United States District Court, N.D. Ohio, Eastern Division
S. GWIN JUDGE.
REPORT AND RECOMMENDATION
A. RUIZ UNITED STATES MAGISTRATE JUDGE.
Lopez has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. The petition is before the
magistrate judge pursuant to Local Rule 72.2. The petitioner
is in the custody of the Federal Correctional Institution
Elkton pursuant to journal entry of sentence in the case of
United States v. Lopez, No. 7:04CR10 (M.D. Ga. Dec.
21, 2004). (R. 1, PageID #: 2.)
petition stems from Lopez's 2004 convictions for
possession with the intent to distribute (1) cocaine and (2)
marijuana, in the Middle District of Georgia, in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), and
841(b)(1)(D), pursuant to a guilty plea. (R. 1, PageID #: 2;
R. 8, PageID #: 32-33.) After his conviction, Lopez was
adjudged to be a Career Offender under United States
Sentencing Guidelines (USSG) §4B1.1, and allegedly was
sentenced to a longer term of incarceration than he otherwise
would have received. (R. 1, PageID #: 2-3, 9.) In his
petition, Lopez challenges his designation as a Career
Offender under the USSG, and raises the following arguments
1. Lopez is authorized to challenge the erroneous career
offender designation under 28 U.S.C. § 2241.
2. Descamps and Mathis both qualify as new
statutory interpretations by the Supreme Court, which are
3. The Florida burglary statute in effect in 1988 does not
qualify as a predicate offense for either ACCA or the
Guidelines Career Offender sentence enhancements.
4. The district court's erroneous application of the
Career Offender sentence enhancement in this case constitutes
a fundamental error that resulted in a miscarriage of
(R. 1, PageID #: 4, 5, 7, 9.) The respondent has filed a
brief in opposition (R. 8), and Lopez has filed a reply (R.
11), with a supplement (R. 12). The respondent argues that
the court has no jurisdiction to review Lopez's claims
“because his Section 2255 arguments are made under the
guise of Section 2241 in an attempt to circumvent the
procedural requirements under Section 2255.” (R. 8,
PageID #: 34.)
brings his petition for a writ of habeas corpus before the
court pursuant to 28 U.S.C. § 2241. (R. 1, PageID #: 1,
4.) Habeas review is generally available under Section 2241
only when an inmate attacks the execution of his sentence,
rather than the validity of a conviction and sentence, which
is properly brought pursuant to §§ 2254 or 2255.
Woody v. Marberry, No. 05-1403, 2006 WL 1083941, at
*3 (6th Cir. Apr. 25, 2006); Burgess v. Merlak, No.
4:17CV1349, 2017 WL 4699493, at *1 (N.D. Ohio Oct. 19, 2017)
(citing Capaldi v. Pontesso, 135 F.3d 1122, 1123
(6th Cir. 1998)).
Sixth Circuit has held that claims alleging “actual
innocence” of a sentencing enhancement cannot be raised
under Section 2241. Jones v. Castillo, No. 10-5376,
2012 WL 2947933, at *1 (6th Cir. July 20, 2012) (citing
Raymer v. Barron, 82 Fed.Appx. 431, 432 (6th Cir.
2003); Kinder v. Purdy, 222 F.3d 209, 212-214 (5th
Cir. 2000); In re Davenport, 147 F.3d 605, 609-610
(7th Cir. 1998)); see also Bannerman v. Snyder, 325
F.3d 722, 724 (6th Cir. 2003). But in Hill v.
Masters, the Sixth Circuit held that a prisoner may
raise a sentence-enhancement claim in a Section 2241 petition
in very limited circumstances. Thompson v. Terris,
No. 17-1837, 2018 WL 3570974, at *2 (6th Cir. May 21, 2018)
(citing Hill v. Masters, 836 F.3d 591, 595 (6th Cir.
2016)); Wright v. Merlak, No. 4:17CV2097, 2017 WL
6805687, at *2 (N.D. Ohio Nov. 14, 2017).
argues that, under the Sixth Circuit's decision in
Hill v. Masters, he has the right to challenge the
sentencing district court's application of the USSG
§4B1.1 Career Offender sentence enhancement. (R. 1,
PageID #: 3, citing Hill, 836 F.3d 591; R. 12,
PageID #: 48 (motion is based on Hill).) In
Hill, the court stated:
. . . our decision addresses only a narrow subset of §
2241 petitions: (1) prisoners who were sentenced under the
mandatory guidelines regime pre-United States v.
Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621
(2005), (2) who are foreclosed from filing a successive
petition under § 2255, and (3) when a subsequent,
retroactive change in statutory interpretation by the Supreme