Opinion
Civil Action No. 6: 12-219-DCR
11-07-2012
RICKY DENTON, Petitioner, v. UNITED STATES ATTORNEY GENERAL, et al., Respondents.
MEMORANDUM ORDER
Pro Se Petitioner Ricky Denton is currently confined at the United States Penitentiary - McCreary in Pine Knot, Kentucky. Denton has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, together with a motion for leave to proceed in forma pauperis. [Record Nos. 1, 2] In his Petition, Denton asserts that he has filed a motion for a new trial in the Alabama district court where he was convicted based upon newly-discovered evidence; namely, that the prosecution intimidated witnesses to testify falsely against him. [Record No. 1, p. 4] Although he argues that he is being refused access to the court system, he also indicates that his case is currently pending on direct appeal. [Id., p. 2]
On February 17, 2012, Denton was sentenced to a total term of incarceration of 246 months following his conviction for armed bank robbery and brandishing a firearm during a crime of violence. See United States v. Denton, No. 3:11-CR-054-SLB-JEO (N.D. Ala. 2011). This sentence was ordered to run consecutive to the 70-month term of incarceration imposed on January 25, 2012, following a conviction for conspiracy to commit mail fraud. See United States v. Denton, No. 3:11-CR-098-IPJ-JEO-1 (N.D. Ala. 2011). Both cases are currently on direct appeal before the United States Court of Appeals for the Eleventh Circuit. See United States v. Denton, No. 11-14663-FF (11th Cir. 2011), and United States v. Denton, No. 11-10619-FF (11th Cir. 2011).
Because 28 U.S.C. § 2255 provides the correct mechanism for a federal prisoner to challenge his conviction or sentence, the Court will deny Denton's § 2241 motion. See Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999). The Court notes that a habeas petition filed under 28 U.S.C. § 2241 may only be used to challenge a federal conviction under very narrow circumstances and only if § 2255 provides a remedy that is inadequate or ineffective. Martin v. Perez, 319 F.3d 799, 803-04 (6th Cir. 2003). Here, Denton's convictions are being challenged on direct appeal, making even a motion for relief under § 2255 premature. Smith v. United States, 89 F.3d 835 (6th Cir. 1996) (unpublished) (noting that the "well established general rule is that, absent extraordinary circumstances, the district court should not consider § 2255 motions while a direct appeal is pending.") (quoting United States v. Robinson, 8 F.3d 398, 405 (7th Cir. 1993)).
In summary, Denton must complete the appellate process before seeking relief via § 2255, a step he must take before he may make even a colorable argument for the availability of a remedy under § 2241. Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999); White v. Grondolsky, No. 6: 06-309-DCR, 2006 WL 2385358, at *3 (E.D. Ky. Aug. 17, 2006). Accordingly, it is hereby
ORDERED as follows:
1) Petitioner Ricky Denton's Petitioner for a Writ of Habeas Corpus [Record No. 1] is DENIED.
2) Petitioner Ricky Denton's motion to proceed in forma pauperis [Record No. 2] is DENIED as moot.
Signed By:
Danny C. Reeves
United States District Judge