Rush v. Hutchings, No. 6:2017cv00217 - Document 3 (E.D. Ky. 2017)
Court Description: MEMORANDUM OPINION & ORDER: 1. Rush's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [l] is DENIED. 2. This action is DISMISSED and STRICKEN from the Court's docket. 3. A corresponding judgment will be entered this date. Signed by Judge Gregory F. Van Tatenhove on 12/20/2017.(RBB)cc: COR, paper copy forwarded to George S. Rush, III, via US Mail.
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Rush v. Hutchings Doc. 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION LONDON GEORGE S. RUSH, III, Petitioner, V. WILLIAM HUTCHINGS, Warden, Respondent. ) ) ) ) ) ) ) ) ) Civil No. 6:17-217-GFVT MEMORANDUM OPINIO & ORDER *** *** *** *** George S. Rush, III, is an inmate at the Federal Correctional Institution in Manch ster, Kentucky. Proceeding without a lawyer, Rush filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. [R. l .] For the reasons set forth below, the Court will den Rush's petition. In June 2004, Rush pled guilty to three counts of possession with the intent to dist ibute cocaine, in violation of 21 U.S.C. § 841. 1 The United States District Court for the Southe District of Illinois determined that Rush was a career offender pursuant to section 4B 1.1 the United States Sentencing Guidelines because he had at least two prior felony convictions either a crime of violence or a controlled substance offense. As a result, Rush's sentence as enhanced, and his guidelines range was 188 to 235 months in prison. In September 2004, the district court sentenced Rush to 235 months in prison. Shortly thereafter, the United States Supreme Court decided United States v. Book r, 543 U.S. 220 (2005), and thus rendered the sentencing guidelines advisory. In light of that de ision, 1 This procedural history comes from Rush's petition and attached documents at R. I, as well as his under Iyin criminal case of United States v. Rush, No. 4:04-cr-40023 (S.D. Ill. 2004). Dockets.Justia.com •' the United States Court of Appeals for the Seventh Circuit vacated Rush's sentence and remanded his case for resentencing. In October 2005, the district court adopted the sam guidelines calculations and once again sentenced Rush to 235 months in prison. Rush a ealed that decision, but the Seventh Circuit affirmed the sentence. Rush's subsequent efforts t vacate his sentence were unsuccessful. Rush has now filed a§ 2241 petition with this Court. The crux of Rush's argum tis that, in light of Mathis v. United States, 136 S. Ct. 2243 (2016), as well as a number of fl deral circuit court decisions, his prior felony convictions are no longer valid predicate offense to subject him to the career-offender enhancement under the sentencing guidelines. Rush's petition, however, constitutes an impermissible collateral attack on his se tence. That is because although a federal prisoner may challenge the legality of his sentence on irect appeal and through a timely§ 2255 motion, he generally may not do so in a§ 2241 petit n. See United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001) (explaining the distinction a § 2255 motion and a § 2241 petition). After all, a§ 2241 petition is usually only a veh cle for challenges to actions taken by prison officials that affect the manner in which the prison 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). Simply put, cannot use a § 2241 petition as a way of challenging his sentence. Rush nevertheless argues that he can attack his sentence in a § 2241 petition, and he cites Hill v. Masters, 836 F.3d 591, 599 (6th Cir. 2016), to support his position. [R. 1-1at13. It is true that, in Hill, the Sixth Circuit indicated for the first time that a prisoner may challen e his sentence in a § 2241 petition. However, in doing so, the court expressly limited its decis on to the following, very narrow circumstances: 2 (1) prisoners who were sentenced under the mandatory guidelines regime pre United States v. Booker, 543 U.S. 220 ... (2005), (2) who were foreclosed fro filing a successive petition under § 2255, and (3) when a subsequent, retroactiv change in statutory interpretation by the Supreme Court reveals that a previou conviction is not a predicate offense for a career-offender enhancement. Id. at 599-600. Those circumstances do not apply in this case. That is because the trial court rese tenced Rush in October 2005, after the Supreme Court decided Booker. Rush has also failed to i entify a subsequent, retroactive change in statutory interpretation by the Supreme Court that rev als that one of his previous convictions is not a predicate offense for purposes of the career-a fender enhancement. While Rush cites Mathis, the Sixth Circuit recently explained in a publish decision that "Mathis was dictated by prior precedent (indeed two decades worth)," and, t did not announce a new rule, let alone a retroactive one. Jn re Conzelmann, No. 17-3270, 017 WL 4159184, *1 (6th Cir. September 20, 2017). Rush's reliance on Mathis is therefore unavailing. Accordingly, IT IS ORDERED that: 1. Rush's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [ . l] is DENIED. 2. This action is DISMISSED and STRICKEN from the Court's docket. 3. A corresponding judgment will be entered this date. 3 This the of December, 2017. Grcf.l;">l"Y f ·an Tiltcnli... ..,,.·c l.-rnted SI ates Distri·:::I Juct?,e 4
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