Futch v. Holland
Filing
14
MEMORANDUM OPINION & ORDER; petition for writ of habeas corpus be denied 2 2) action is dismissed sua sponte with prej 3) judgment will be entered with MO&O in favor of respondent. Signed by Judge Henry R. Wilhoit, Jr on 6/21/11.(SMT)cc: COR, Futch via USMail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND
JOHN RANDALL FUTCH,
Petitioner,
v.
J.C. HOLLAND, Warden,
Respondent.
|
|
|
|
|
|
|
|
|
No. 0:10-CV-0094-HRW
MEMORANDUM OPINION
AND ORDER
***** ***** ***** *****
John Randall Futch (“Futch”), formerly confined in federal custody in the
Federal Correctional Institution located in Ashland, Kentucky (“FCI-Ashland”),1 has
filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. [D. E.
No. 2]. As Futch has paid the $5.00 filing fee, the Court screens his petition pursuant
to 28 U.S.C. § 2243. At the screening phase, the Court must dismiss any petition that
“is frivolous, or obviously lacking in merit, or where . . . the necessary facts can be
determined from the petition itself without need for consideration of a return.” Allen
v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (citations omitted).2
1
Subsequently, Futch was transferred to the Federal Correctional Institution at Talladega,
Alabama (“FCI-Talladega”), where he is presently confined.
2
The Court holds pro se pleadings to less stringent standards than those drafted by
attorneys. Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003); Hahn v. Star Bank, 190 F.3d 708,
715 (6th Cir. 1999). During screening, the Court accepts as true a pro se litigant’s allegations and
liberally construes them in his favor. Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001).
In his § 2241 petition, Futch seeks relief from his conviction claiming that he
is actually innocent of the underlying offenses to which pled guilty. For the reasons
stated below, Futch is not entitled to relief under § 2241; his petition will be denied,
and this action will be dismissed with prejudice.
FEDERAL CONVICTION AND COLLATERAL CHALLENGES
On September 13, 2002, a federal grand jury in the Southern District of Georgia
returned a four-count indictment against Futch and co-defendant Elvert Novell Banks,
charging them with conspiring to commit mail fraud and wire fraud, all in violation
of 18 U.S.C. §§ 371, 1341, and 1343. Prior to trial, Futch negotiated a plea agreement
with the United States, changed his plea, and pled guilty to one count of conspiracy
to commit mail fraud, in violation of 18 U.S.C. § 371 (Count 1) and one count of mail
fraud, in violation of 18 U.S.C. §1341 (Count 4). See United States v. John Randall
Futch, 4:02-CR-00232-JFN (S.D. Ga.) (“the Trial Court”).
Futch was sentenced to a 30-month prison term on each of the two counts to
which he pled guilty, to be served concurrently with each other, but to be served
consecutively to a 240-month sentence imposed in a separate criminal case wherein
he was convicted of a federal drug conspiracy (United States v. John Randall Futch,
4:02-CR-00285-WTM (S.D. Ga.). Counts 2 and 3 of the indictment were dismissed
against Futch at sentencing.
2
Futch appealed, but on March 2, 2004, the Eleventh Circuit affirmed his
conviction. See United States v. Futch, No. 03-12270; 99 F. Appx. 880 (11th Cir.
2004). Thereafter, Futch moved to vacate his sentence pursuant to 28 U.S.C. § 2255,
on the grounds that (1) his trial counsel was ineffective for failing to advise him that
his mail fraud sentence would run consecutively to his drug sentence, (2) he was
unable to enter a plea knowingly and intelligently based on a lack of access to search
warrants, (3) the overbroad search of computer-related evidence violated his Fourth
Amendment rights, and (4) his trial attorneys were ineffective for failing to investigate
potential claims based on Fourth Amendment violations. On December 20, 2004, the
Trial Court denied Futch’s § 2255 motion for various reasons. See United States v.
John Randall Futch, 4:02-CR-00232-JFN, Docket Entry No. 97.3 The Trial Court
denied Futch’s motion for the issuance of a Certificate of Appealability, and the
Eleventh Circuit also denied that request because Futch had failed to make a
3
The Trial Court noted that the issues concerning whether Futch’s plea was entered
knowingly and intelligently and whether the search warrant was overbroad in violation of the
Fourth Amendment were raised on direct appeal and rejected by the Eleventh Circuit because
“once Futch entered his guilty plea, he waived all challenges alleging that the prosecution
unlawfully obtained evidence. Because Futch cannot raise indirectly a challenge that cannot
be raised directly, we reject his argument based on his lack of access to the search warrant.”
See Trial Court’s Order in 4:02-CR-00232-JFN, Doc. 97, page 2. Given the Eleventh
Circuit’s ruling, the Trial Court denied these claims because Futch was precluded under
Davis v. United States, 417 U.S. 333, 342 (1974), from raising these same claims in his §
2255 motion. The Trial Court also found no merit to Futch’s claims of ineffective assistance
of counsel because Futch had not shown that he had been prejudiced by the advice or
assistance of trial counsel. Id.
3
substantial showing of the denial of a constitutional right, as required by 28 U.S.C. §
2253(c)(2).
CLAIMS ASSERTED IN THE § 2241 PETITION
In this action, Futch asserts that he is entitled to relief because he is actually
innocent of the underlying offenses to which pled guilty. His “actual innocence”
claim is based on the fact that the search warrant in his case was sealed while the case
was pending and remained sealed until September 10, 2003, after he pled guilty and
was sentenced. Futch fails to explain how the unsealing of this search warrant
establishes his “actual innocence” of the underlying offense conduct.
