Conner v. Outlaw

Filing 12

MEMORANDUM AND ORDER denying the Petition for Writ of Habeas Corpus and dismissing this case without prejudice. Signed by Magistrate Judge J. Thomas Ray on 8/10/12. (hph)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
HELENA DIVISION
RICCO CONNER
Reg. #20470-076

PETITIONER

V.

NO. 2:12CV00049-JTR

T.C. OUTLAW, Warden,
FCI-Forrest City

RESPONDENT

MEMORANDUM AND ORDER
Pending before the Court is a 28 U.S.C. § 2241 Petition for a Writ of Habeas
Corpus filed by Ricco Conner, an inmate who is currently incarcerated in the Federal
Correctional Institution in Forrest City, Arkansas. (Docket entry #1.) Respondent has
filed a Response, and Petitioner has filed a Reply. (Docket entries #6 and #11.) Thus,
the issues are joined and ready for disposition.

I. Background
In April 2006, Petitioner pleaded guilty in the Western District of Tennessee to
possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841, and to
possession of a firearm after having been convicted of a felony, in violation of 18
U.S.C. § 922(g). In June 2007, the trial court sentenced him to 188 months of
imprisonment on each conviction, to run concurrently. United States v. Conner, W.D.

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Tenn. No. 1:05-cr-10070-JDT (Resp’t Ex. 1, at #21-#23, #75-#78 [docket entry #61]).1 As part of his plea agreement, Petitioner waived his right to a direct appeal.
On March 17, 2008, Petitioner filed a 28 U.S.C. § 2255 motion to vacate, set
aside or correct his sentence, arguing that: (1) his attorneys provided ineffective
assistance which rendered his guilty plea invalid; (2) his indictment was defective due
to lack of jurisdiction; and (3) the court abused its discretion by commenting on his
mental capacity and by giving conflicting advice to him about his retained attorneys.
Conner v. United States, W.D. Tenn. No. 1:08-cv-1059-JDT-egb.
On March 10, 2009, while his § 2255 motion was still pending in the trial court,
Petitioner filed a motion for reduction of sentence under 18 U.S.C. § 3582(c). He
argued that his sentence should be reduced based on an amendment to the United
States Sentencing Guidelines which lowered base offense levels for crack cocaine
offenses. The trial court denied the motion. (Resp’t Ex. 1, at #80, #82.) On February
8, 2010, the Sixth Circuit Court of Appeals affirmed the trial court’s decision. United
States v. Conner, No. 09-5503 (6th Cir. Feb. 8, 2010).
On January 26, 2011, the trial court denied Petitioner’s § 2255 motion on the
ground it was without merit, and simultaneously denied a certificate of appealability.
1

This is the docket sheet from Petitioner’s criminal case in the United States
District Court for the Western District of Tennessee. The Court has electronically
accessed specific docket entries, as well as the docket sheets from Petitioner’s cases in the
Sixth Circuit Court of Appeals.

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Conner v. United States, No. 1:08-cv-1059-JDT-egb (W.D. Tenn. Jan. 26, 2011)
(Resp’t Ex. 2 [docket entry #6-2]). Petitioner’s appeal was dismissed by the Sixth
Circuit for lack of prosecution. Conner v. United States, No. 11-5271 (6th Cir. June
15, 2011).
On March 20, 2012, Petitioner initiated this § 2241 habeas action. In his
Petition and Brief in Support, he argues that his convictions should be vacated
because: (1) the criminal statutes under which he was convicted, 21 U.S.C. § 841(a)(1)
and § 841(b), violate the Due Process Clause; (2) United States Sentencing Guideline
§ 2D1.1, as applied to offenses involving cocaine base, violates the Due Process
Clause; (3) the United States has discriminated against African-American defendants,
who have been convicted of offenses involving the possession and distribution of
cocaine base, by sentencing them pursuant to U.S.S.G. § 2D1.1; and (4) the career
offender guideline cannot be applied to an offense charging a violation of 21 U.S.C.
§ 841(a)(1). (Docket entries #1, #2.)

