Summary
finding that because the petitioner failed to demonstrate that his remedy under § 2255 was inadequate or ineffective regarding his Bailey claim, the district court denied the petitioner's § 2241 motion
Summary of this case from Cooper v. QuintanaOpinion
Civil Action No. 05-CV-054-HRW.
April 11, 2005
MEMORANDUM OPINION AND ORDER
Christopher Taylor, an individual currently incarcerated in the Federal Correctional Institution in Ashland, Kentucky, has submitted a pro se petition for writ of habeas corpus and has paid the district court filing fee.
This matter is now before the Court for screening. 28 U.S.C. § 2243; Demjunjukv. Pertovsky, 612 F. Supp. 571 (N.D. Ohio 1985) (citing Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970), cert. denied, 400 U.S. 906 (1970); accord Aubut v. Stare of Maine, 431 F.2d 688, 689 (1st Cir. 1970)).
CLAIMS
The petitioner claims that (1) he is actually innocent of criminal conduct under the holding of Bailey v. United States, 516 U.S. 137 (1995); and (2) this Court should grant him relief because his remedy by a 28 U.S.C. § 2255 motion to the trial court wadis inadequate and ineffective to test the legality of his detention.
ALLEGATIONS OF THE PETITION
The petitioner has submitted a petition form, an attached self-styled petition, a supporting memorandum of law, and two exhibits [Record No. 11. The following is a summary or construction of the allegations contained therein.
The petitioner states that he pled guilty in the United States District Court for the Eastern District of North Carolina, Unitedstates v. Taylor, 93-58-03-CR-5-F) to conspiracy to possess with intent to distribute cocaine base, in violation of 18 U.S.C. § 841(a)(1), and using and carrying a firearm during and in relation to the drug-trafficking offense, in violation of 18 U.S.C. § 924(c)(1). It is the latter offense which he challenges herein. On November 20, 1995, he was sentenced to 85 months' incarceration on the drug-trafficking offense and 60 months for the firearms conviction, to be served consecutively. The petitioner claims that at the plea colloquy he admitted to selling the drugs but not to using any gun found by the police.
Petitioner Taylor alleges that he told his attorney to file an appeal, but his counsel did not do so. One month after his sentencing and after the entry of the criminal judgment, on December 6, 1995, the Supreme Court of the United States issued the Bailey decision, wherein the Court interpreted the "use" prong of 18 U.S.C. § 924(c)(1) narrowly, to require "active employment" of a firearm in order to sustain a conviction for use of a firearm in relation to a drug offense. The petitioner and numerous other prisoners, who had been convicted under a broader understanding of the "use" component for conduct which, after Bailey, was not considered criminal conduct, suddenly had claims of actual innocence.
Two years later, in March of 1998, the petitioner filed a motion to vacate the firearm conviction, pursuant to 28 U.S.C. § 2255, based on Bailey; it was assigned Civil Case No. 5:98-CV-238-F in the trial court. On March 26, 1998, that court denied the motion on the ground that Taylor "waited too long to seek relief under Bailey. The one-year statute of limitations for filing a § 2255 motion has expired." Exhibit [hereinafter "Ex."] A. On August 27, 2004, the petitioner tried again to take advantage of the Bailey holding, by filing a motion to dismiss the § 924(c) charge in the trial court. On February 16, 2005, the trial court again denied relief on the ground that "Bailey was not the law at the time Taylor was sentenced, and the Supreme Court did not make it retroactive to cases that already were final." Ex. B.
One month later, on March 18, 2005, the petitioner filed the instant petition, asking this Court to grant him relief, based upon Bailey, under its § 2241 jurisdiction. He claims that he is actually innocent of criminal conduct under the intervening Bailey holding, and he points to his plea colloquy, which he described as follows:
Petitioner admitted to his involvement with drug distribution and having a gun or knowledge of a gun during drug activities, but never displayed or brandished a gun during a drug transaction. Nor were guns carried in relation to or to facilitate a drug transaction. Petitioner made directs [sic] sales to street level dealers, but he did not supervise them.
Petition at 8. Because he did not use a firearm in relation to a drug-trafficking offense and because his remedy by a § 2255 motion is ineffective and inadequate to bring this claim, the petitioner claims, he is entitled to habeas relief from the firearms conviction and sentence.
