McKoy v. Kizziah

Filing 6

MEMORANDUM OPINION AND ORDER: 1. Petitioner McCoy's petition for a writ of habeas corpus 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 11/20/2017. (RCB)cc: COR, McKoy via US mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
KENNETH MCKOY,

Civil Action No. 7: 17-82-KKC

Petitioner,
V.

MEMORANDUM OPINION
AND ORDER

GREGORY KIZZIAH, Warden,
Respondent.

*** *** *** ***
Federal inmate Kenneth McKoy has filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. [R. 1] The Court conducts an initial review of habeas
corpus petitions. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F. App’x
544, 545 (6th Cir. 2011). McKoy’s petition will be denied for the reasons set forth below.
In March 2007, McKoy pled guilty to one count of distributing 100 or more grams of
heroin in violation of 21 U.S.C. § 841(a)(1). In the plea agreement, “[t]he parties agree[d]
that Kenneth McKoy is a career offender pursuant to Section 4Bl.l(a) of the Sentencing
Guidelines ...” based upon two 2004 convictions in Pennsylvania for possession with intent
to deliver a controlled substance in violation of 35 Pa. Stat. § 780-113(a)(30). In addition,
McKoy waived his right to file a direct appeal, and further expressly “waive[d] the right to
file a motion to vacate sentence, under 28 U.S.C. §2255, attacking his conviction or
sentence, and the right to file any other collateral proceeding attacking his conviction or
sentence.” (emphasis added).

In August 2007, the trial court sentenced McKoy to 188

months imprisonment, the very bottom of the advisory guidelines range.
On direct appeal, the Third Circuit affirmed McKoy’s conviction and sentence in a
summary order. McKoy then sought relief by way of motion filed pursuant to 28 U.S.C. §
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2255, again challenging his designation as a career offender. In a thorough opinion, the
trial court noted that both the factual basis for McKoy’s designation as a career offender
and the collateral attack waiver contained in his plea agreement were discussed extensively
during the change of plea hearing and subsequently at the sentencing hearing. The trial
court noted that McKoy’s § 2255 motion was untimely, barred by the waiver provision in his
plea agreement, and substantively without merit.

United States v. McKoy, No. 06-332

(W.D. Pa. 2006).
In his § 2241 petition in this Court, McKoy repeatedly invokes the Supreme Court’s
decisions in Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015), Welch v. United
States, __ U.S. __, 136 S. Ct. 1257 (2016), and Mathis v. United States, __ U.S. __, 136 S. Ct.
2243 (2016), as well as the Fifth Circuit’s decision in United States v. Hinkle, 832 F.3d 569,
572-73 (5th Cir. 2016) to again assert that his sentence was improperly enhanced. [R. 1]
McKoy’s petition must be denied for several reasons. First, as noted above, in his
plea agreement McKoy expressly and unequivocally waived his right “to file any other
collateral proceeding attacking his conviction or sentence.”

McKoy therefore may not

challenge his conviction or sentence in this proceeding because the waiver provision in his
plea agreement applies to collateral attacks asserted under § 2241. Muse v. Daniels, 815 F.
3d 265, 266 (7th Cir. 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 …”); United States v. Chavez-Salais, 337
F.3d 1170, 1172 (10th Cir. 2003) (“The conventional understanding of ‘collateral attack’

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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.”).
McKoy is therefore barred from challenging his conviction or sentence in this
proceeding, and his petition must be dismissed. 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). See
also Solis-Caceres v. Sepanek, No. 13-21-HRW, 2013 WL 4017119, at *3 (E.D. Ky. Aug. 6,
2013) (collecting cases); Combs v. Hickey, No. 11-12-JMH, 2011 WL 65598 (E.D. Ky. Jan. 7,
2011).
McKoy might be able to challenge the legality of his conviction or sentence in a
§ 2255 motion, but cannot do so in a § 2241 petition. United States v. Peterman, 249 F.3d
458, 461 (6th Cir. 2001) (explaining the distinction between a § 2255 motion and a § 2241
petition). Having failed to obtain relief from his conviction and sentence under § 2255, a
prisoner may not simply invoke § 2241 as an additional or alternative remedy to the one
provided by § 2255. Hernandez v. Lamanna, 16 F. App’x 317, 360 (6th Cir. 2001).
The savings clause found in 28 U.S.C. § 2255(e) carves out an exception to this
general rule, which does not apply here. Here, McKoy does not challenge his conviction, but
his sentence.

The narrow range of claims cognizable in a § 2241 proceeding does not

include sentencing challenges. 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 the general rule that 28 U.S.C. § 2255, not § 2241, must be used to
challenge a conviction or sentence. Under Hill, a challenge to a sentence is permissible in a
§ 2241 petition 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
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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.
McKoy’s claim fails to satisfy at least the first and third requirements. McKoy was
sentenced in August 2007, nearly three years after Booker was decided, under an advisory
guidelines regime. And the Supreme Court in Mathis merely reiterated what it had held
long ago: that a statute is considered “divisible,” therefore permitting use of the modified
categorical approach to determine whether a prior offense may be used to enhance a
sentence under the career offender provision, only when it contains alternative elements
(hence defining multiple offenses), not when it merely contains alternative factual means of
committing a single offense. Mathis, 136 S. Ct. at 2249, 2251-52 (citing Taylor v. United
States, 495 U.S. 575 (1990)). But for a claim based upon a recently-issued Supreme Court
decision interpreting a statute to be cognizable in a § 2241 petition, the holding must be
retroactively applicable to cases on collateral review. Wooten v. Cauley, 677 F.3d 303, 30708 (6th Cir. 2012). The Supreme Court in Mathis itself made abundantly clear that its
holding was required by decades-old precedent and hence did not announce any new rule,
Mathis, 136 S. Ct. at 2257, and the Sixth Circuit has joined other circuits in expressly so
holding. In re: Conzelmann, 872 F. 3d 375, 376-77 (6th Cir. 2017). See also King v. Terris,
No. 2: 17-CV-10611, 2017 WL 3263446, at *2-4 (E.D. Mich. July 31, 2017).

Therefore

McKoy’s Mathis claim is not cognizable in a § 2241 petition, and his petition must be
denied.
McKoy’s claims under Johnson and Welch fare no better. In Johnson, the Supreme
Court concluded that the residual clause found in 18 U.S.C. § 924(e)(2)(B) was void for
vagueness.

That subsection provided a catch-all definition for various kinds of prior
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offenses which could be used to enhance a sentence as an “armed career criminal” for one
convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). But
McKoy was not convicted under § 922(g) nor was his sentence enhanced pursuant to
§ 924(e)(1). Therefore Johnson does not apply to him. Even if it did, Welch held that
Johnson announced a new rule of constitutional law, and hence is retroactively applicable
to cases on collateral review. Precisely for that reason, inmates wishing to invoke Johnson
as grounds to challenge their federal sentence could and must have done so by requesting
and obtaining permission to file a second or successive motion under § 2255.

See §

2255(h)(2); In re Watkins, 810 F. 3d 375, 377 (6th Cir. 2015). Because McKoy and other
prisoners could have asserted claims based upon Johnson under § 2255, that remedy was
plainly not structurally “inadequate and ineffective” to test the legality of their detention,
and resort to § 2241 is impermissible. Truss v. Davis, 115 F. App’x 772, 773-74 (6th Cir.
2004); McDowell v. Warden, FCC Medium Coleman, 2017 WL 2352000, at *2-3 (11th Cir.
May 31, 2017).
Nor is Hinkle relevant. That case was decided by the Fifth Circuit, not the Supreme
Court, and hence cannot form the basis for relief under § 2241. In addition, pivotal to the
decision in that case was the fact that the Texas drug trafficking statute criminalized not
just the manufacture, sale, or distribution of drugs, but also a mere offer to sell them.
Hinkle, 832 F.3d at 572-73. The provision under which McKoy was convicted, 35 Pa. Stat. §
780-113(a)(30), contains no such language, criminalizing only “the manufacture, delivery, or
possession with intent to manufacture or deliver, a controlled substance ... or knowingly
creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.”
This language closely tracks the definition of a “controlled substance offense” under §
4B1.2(b) as one that “prohibits the manufacture, import, export, distribution, or dispensing
of a controlled substance...” Accordingly the Third Circuit has held, both before and after
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Mathis was decided, that a violation of 35 Pa. Stat. § 780-113(a)(30) qualifies as a valid
predicate offense under the functionally-identical armed career criminal provision found in
18 U.S.C. § 924(e). United States v. Abbott, 748 F.3d 154, 158-160 (3d Cir. 2014); United
States v. Henderson, 841 F. 3d 623, 626-32 (3d Cir. 2016).
For each of these reasons, McKoy’s petition must be denied.
Accordingly, IT IS ORDERED that:
1.

Petitioner McCoy’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 November 20, 2017.

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