Fagan (ID 36312) v. Conover

Filing 3

ORDER ENTERED: The petition is construed as seeking habeas corpus relief under 28 U.S.C. 2241 and is dismissed without prejudice. Signed by Senior District Judge Sam A. Crow on 5/17/2013. (Mailed to pro se party Michael R. Fagan by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MICHAEL R. FAGAN,
Petitioner,
v.

CASE NO. 13-3061-SAC

EMMALEE CONOVER, et al.,
Respondents.

O R D E R
This matter comes before the court on a petition for federal
habeas corpus relief under 28 U.S.C. § 2254, filed pro se by a prisoner
incarcerated in a Kansas Department of Corrections (KDOC) facility.
Petitioner asserts four grounds concerning the execution of his
state sentence.

He acknowledges that this is his second petition

filed in federal court to advance similar claims, thus the petition
is subject to being dismissed as an abuse of the writ.

See Gonzalez

v. Crosby, 545 U.S. 524, 530 (2005); 28 U.S.C. § 2244(b)(1).
Petitioner further acknowledges that federal habeas relief may be
barred by petitioner’s procedural default in presenting his claims
to the state courts.

See Coleman v. Thompson, 501 U.S. 722, 735 n.1

(1991).
The court first observes that petitioner’s challenge to the
execution of his sentence is appropriate under 28 U.S.C. § 2241, not
§ 2254 as filed.

See Overturf v. Massie, 385 F.3d 1276, 1278 (10th

Cir.2004)(§ 2241 permits a prisoner to attack the execution of his
sentence as it affects the fact or duration his confinement).

If

construed as a § 2241 petition, the gatekeeping provision imposed by

the Antiterrorism and Effective Death Penalty Act requiring a circuit
court’s prior authorization to pursue a second or successive § 2254
petition, 28 U.S.C. § 2244(b)(3), does not apply.

See Stanko v.

Davis, 617 F.3d 1262, 1269 n.5 (10th Cir.2010)(“requirement for prior
circuit authorization contained in § 2244(b)(3) does not apply to
habeas petitions brought under § 2241”).
It is well established, however, that to obtain review of a claim
barred by abuse of the writ doctrine or procedural default, the
petitioner “must establish cause for his failure to raise the claim
in an earlier proceeding and resulting prejudice, or, in the absence
of cause, the petitioner must show that a fundamental miscarriage of
justice would result from a failure to entertain the claim.”
1271 (citation and internal quotation marks omitted).

Id. at

See Coleman

501 U.S. at 750 (stating “cause and prejudice” and “fundamental
miscarriage of justice” exceptions to procedural default doctrine).
To avoid dismissal of the petition as abusive or as procedurally
barred, petitioner attempts to satisfy the “fundamental miscarriage
of justice” exception.

He contends the court can consider his

sentencing claims because he is “actually innocent of the excessive
sentences that are imposed on him by KDOC prison officials.”
1.)

(Doc.

This contention clearly lacks merit because a defendant “cannot

be actually innocent” of a noncapital sentence.”

Reid v. Oklahoma,

101 F.3d 628, 630 (10th Cir.1996).
The court thus concludes the petition should be dismissed without
prejudice because federal review of the § 2241 petition is barred by
abuse of the writ and procedural default doctrines.
IT IS THEREFORE ORDERED that the petition is construed as seeking
habeas corpus relief under 28 U.S.C. § 2241, and is dismissed without

prejudice.
IT IS SO ORDERED.
DATED:

This 17th day of May 2013 at Topeka, Kansas.

s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge