United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER SUMMARILY DENYING PETITION FOR A
WRIT OF HABEAS CORPUS AND DENYING LEAVE TO APPEAL IN FORMA
V. PARKER U.S. DISTRICT JUDGE
prisoner Marcel Cook (“Petitioner”), confined at
the Federal Correctional Institution in Milan, Michigan,
filed this pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. In 2012, in the United
States District Court for the Northern District of Illinois,
Petitioner pled guilty to possessing with intent to
distribute crack cocaine in violation of 21 U.S.C. §
841(a)(1). He was sentenced to a term of imprisonment of 168
months. See U.S. v. Cook, 500 F. App'x. 537 (7th
Cir. 2013). In his pending application, Petitioner argues
that he was erroneously sentenced as a career offender in
violation of Mathis v. United States, 136
S.Ct. 2243 (2016). For the reasons set forth below, the Court
is summarily denying the petition and leave to appeal in
was appointed appellate counsel following his conviction.
Rather than pursue an appeal, appellate counsel filed a
motion to withdraw in the Seventh Circuit, asserting that
there were no viable appellate issues. Among the potential
issues considered by appellate counsel was a claim that the
Petitioner was erroneously sentenced as a career offender.
The Seventh Circuit agreed that the claim was frivolous:
Counsel also considers challenging Cook's classification
as a career offender but correctly concludes that any
argument would be frivolous. Cook did not object to the
accuracy of the extensive criminal history detailed in his
presentence report, which includes his felony convictions in
2005 for a drug conspiracy and in 1998 for possession of a
controlled substance with intent to deliver. Both are
controlled-substance offenses punishable by more than one
year in prison, thus making Cook a career offender. See
U.S.S.G. §§ 4B1.1(a), 4B1.2(b); United States
v. Black, 636 F.3d 893, 898 (7th Cir. 2011); United
States v. Thigpen, 456 F.3d 766, 770 (7th Cir. 2006).
Cook, 500 F. App'x. at 538.
on May 7, 2014, Petitioner filed a motion under 28 U.S.C.
§ 2255 in the District Court for the Northern District
of Illinois. The court summarily denied the motion on May 23,
2014. See United States v. Cook, No. 14-C-3396 (N.D.
Ill. May 23, 2014).
himself unable to raise his Mathis claim in a
successive § 2255 proceeding, see Dawkins v. United
States, 829 F.3d 549, 551 (7th Cir. 2016), Petitioner
filed the instant action pursuant to § 2241 via the
“savings clause” of § 2255(e).
primary mechanism for challenging the legality of a federal
sentence is a motion to vacate, set aside, or correct the
sentence under § 2255. United States v.
Peterman, 249 F.3d 458, 461 (6th Cir. 2001). The Court
of Appeals for the Sixth Circuit affirmed this principle in
Hill v. Masters, 836 F.3d 591 (6th Cir. 2016), where
it explained that “[a] challenge to the validity of a
federal conviction or sentence is generally brought as a
habeas corpus petition pursuant to § 2255, while a
petition concerning the manner or execution of a sentence is
appropriate under § 2241.” Id. at 594.
is challenging the length of his federal sentence, as opposed
to the execution or manner in which he is serving his
sentence. Therefore, he may proceed under § 2241 only if
the remedy under § 2255 “is inadequate or
ineffective to test the legality of his detention, ” 28
U.S.C. § 2255(e), or some other exception applies to the
rule barring the use of § 2241 to challenge a federal
sentence. “‘The circumstances in which §
2255 is inadequate and ineffective are narrow.'”
Hill, 836 F.3d at 594 (quoting Peterman,
249 F.3d at 461). “Section 2255 is not inadequate or
ineffective simply because § 2255 relief has been denied
before, the petitioner is procedurally barred from pursuing
relief under § 2255, or the petitioner has been denied
permission to file a second or successive § 2255
petition.” Harris v. Saad, Nos. 18-5031,
18-5468, 2018 U.S. App. LEXIS 27695, *4 (6th Cir. Sept. 27,
2018) (citing Wooten v. Cauley, 677 F.3d 303, 307
(6th Cir. 2012)).
Hill, the Sixth Circuit held that federal prisoners
may invoke the savings clause to challenge the misapplication
of a sentence enhancement. See Hill, 836 F.3d at
598-99. The Sixth Circuit limited its decision, however, to a
“narrow subset” of petitions under § 2241.
Id. at 599. The prisoner must show that: (1) he or
she was “sentenced under the mandatory guidelines
regime pre-United States v. Booker, 543 U.S. 220
(2005);” (2) he or she is “foreclosed from filing
a successive petition under § 2255;” and (3)
“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.
arguably satisfies the second and third conditions set forth
in Hill. It appears that he is foreclosed from
filing another motion under § 2255 and that
Mathis provides a cognizable claim for § 2241
petitions. See Harris, 2018 U.S. App. LEXIS 27695.
Petitioner was sentenced in 2012, however, which was after
the Supreme Court issued its decision in Booker.
Thus, Petitioner has not satisfied the first Hill
factor for using § 2241 to challenge his federal
sentence. As Petitioner has not satisfied the three
conditions set forth in Hill, he may not maintain
this action under § 2241.