DISCUSSION
28 U.S.C. § 2255 Remedy Was Not Inadequate or Ineffective
Futch is not entitled to relief under § 2241, as he fails to assert a legitimate
claim of actual innocence or to show that a retroactively applicable Supreme Court
decision affords him relief.
Section 2255 provides the primary avenue of relief for federal prisoners
claiming the right to release as a result of an unlawful sentence. Terrell v. United
States, 564 F.3d 442, 447 (6th Cir. 2009) (citing 28 U.S.C. § 2255(a)). It is the
mechanism for collaterally challenging errors that occurred “at or prior to sentencing.”
4
Eaves v. United States, No. 4:10-cv-00036, 2010 WL at 3283018 at * 6 (E.D. Tenn.,
August 17, 2010).
The “savings clause” of § 2255 permits relief under § 2241 if § 2255 is
“inadequate or ineffective to test the legality of the detention.” Terrell, 564 F.3d at
447; Witham v. United States, 355 F.3d 501, 505 (6th Cir. 2004)); see 28 U.S.C. §
2255(e). A federal prisoner may not challenge his conviction and sentence under §
2241 “if it appears that the applicant has failed to apply for relief, by [§ 2255] motion,
to the court which sentenced him, or that such court has denied relief.” See 28 U.S.C.
§ 2255(e). He must prove that his § 2255 remedy is inadequate or ineffective to
challenge the legality of his detention. Charles v. Chandler, 180 F.3d 753 (6th Cir.
1999); Martin v. Perez, 319 F.3d 799 (6th Cir. 2003).
A movant can also implicate the savings clause when he alleges “actual
innocence,” Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir. 2003); Paulino v.
United States, 352 F.3d 1056, 1061 (6th Cir. 2003), which requires “factual
innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. at
623-24; Hilliard v. United States, 157 F.3d 444, 450 (6th Cir. 1998); Reyes-Requena
v. United States, 243 F.3d 893, 903-04 (5th Cir. 2001). The movant must show that
“a constitutional violation has probably resulted in the conviction of one who is
actually innocent of the crime.” Murray v. Carrier, 477 U.S. 478, 496 (1986).
5
Futch does not allege that after he was convicted and after the search warrant
was unsealed, new facts or evidence surfaced suggesting that he is actually innocent
of either of the two offenses of which he was convicted. See Bousley, 523 U.S. at 620;
Enigwe v. Bezy, 92 F. App’x 315, 317 (6th Cir. 2004) (“Although this court has not
determined the exact scope of the savings clause, it appears that a prisoner must show
an intervening change in the law that establishes his actual innocence in order to
obtain the benefit of the savings clause.”); Copeland v. Hemingway, 36 F. App’x 793,
795 (6th Cir. 2002) (same). Futch merely alleges that the search warrant in this case
was sealed and remained sealed until after he was convicted. To reiterate, to implicate
the savings clause on the basis of “actual innocence,” Futch is required to show
“factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S.
at 623-24; Hilliard v. United States, 157 F.3d 444, 450 (6th Cir. 1998);
Reyes-Requena v. United States, 243 F.3d 893, 903-04 (5th Cir. 2001). Futch makes
no showing that the unsealing of the search warrant revealed information establishing
his factual innocence.4
4
The lack of an evidentiary hearing vis-a-vis any motion to suppress certainly
does not establish that Futch is factually innocent of the offenses.
6
Procedural bar
Futch seems to acknowledge that at this stage, the claim raised in his § 2241
petition would ordinarily be procedurally barred for two different reasons: (1) it is
time-barred by the AEDPA’s one-year statute of limitations, and (2) it has previously
been litigated. However, he characterizes this claim as a violation of Brady v.
Maryland, 373 U.S. 83 (1963), and argues that a Brady claim, although otherwise
procedurally barred or defaulted, can be raised in a habeas corpus petition if a
defendant is “actually innocent.” On this basis, Futch contends that his §2241 petition
should go forward.
For several reasons, the Court is unpersuaded by Futch’s alleged Brady
violation. First, Futch has not shown that the unsealing of the search warrant revealed
any exculpatory information the prosecution had not previously disclosed to him or
his trial counsel. Absent such showing, there is no Brady violation,5 and without
establishing a Brady violation, Futch’s claim remains procedurally barred.
Second, since the search warrant and affidavit were disclosed to Futch’s counsel
well before his Rule 11 hearing (4:02-cr-232: Doc. 10, Exhibits A & B), and since
5
In denying Futch’s §2255 motion, the Trial Court noted that the prosecution
provided evidence that the search warrant and affidavit were disclosed to Futch’s
counsel well before his Rule 11 hearing (4:02-cr-232: Doc. 10, Exhibits A & B) and
that Futch’s counsel made several motions to suppress evidence which were denied
as moot. (4:02-cr-232: Docs. 23 & 32).
7
Futch’s counsel filed several motions to suppress (that were denied as moot) (4:02-cr232: Docs. 23 & 32), Futch’s claim that his plea was not made knowingly and
intelligently falls on dear ears.
Since Futch has not shown that he is actually innocent of the charges to which
he pled guilty or that a retroactively applicable Supreme Court decision affords him
relief, the savings clause of § 2255 does not apply. Futch’s § 2241 petition will be
denied, and this action will be dismissed.
CONCLUSION
Accordingly, the Court being advised, IT IS ORDERED as follows:
(1)
John Randall Futch’s 28 U.S.C. § 2241 Petition for Writ of Habeas
Corpus, [D.E. No. 2], is DENIED;
(2)
This action is DISMISSED, sua sponte, with prejudice; and
(3)
Judgment will be entered contemporaneously with this Memorandum
Opinion and Order in favor of the Respondent, J.C. Holland, Warden, FCI-Ashland.
This June 21, 2011.
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?