MATTHEW F. LEITMAN, District Judge.
Petitioner Terry Joshua Strauss is a federal prisoner incarcerated at the Federal Correctional Institution in Milan, Michigan ("FCI Milan"). On September 7, 2018, Strauss filed a petition for a writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2241 ("Section 2241"). (See Pet., ECF No. 1.) Strauss argues that the district court incorrectly calculated his sentencing guidelines. (See id.) Respondent filed a motion to dismiss the petition on the ground that Strauss waived his right to challenge his sentence as part of a plea agreement. (See Mot., ECF No. 6.) The Court agrees. Therefore, the Court
In 2008, a grand jury in this district indicted Strauss and his co-defendant, Michael Sloan Muller, on three counts of armed bank robbery, in violation of 18 U.S.C. § 2113(a) & (d), and three counts of using, carrying, and brandishing a firearm during the commission of a crime of violence, in violation of 18 U.S.C. § 924(c). (See Indictment, United States v. Strauss, E.D. Mich. Case No. 08-cr-20009, ECF No. 10.) On December 17, 2018, pursuant to a Rule 11 Plea Agreement, Strauss pleaded guilty to one count of armed bank robbery and one count of using, carrying, and brandishing a firearm during the commission of a crime of violence, and the remaining charges were dismissed. In that plea agreement, Strauss waived his right to challenge both his conviction and his sentence in any post-conviction proceeding:
(Rule 11 Plea Agreement, E.D. Mich. Case No. 08-cr-20009, ECF No. 41, PageID.152; first emphasis in original; second and third emphasis added).
Also on December 17, 2018, Muller pleaded guilty pursuant to a Rule 11 Plea Agreement. Muller's plea agreement contained the same provision (quoted immediately above) concerning his waiver of his right to contest his sentence in "any post-conviction proceeding including — but not limited to — any proceeding under 28 U.S.C. § 2255." (Rule 11 Plea Agreement, E.D. Mich. Case No. 08-cr-20009, ECF No. 40, PageID.134.)
On January 28, 2009, a Judge of this Court sentenced Strauss to 108 months' imprisonment for bank robbery and a consecutive term of 60 months' imprisonment for using, carrying, and brandishing a firearm. (See Judgment, E.D. Mich. Case No. 08-cr-20009, ECF No. 43.) The same Judge imposed the same sentence on Muller. (See Judgment, E.D. Mich. Case No. 08-cr-20009, ECF No. 42.)
Muller's next moves are relevant to the issues Strauss raises in the petition now before the Court. In September 2012, Muller filed a petition for a writ of habeas corpus under Section 2241 in the Middle District of Pennsylvania.
Muller v. Sauers, 2012 WL 12895897, at *2 (M.D. Pa. Nov. 29, 2012; emphasis in original).
Muller appealed, and the United States Court of Appeals for the Third Circuit affirmed. See Muller v. Sauers, 523 F. App'x 110 (3d Cir. 2013). Like the district court, the Third Circuit concluded, among other things, that the waiver provision of Muller's plea agreement "foreclose[d] relief" under Section 2241. Id. at 112-13. The Third Circuit also saw "no indication that the waiver should not be enforced." Id. at 112 n. 1.
Three years after the Third Circuit affirmed the dismissal of Muller's Section 2241 petition, Strauss filed a "Motion Pursuant to § 2255(f)(3) in Light of
Strauss sought to appeal the dismissal of his motion, and the Sixth Circuit declined to grant a certificate of appealability. See Strauss v. United States, 2017 WL 6886067 (6th Cir. May 22, 2017). The Sixth Circuit concluded that an appeal was not warranted because "Strauss waived the right to collaterally attack his sentence in his plea agreement," and thus "reasonable jurists would not debate" the decision to dismiss the claims that he presented in his motion. Id. at *1.
Two years after losing in the Sixth Circuit, Strauss filed his Section 2241 petition in this action. Strauss now contests his sentence. He claims that it is invalid as a result of a sentencing guidelines calculation error — specifically, the purported failure of the sentencing judge to apply U.S.S.G. Amendment 599. (See Pet., ECF No. 1, PageID.4.)
On January 22, 2019, Respondent moved to dismiss the petition on the basis that the waiver in Strauss's plea agreement precludes him from challenging his sentence under Section 2241. (See Mot., ECF No. 6.)
On May 1, 2019, Strauss filed a "Traverse" in response to the motion to dismiss. (See Traverse, ECF No. 8.) In that filing, Strauss contends that the waiver in his plea agreement does not bar his claim for relief here because the waiver covers only challenges to his "sentence[ ]," and he is now challenging the legality of his continued unlawful "detention." (Id., PageID.26.)
After reviewing the motion to dismiss and Strauss's Traverse, the Court ordered Respondent to file a supplemental brief concerning the impact of the waiver in Strauss's plea agreement, and the Court offered Strauss the opportunity to file a reply. (See Order, ECF No. 9.) Respondent filed his supplemental brief on July 10, 2019. (See Respondent's Supp. Br., ECF No. 10.) Strauss did not file a reply.
Strauss may not contest his sentence in the Section 2241 petition now before the Court because, in the words of the Sixth Circuit, he "waived the right to collaterally attack his sentence in his plea agreement." Strauss, 2017 WL 6886067, at *1. Indeed, this Court agrees with the Pennsylvania district court and the Third Circuit decisions (in co-defendant Muller's proceedings) that the waiver language in in the plea agreement here bars a sentencing guidelines-based attack on a sentence in a Section 2241 petition.
The waiver provision of Strauss's plea agreement is broad and unequivocal: it waives Strauss's right to "contest his ... sentence in any post-conviction proceedings, including — but not limited to — any proceeding under 28 U.S.C. §2255." (Rule 11 Plea Agreement, E.D. Mich. Case No. 08-cr-20009, ECF No. 41, PageID.152; emphasis added.) Like the Third Circuit in Muller's case, this Court concludes that the broad waiver "forecloses" Strauss from seeking "relief" from his sentence under Section 2241. Muller, 523 F. App'x at 112-13.
Strauss's only response is that the waiver does not apply because he is challenging the legality of his continued "detention" rather than challenging the legality of his "sentence." (Traverse, ECF No. 8, PageID.26.) That is a distinction without a difference. It is, of course, Strauss's sentence that is responsible for his continued detention. Thus, Strauss's purported challenge to his detention is actually a challenge to his sentence — one that he expressly waived. And, like the other Judge of this Court who dismissed Strauss's prior motion under 28 U.S.C. § 2255 ("Section 2255"), this Court sees no reason not to enforce Strauss's waiver.
Strauss's plea agreement forecloses any collateral attack on his sentence. Therefore, the Court