The petitioner cites to abundant case law as to his entitlement to relief from the court in the district of incarceration under § 2241. Among the cases upon which he relies, in addition to Bailey, are post- Bailey circuit court cases, including Triestman v. United States, 124 F.3d 261 (2nd Cir. 1997), and In re Davenport, 147 F.3d 605 (7th Cir. 1998); and Supreme Court cases, including Muscarello v. United States, 524 U.S. 125, 126 (1998) and Bousley v. United States, 523 U.S. 614, 620 (1998).
DISCUSSION
The general rule is that 28 U.S.C. § 2255 relates to conviction and imposition of sentence and such issues must be brought before the trial court. A petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 is to be brought in the district where a petitioner is incarcerated and may only challenge execution of sentence, such as the computation of parole or sentence credits. See DeSimone v. Lacy, 805 F.2d 321, 323 (8th Cir. 1986) (per curiam); Cohen v. United States, 593 F.2d 766, 770-71 (6th Cir. 1979). Since the instant petitioner's claim relates to the firearm conviction, it is not ordinarily a cognizable claim for this Court under 28 U.S.C. § 2241.
Nevertheless, it is true that certain language in the fifth paragraph of 28 U.S.C. § 2255 provides that a district court may exercise jurisdiction over § 2255 claims under 28 U.S.C. § 2241. Commonly called the "savings clause" of § 2255, such use of § 2241 is conditioned upon the petitioner's establishing that "the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255; Cohen v. United States, 593 F.2d at 770-71. Because the petitioner herein uses the "inadequate" and "ineffective" language of the statute, the Court construes the pro se petitioner's instant claim to be made under the savings clause.
Use of the savings clause has undergone an upsurge in popularity in recent years. In Bailey v. United States, 516 U.S. 137 (1995), the Supreme Court of the United States interpreted the "use" prong of 18 U.S.C. § 924(c)(1) narrowly, to require "active employment" of a firearm in order to sustain a conviction for use of a firearm in relation to a drug offense. Numerous prisoners who had been convicted under a broader understanding of the "use" component for conduct which, after Bailey, was not considered criminal conduct, suddenly had claims of actual innocence.
Claimants under the Supreme Court's new opinion, however, were often effectively barred from bringing their claims because they had already filed a § 2255 motion, and successive motions had become difficult to obtain because of new federal legislation, effective April 24, 1996. The Antiterrorism and Effective Death Penalty Act ("AEDPA") imposed several statutory restrictions on prisoners' ability to file habeas petitions under 28 U.S.C. §§ 2254 and 2255, including aone-year statute of limitations and the requirement that a prisoner who wishes to raise issues in a second or successive motion must receive pre-authorization from the appropriate circuit court. Also, AEDPA imposed on the circuit court onlytwo circumstances for granting this authorization. See 28 U.S.C. § 2255 (2000).
Since 1996 and up to today, prisoners like the instant petitioner have pled that they meet the "inadequate" or "ineffective" conditions of the savings clause of § 2255, so that they may use § 2241 to bring a successive or untimely § 2255 claim. The Court examines Petitioner Taylor's allegations to see if he meets the threshold test of demonstrating that his remedy under § 2255 is truly inadequate or ineffective under Sixth Circuit precedent interpreting the statutory language, primarily Charles v. Chandler, 180 F.3d 753,757 (6th Cir. 1999) and Martin v. Perez, 319 F.3d 799 (6th Cir. 2003).
In the first of these opinions, the Sixth Circuit emphasized that relief under § 2241 is not a "catch all" remedy, but is extremely limited, available only upon the petitioner's demonstration that his § 2255 remedy is truly "inadequate and ineffective." The Court specified that an earlier unsuccessful § 2255 motion or current time bar will not meet this standard. Id. at 757. Moreover, the burden is on the petitioner to demonstrate inadequacy or ineffectiveness as a threshold matter. Id. at 756. Following the rationale from other circuits, including Triestman v. Unitedstates, 124 F.3d 261 (2nd Cir. 1997), and In re Davenport, 147 F.3d 605 (7th Cir. 1998), the Sixth Circuit found that Petitioner Charles had failed to show either a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court or newly discovered evidence sufficient to establish by clear and convicting evidence that no reasonable fact finder would have returned a guilty verdict. Therefore, the appellate court affirmed the sua sponte dismissal of his § 2241 petition by this Court.
The Sixth Circuit used the same inquiry and reached a contrasting result in the later Martin v. Perez case, also arising from this Court. The appellate first traced the petitioner's unsuccessful efforts to get aclaim basedon Jones v. United States, 529 U.S. 848 (2000), heard via a § 2255 motion to the trial court, including, finally, an application to the appropriate appellate court for permission to bring the claim in a successive § 2255 motion to the trial court, which was denied. At that point, Martin's remedy by § 2255 was truly barred. The Sixth Circuit next examined the claim based on the recent Jones opinion, wherein the Supreme Court held that a conviction under the federal arson statute requires a nexus between the defendant's conduct and interstate commerce.