II. Discussion
A challenge to the validity of a federal conviction and sentence generally must
be made in the sentencing court through a 28 U.S.C. § 2255 motion to vacate, set
aside or correct. Lopez-Lopez v. Sanders, 590 F.3d 905, 907 (8th Cir. 2010); see 28
U.S.C. § 2255(a) (a federal prisoner “may move the court which imposed the
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sentence” to vacate, set aside or correct the sentence). Because a § 2255 motion
attacks the validity of the conviction or sentence, it is “a further step in the movant’s
criminal case,” and subject matter jurisdiction lies with the court which convicted and
sentenced him. DeSimone v. Lacy, 805 F.2d 321, 323 (8th Cir. 1986); Thompson v.
Smith, 719 F.2d 938, 940 (8th Cir. 1983). In contrast, a § 2241 habeas corpus petition
normally is limited to challenging the execution of a sentence, or the manner in which
it is being carried out, and must be initiated in the judicial district where the prisoner
is incarcerated. Nichols v. Symmes, 553 F.3d 647, 649 (8th Cir. 2009); DeSimone, 805
F.2d at 323.
A federal court in the district of incarceration may only entertain a § 2241
habeas petition challenging the validity of a conviction or sentence if “it also appears
that the remedy by [§ 2255] motion [to the sentencing court] is inadequate or
ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e) (emphasis added).
A petitioner has the burden of demonstrating the inadequacy or ineffectiveness of
seeking § 2255 relief from the sentencing court. Lopez-Lopez, 590 F.3d at 907. The
Eighth Circuit Court of Appeals has made it clear that the “inadequate or ineffective
remedy” exception is a “narrowly-circumscribed ‘safety valve.’” United States ex rel.
Perez v. Warden, FMC Rochester, 286 F.3d 1059, 1061-62 (8th Cir. 2002).
The fact that an individual may be barred from filing a § 2255 motion due to

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procedural barriers does not render the remedy inadequate or ineffective so as to
permit utilization of § 2241. Lopez-Lopez, 590 F.3d at 907. Specifically, the § 2255
remedy is not inadequate or ineffective merely because the claim already has been
raised and rejected in a § 2255 proceeding, or because a § 2255 motion would be
barred as untimely or successive. Abdullah v. Hedrick, 392 F.3d 957, 959 (8th Cir.
2004); see § 2255(f) (federal defendant generally has one year from "the date on
which [his] judgment of conviction becomes final" to file a § 2255 motion); § 2255(h)
(successive § 2255 motion “must be certified ... by a panel of the appropriate court of
appeals” to contain “newly discovered evidence” or a “new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable”).
Moreover, a § 2241 petition in the district of incarceration cannot be used to
raise an issue which could have been or actually was raised in a direct appeal or a
timely § 2255 motion in the sentencing district. Nichols, 553 F.3d at 650; Hill v.
Morrison, 349 F.3d 1089, 1092 (8th Cir. 2003); United States v. Lurie, 207 F.3d 1075,
1077-78 (8th Cir. 2000).
While Petitioner currently is incarcerated in this judicial district, the claims that
he is raising in this § 2241 action challenge the validity of the convictions and
sentences imposed by the United States District Court in the Western District of

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Tennessee. As previously explained, as part of his plea agreement, Petitioner waived
his right to a direct appeal. Later, in his § 2255 motion and his motion to reduce
sentence, which he filed with the sentencing court, Petitioner failed to raise any of the
claims that he is now asserting to collaterally attack the validity of his convictions and
sentences.2
“[T]he Due Process Clause of our Constitution does not require that a petitioner
have more than one unobstructed procedural opportunity to challenge his conviction.
‘That does not mean he took the shot, or even that he or his attorney recognized the
shot was there for the taking. All the Constitution requires, if it requires that much,
is that the procedural opportunity have [sic] existed.’” Abdullah, 392 F.3d at 963
(quoting Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999)). Petitioner
unquestionably had procedural opportunities to present his current arguments in a §
2255 motion or a motion to reduce sentence filed with the trial court; however, he
failed to do so. See id. (petitioner’s “failure to seize that opportunity does not render
§ 2255 inadequate or ineffective to test the legality of his conviction”); Hill, 349 F.3d
at 1092 (§ 2255 not inadequate where petitioner had “at least two opportunities to
raise [his] argument before the sentencing district”); Lurie, 207 F.3d at 1077-78 (§

2

To date, Petitioner has failed to obtain the required authorization from the Sixth
Circuit Court of Appeals to bring these claims in a successive § 2255 motion.

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2255 not inadequate because all claims asserted could have been maintained in a
timely § 2255 motion or on direct appeal).
Finally, Petitioner has failed to make any arguments demonstrating how his
available § 2255 remedies in the sentencing district were inadequate and ineffective.
Accordingly, this Court lacks subject matter jurisdiction over this § 2241 habeas
action, and it must be dismissed. See Hill, 349 F.3d at 1091-93; DeSimone, 805 F.2d
at 323-24.

III. Conclusion
IT IS THEREFORE ORDERED THAT this 28 U.S.C. § 2241 Petition for Writ
of Habeas Corpus (docket entry #1) is DENIED, and the case is dismissed, without
prejudice.
DATED this 10th day of August, 2012.

____________________________________
UNITED STATES MAGISTRATE JUDGE

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