and his sentencing claim therefore
does not fall within the narrow scope of § 2255(e)’s savings clause. Peterman, 249 F.3d at 462.
His petition must therefore be denied.
Finally, to the extent that Ramirez also attempts to rely on Hinkle, 832 F.3d 569, Hinkle
was decided by the United States Court of Appeals for the Fifth Circuit, not the United States
Supreme Court, and is therefore not binding on this Court. More importantly, in Hinkle, the
Fifth Circuit Court of Appeals applied the “modified categorical approach” used in Mathis to
determine whether an offense qualifies as an ACCA predicate to a case on direct appeal, not on
collateral review. Hinkle, 832 F.3d at 574-75. See USA v. Ramirez, 2017 WL 2819906 at *6
(S.D. Tex. June 28, 2017)(“Because Mathis does not apply on collateral review, the holdings in
Hinkle and [United States v. Tanksley, 854 F.3d 284 (5th Cir. 2017)] do not apply on collateral
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review either.”); Brodie v. United States, 2017 WL 2540570 at *2 (W.D.Ky. June 9,
2017)(rejecting the argument that Hinkle demonstrates that Mathis should apply retroactively
to cases on collateral review because Hinkle was decided on direct appeal and not collateral
review). Thus, Hinkle is inapplicable here.
For all of these reasons, Ramirez’s petition must be denied.

Accordingly, IT IS

ORDERED that:
1.

Ramirez’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.

Judgment shall be entered contemporaneously with this Memorandum Opinion

and Order.
Dated August 9, 2017.

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