Oxendine v. Sepanek

Filing 5

MEMORANDUM OPINION & ORDER: 1. John Millard Oxendine's 28 USC 2241 petition for a writ of habeas corpus DE# 1 is DENIED. 2. Oxendine's motion seeking the appointment of counsel DE# 4 is OVERRULED as MOOT. 3. The Court will enter an appropriate judgment; and 4. This habeas proceeding is DISMISSED and STRICKEN from the Court's docket. Signed by Judge Henry R. Wilhoit, Jr on 11/25/13.(KSS)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND

JOHN MILLARD OXENDINE,
Petitioner,
v.
MICHAEL SEPANEK, WARDEN,
Respondent.

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Civil Action No. 13-150-HRW

MEMORANDUM OPINION
AND ORDER

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James Millard Oxendine is an inmate confined in the Federal Correctional
Institution located in Ashland, Kentucky. Oxendine has filed a pro se petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his federal firearm
conviction. [D. E. No.1] Oxendine has paid the $5.00 filing fee. [D. E. No.3]
The Court conducts an initial review of habeas corpus petitions. 28 U.S.C.

§ 2243; Alexander v. Northern Bureau ofPrisons, 419 F. App'x 544,545 (6th Cir.
2011). The Court must deny the petition "if it plainly appears from the petition and
any attached exhibits that the petitioner is not entitled to relief." Rule 4 ofthe Rules
Governing § 2254 Cases in the United States District Courts (applicable to § 2241
petitions under Rule 1(b». The Court evaluates Oxendine's petition under a more

lenient standard because he is not represented by an attorney, Erickson v. Pardus, 551
U.S. 89,94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003), accepts his
factual allegations as true, and construes his legal claims in his favor. Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
Having reviewed the petition, the Court must deny it because Oxendine can not
pursue his claims under 28 U.S.C. § 2241. The Court will also deny as moot
Oxendine's motion seeking the appointment of counsel [D. E. No.4].
CRIMINAL CONVICTION AND APPEAL
In September 2004, a federal jury in North Carolina convicted Oxendine of
being a felon in possession ofa firearm, in violation of 18 U.S.C. § 922(g)(1). United

States v. Oxendine, No.1 :04-CR-258-JAB-l (M.D.N.C. 2004). Oxendine objected
under Blakely v. Washington, 542 U.S. 296 (2004), to the pre-sentence investigation
report's conclusion that under § 4B1.4(b)(3)(B) of the United States Sentencing
Guidelines ("USSG"), he qualified as an armed career criminal. The district court,
however, overruled Oxendine's objection, adopted the pre-sentence investigation
report, and sentenced him to a 235-month prison term.
Oxendine appealed, arguing among other things that under Blakely and United

States v. Booker, 543 U.S. 220 (2005), his offense level should have been 14 instead
of33 because the jury did not find that he had the requisite prior felony convictions
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for armed career criminal status. The Fourth Circuit rejected Oxendine's arguments,
noting that because Oxendine did not contest any facts about his prior convictions
identified as predicate felonies, " ... the district court did not consider any facts
Oxendine did not admit, and the court's determination ofarmed career criminal status
did not violate the Sixth Amendment." Oxendine, 150 F. App'x at 242. Oxendine
requested, but was denied, a petition for writ of certiorari. Oxendine v. United States,
546 U.S. 1122 (Jan. 9,2006), reh'gdenied, 546 U.S. 1212 (Feb. 21, 2006).
Oxendine does not allege that he filed a motion in the district court to set aside
his sentence under 28 U.S.C. § 2255. A search of the federal court system's online
PACER database indicates that Oxendine did not file a § 2255 motion.

CLAIMS ASSERTED IN § 2241 PETITION
In the instant § 2241 petition, Oxendine argues that the his sentence is
unconstitutional because the district court in North Carolina, rather than the jury,
determined that he had been convicted of the prior offenses which formed the basis
ofhis enhanced sentence under USSG § 4B l.4(b)(3)(B). Oxendine contends that his
235-month sentence violates both his Fifth Amendment right to due process of law,
and his Sixth Amendment right to have a jury determine all ofthe factual predicates

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of the charged offense, including any facts which pertain to an increased sentence. I
In support of his argument, Oxendine relies on a recent decision ofthe United States
Supreme Court: Alleyne v. United States, 133 S. Ct. 2151 (2013), which held that
"[a]ny fact that, by law, increases the penalty for a crime is an 'element' that must be
submitted to the jury and found beyond a reasonable doubt." Id. at 2155.