The Sixth Circuit concluded that if the facts were as Petitioner Martin had stated, "then Martin is correct in his claim that he is factually innocent of violation of the arson statute." Id., 319 F.3d at 804. Therefore, the Court adopted a second pre-requisite for entertaining a § 2241 petition, i.e., actual innocence. The Martin Court found that the petitioner had demonstrated that he had been barred from filing a successive § 2255 motion, thus meeting the "inadequate or ineffective" criteria, and had also presented a claim of "actual innocence" of violating the federal arson statute as the statute is explained under the Supreme Court's Jones decision. Accordingly, the matter was remanded to this Court to hear the merits of Martin's claim about the lack of a nexus, under its § 2241 jurisdiction. Id. at 805.
Consistent therewith, as a threshold matter, this Court follows the same analysis, evaluating whether the instant petitioner has established both of the two requisite pre-conditions so that the Court may use § 2241 to weigh his challenge to his sentence on the merits, that is, whether: (1) he has been barred from filing a § 2255 motion; and (2) he is making a claim of actual innocence based on a later Supreme Court decision which narrowly defines a term of the statute under which he was convicted. Then and only then will this Court be able to address the merits of that claim under 28 U.S.C. § 2241.
As to the first of these requirements, the Court finds that, unlike the petitioners who have claimed actual innocence and have been permitted to use § 2241, either for Bailey claims or for Jones arson claims, the instant petitioner has not demonstrated that his remedy by § 2255 was inadequate or ineffective. As the Sixth Circuit noted in Charles, the Bailey claimants who were permitted to bring their claims of innocence via a § 2241 petition had no way by which to raise their claims earlier. Such is true also of the petitioners in Triestman and Davenport cases, which are relied upon by the petitioner. Similarly, in Martin, the Court noted that the petitioner had been denied his request to bring his Jones claim in successive § 2255 motion.
The instant petitioner, however, had an opportunity to raise his claim in a first § 2255 motion, as soon as Bailey was decided, in December of 1995. Even after April 24, 1996, when the AEDPA became effective and imposed a one-year statute of limitations and other restrictions on § 2255 motions, such a motion was available to the petitioner for one year. Therefore, the instant petitioner had until April 24, 1997, to bring a § 2255 motion. He did not, however. He slept on his rights for almost another year. It was not until March of 1998 that he finally filed a motion pursuant to 28 U.S.C. § 2255 in the trial court. Unsurprisingly, the motion was deemed time-barred.
Thus, the petitioner has not demonstrated the inadequacy or ineffectiveness of his remedy by motion pursuant to 28 U.S.C. § 2255 in the trial court. Habeas corpus via § 2241 is not an additional, alternative, or supplement remedy to the motion to vacate via § 2255. Charles, 180 F.3d at 758. It cannot be a remedy for the sleeping petitioner's failure to effectively use an available § 2255 avenue.
Because the Court has found that the petitioner has not met the threshold requirement of demonstrating the inadequacy or ineffectiveness of § 2255 relief, it is not necessary to reach the second part of the query, i.e., whether he was actually innocent of criminal conduct. Accordingly, the Court makes no findings and offers no opinion on the petitioner's actual innocence claim, including whether his conduct fits the definition of "use" described in Bailey or of "carrying," as defined in another intervening Supreme Court case about § 924(c), Muscarello v. United States, 524 U.S. 125, 127 (1998); see also Hilliard v. United States, 157 F.3d 444, 449 (6th Cir. 1998) ("the proper inquiry is physical transportation" for whether a firearm was carried).
This Court concludes that because the instant petitioner has failed to meet the threshold requirement of demonstrating either that his remedy by § 2255 motion was inadequate or ineffective, the Court may not entertain his claims on the merits under its § 2241 jurisdiction. Therefore, the petition must be denied and dismissed. To do otherwise would be to allow the petitioner to obtain yet another bite at the post-conviction apple. Charles, 180 F.3d at 757.
CONCLUSION
Accordingly, IT IS ORDERED that Petitioner Taylor's petition for writ of habeas corpus is DENIED; the action will be DISMISSED from the docket of the Court; and Judgment shall be entered contemporaneously with this Memorandum Opinion and Order in favor of the respondent.