DISCUSSION
Oxendine is not challenging the execution of his sentence, such as the
computation ofsentence credits or parole eligibility, issues which fall under the ambit
of § 2241. United States v. Jalili, 925 F.2d 889, 894 (6th Cir. 1999). Instead,
Oxendine challenges the constitutionality of his underlying federal conviction and
sentence on Fifth and Sixth Amendment grounds. But § 2241 is not the mechanism
for asserting such a challenge: 28 U.S.C. § 2255(a) provides the primary avenue of
relief for federal prisoners seeking relief from an unlawful conviction or sentence,

Terrell v. United States, 564 F.3d 442, 447 (6th Cir. 2009), and is the mechanism for
collaterally challenging errors that occurred "at or prior to sentencing." Eaves v.

United States, 4:10-CV-36, 2010 WL 3283018, at *6 (E.D. Tenn. Aug. 17,2010).

Oxendine further alleges that his conviction and sentence violate the 7t \ 8t h, 13 th and 14th
Amendments of the U.S. Constitution. [D. E. No 1-1, pp. 3 and 5]
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Section 225 5(e) provides a narrow exception to this rule, and permits a prisoner
to challenge the legality of his conviction through a § 2241 petition, where his
remedy under Section 2255 "is inadequate or ineffective" to test the legality of his
detention. The only circumstance in which a petitioner may use this provision is
where, after his conviction has become final, the Supreme Court re-interprets the
terms of the statute the petitioner was convicted of violating in such a way that his
actions did not violate the statute. Martin v. Perez, 319 F.3d 799,804 (6th Cir. 2003).

See Barnes v. United States, 102 F. App'x 441,443 (6th Cir. 2004) ("A prisoner who
can show that an intervening change in the law establishes his actual innocence can
invoke the savings clause of § 2255 and proceed under § 2241."); Lott v. Davis, 105
F. App'x 13, 14-15 (6th Cir. 2004). This exception does not apply where the prisoner
failed to seize an earlier opportunity to correct a fundamental defect in his conviction
under pre-existing law, or where he did assert his claim in a prior post-conviction
motion under § 2255, but was denied relief. Charles v. Chandler, 180 F.3d 753, 756
(6th Cir. 1999); United States v. Prevatte, 300 F.3d 792,800 (7th Cir. 2002).
Alternatively, a prisoner proceeding under § 2241 can use the savings clause
of § 2255 ifhe 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). An
actual innocence claim can arise only where, after the prisoner's conviction became
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final, the Supreme Court re-interprets the substantive terms of the criminal statute
under which he was convicted in a manner that establishes that his conduct did not
violate the statute. Hayes v. Holland, 473 F. App'x 501,501-02 (6th Cir. 2012) ("To
date, the savings clause has only been applied to claims of actual innocence based
upon Supreme Court decisions announcing new rules of statutory construction
unavailable for attack under section 2255."); Prevatte, 300 F .3d at 800-801; Eiland
v. Rios, No. 7:07-CV-83-GFVT (B.D. Ky. May 3, 2007), ajfd, No. 07-5735 (6th Cir.
Nov. 28, 2007) (same). Actual innocence requires factual innocence, not mere legal
insufficiency. Bousley v. United States, 523 U.S. 614, 623-24 (1998); Wooten v.

Cauley, 677 F.3d 303,307 (6th Cir. 2012); Hilliard v. United States, 157 F.3d 444,
450 (6th Cir. 1998).
To make this showing, the movant must allege a new rule of law made
retroactive by a Supreme Court case, such as the claim raised in Bailey v. United

States, 516 U.S. 137 (1995). Townsendv. Davis, 83 F. App'x 728 (6th Cir. 2003);
United States v. Peterman, 249 F.3d. 458, 461 (6th Cir. 2001). Oxendine contends
that Alleyne establishes a constitutional right to have all elements of the offense
charged in the indictment and proven beyond a reasonable doubt to the jury; is a new
rule of law which applies retroactively; and affords him relief from his sentence.

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However, there is no indication in Alleyne that the Supreme Court made its
holding retroactive to cases on collateral review. This Court has determined that with
respect to a motion filed under § 2255 seeking relief from a sentence, Alleyne does
not apply retroactively. See United States v. Potter, No. 7:03-21-DCR, No. 7:13­
7290-DCR, 2013 WL 3967960, at *3 (E. D. Ky. July 31, 2013) (concluding that "the
rule announced in Alleyne does not qualify as a watershed rule ofcriminal procedure"
and noting that "[a] number of other district courts considering the matter have
reached a similar conclusion"). This Court has also consistently held that Alleyne
does not afford retroactive relief to a petitioner seeking relief under § 2241. See

Smith v. Holland, No. 13-CV-147-KKC, 2013 WL 4735583, at *4 (E. D. Ky. Sept.
3,2013); Parks v. Sepanek, No. 13-CV-I09-HRW, 2013 WL 4648551, at *3 (E.D.
Ky. Aug. 29,2013); Luneyv. Quintana, No. 6: 13-CV-3-DCR, 2013 WL 3779172, at
*3 (E.D. Ky. July 18,2013).
At least three other district courts in this circuit have similarly determined that

Alleyne does not apply retroactively to cases on collateral review. See Mingo v.
United States, No. 1:03-CR-203-05; No. 1:13-CV-787, 2013 WL 4499249, at *2
(W.D. Mich., Aug. 19, 2013) (denying § 2255 motion because "The holding in

Alleyne does not qualify as a new 'watershed rule."'); Bowers v. Coakley, No. 4:13
CV 332, 2013 WL 4084104, at *3 (N.D. Ohio August 13,2013) (holding that Alleyne
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did not provide relief under § 2241 because it " .. .is not such an intervening change
in the law and does not decriminalize the acts which form the basis of [the
petitioner's] conviction."); UnitedStates v. Eziolisa, No.3: 10-CR-039, No.3: 13-CV­
236, 2013 WL 3812087, at *3 (S.D. Ohio, July 22,2013) (holding that because
Alleyne neither places any primary conduct beyond the power ofthe United States to
punish, nor adopts a "watershed" rule, it does not apply retroactively to a motion for
relief from sentence filed under § 2255). Based on this authority, the Court is unable
to conclude that Alleyne affords Oxendine any retroactive relief.
Additionally, Oxendine does not allege that he is actually innocent of the
underlying offense of which he was convicted, i.e., being a felon in possession ofa
firearm in violation of 18 U.S.C. § 922(g)(l). Instead, based on the rule announced
in Alleyne, Oxendine contends only that the district court improperly determined that
he was an armed career criminal and then improperly enhanced his sentence under
USSG § 4Bl.4(b)(3)(B). The savings clause, however, may only be applied when the
petitioner makes a claim of actual innocence. Alleyne is a sentencing-error case, and
claims of sentencing error may not serve as the basis for an actual innocence claim
under § 2241. See Bannerman v. Snyder, 325 F.3d 722, 724 (2003). Federal courts
in this and other circuits have consistently held that a challenge to a sentence, as
opposed to a conviction, is not a claim of "actual innocence" which may be pursued
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under § 2241. Hayes, 473 F. App'x at 502 ("Hayes does not assert that he is actually
innocent of his federal offenses. Rather, he claims actual innocence of the career
offender enhancement. The savings clause of section 2255(e) does not apply to
sentencing claims").
Simply put, the savings clause of § 2255 extends only to petitioners asserting
a claim of actual innocence as to their underlying convictions, not their enhanced
sentences. Jones v. Castillo, 489 F. App'x 864, 866 (6th Cir. 2012); Peterman, 249

F.3dat462;Mackeyv. Berkebile, No. 7:12-CV-I0-KSF,2012 WL4433316(E.n. Ky.
Sept. 25, 2012), ajJ'd, No. 12-6202 (6th Cir. March 15,2013) (stating that allegations
of sentencing errors do not qualify as claims of actual innocence under the savings
clause); Thorntonv. /ves, No. 6:11-CV-35-GFVT, 2011 WL4586917, at *3 (E.n. Ky.
Sept. 29,2011), ajJ'd, No. 12-5051 (6th Cir. Sept. 11,2012) (same).
In summary, because Oxendine has not established a claim ofactual innocence
based on the Alleyne decision, he is not entitled to proceed under § 2241. The Court
will deny his petition, dismiss this proceeding, and overrule as moot Oxendine's
motion seeking the appointment of counsel.

CONCLUSION

Accordingly, IT IS ORDERED that:

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1.

John Millard Oxendine's 28 U.S.C. § 2241 petition for a writ of habeas

corpus [D. E. No.1] is DENIED;
2.

Oxendine's motion seeking the appointment of counsel [D. E. No.4] is

OVERRULED as MOOT.

3.

The Court will enter an appropriate judgment; and

4.

This habeas proceeding is DISMISSED and STRICKEN from the

Court's docket.
This November 25,2013.

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