Perez v. Sepanek
Filing
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MEMORANDUM OPINION & ORDER 1) petition for habeas corpus is DENIED 1 ; 2) Court will enter an appropriate judgment and 3) habeas proceeding dismissed and stricken from docket. Signed by Judge Henry R. Wilhoit, Jr on 4/1/14.(SMT)cc: COR, Perez via USMail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND
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ISRAEL PEREZ,
Petitioner,
v.
MICHAEL SEPANEK, WARDEN,
Respondent.
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Civil Action No. 14-38-HRW
MEMORANDUM OPINION
AND ORDER
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Israel Perez is an inmate confined in the Federal Correctional Institution
located in Ashland, Kentucky. Perez has filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241, challenging his 1997 federal drug conviction from
the United States District Court for the Southern District of New York. [D. E. No.
1] Perez has paid the $5.00 filing fee. [Id.]
The Court reviews the § 2241 petition to determine whether, based on the
face of the petition and any exhibits attached thereto, Perez is entitled to relief. See
Rule 4, Rules Governing 28 U.S.C. § 2254 Cases; (applicable to § 2241 petitions
under Rule l(b)). See, e.g., Patton v. Fenton, 491 F. Supp. 156, 158-59 (M.D. Pa.
1979); see also 28 U.S.C. § 2243.
A district court may summarily dismiss a
petition if it appears from its face that the petitioner is not entitled to relief. See 28
U.S.C. § 2243; Blevins v. Lamanna, 23 F. App'x 216,218 (6th Cir. 2001); Allen v.
Perini, 424 F.2d 134, 141 (6th Cir. 1970).
The Court has reviewed Perez's habeas petition and attached memorandum,
but determines that it must deny the petition because Perez cannot not pursue his
claims under 28 U.S.C. § 2241.
PEREZ'S CRIMINAL HISTORY
1. New York Drug Conviction
In May 1990, Perez, Antonio Perrone, and Ramon Emilio Gomez were
charged in a New York federal court with conspiracy to manufacture cocaine in
violation of 21 U.S.C. §§ 841(a)(I) and (846), and with possession of "listed
chemicals" (acetone and ether) with intent to manufacture cocaine, in violation of
21 U.S.C. §§ 802(33), 802 (35), 812, 841(a), 841(d)(1), 841(d)(2) and 18 U.S.C. §
2. United States v. Perrone, et al., No.1: 90-CR-31-LLS-3 (S. D. N. Y. 2003)1
A jury convicted Gomez and Perrone of conspiracy to manufacture cocaine
and of possession of listed chemicals with intent to manufacture cocaine; they were
sentenced respectively to 126 and 140 months' incarceration; and they appealed.
On June 13, 1991, the Second Circuit affirmed their convictions in part, reversed in
part, and remanded, holding that Gomez's conviction for conspiracy to
manufacture cocaine under § 841(a) was not supported by the evidence, and that
1 Because Perez's New York criminal proceeding predated the advent of the PACER
electronic database, the Court is unable to electronically access the documents filed in that
proceeding, but the Court is able to electronically view the docket sheet of that proceeding.
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while Perrone's conviction of possessing listed chemicals with the requisite intent
was proper, his conviction for conspiracy to manufacture cocaine under § 841(a)
was also not supported by sufficient evidence. 2 United States v. Perrone, 936 F.2d
1403, 1405 (2d Cir. 1991)
In January 1997, Perez pleaded guilty to Count 2 (conspiracy to manufacture
cocaine), and the government dismissed the other counts against him. On May 11,
1997, the district court sentenced Perez to a 27 -month prison term, which was to
run concurrently with a prior sentence imposed on him by the federal court in
Puerto Rico. [R. 8, therein ("the New York Sentence")] The New York Sentence
was to terminate after the expiration of 27 months, or the date on which Perez
completed service of his prior Puerto Rico federal sentence, whichever event
occurred first.
[Id.]
According to the docket sheet from Perez's New York
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The Second Circuit held that there must be "additional evidence to support a conviction
of the additional offense, beyond the minimum necessary to sustain a conviction under § 841(d).
As far as this defendant was concerned, there was not." Perrone, 936 F.2d at 1415.
The Government petitioned for a rehearing as to the court's treatment of Perrone's
conviction of conspiracy to manufacture narcotics pursuant to 21 U.S.C. §§ 841(a) and 846. The
petition was granted, and on November 6, 1991, the Second Circuit clarified that the subsequent
enactment of the section of 21 U.S.c. § 841(d), prohibiting the possession of certain listed
"precursor chemicals" with intent to manufacture controlled substance, or with knowledge that
chemicals would be used for that purpose, did not operate as a partial repeal of 21 U.S.C. §
841 (a), which prohibits the manufacture of narcotics, nor did it preclude prosecution under both
provisions. United States v. Perrone, 949 F.2d 36 (2d Cir. 1991) The court explained that " ...the
reason for enactment of § 841 (d) was to provide for the successful prosecution of certain
behavior which could not be reached through § 841(a). Our holding is that in this case Perrone
was proven guilty of violating § 841(d), but not § 841(a)." United States v. Peronne, 949 F.2d
36,38 (2d Cir. 1991).
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criminal case, Perez neither appealed the New York Sentence nor filed a motion
under 28 U.S.C. § 2255 asking that it be vacated or set aside.
2. Florida Drug Conviction
In February 2001, Perez was indicted in Miami, Florida, and charged with
committing federal drug offenses. United States v. Perez, No. 1:01-CR0139-ASG
6 (S.D. Fla. 2001). Perez eventually pleaded guilty to conspiracy to possess with
intent to distribute five kilograms or more of cocaine, and on October 9, 2002, he
was sentenced to a 360-month prison term and a 10-year supervised release term.
[R. 169, therein ("the Florida Sentence")]
Perez did not appeal the Florida Sentence, but he filed two unsuccessful
motions seeking to vacate or set it aside pursuant to 28 U.S.C. § 2255. In March
2004, Perez filed his first § 2255 motion challenging the Florida Sentence. Perez
v. United States, No.1 :04-CV-20485-SH (S.D. Fla. 2004) In October 2004, the
Magistrate Judge's recommended that the motion be denied untimely under 28
U.S.C. § 2255(t) [D. E. No. 17, therein], and on January 31, 2005, the district court
adopted that recommendation and denied Perez's § 2255 motion. [D. E. No. 23,
therein] Perez did not appeal that ruling.
In February 2008, Perez filed his second § 2255 motion challenging the
Florida Sentence. Perez v. United States, No.1 :08-CV-20309-SH (S.D. Fla. 2008)
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On April 18, 2008, the district court denied the motion as a second, unauthorized §
2255 motion for which Perez had not obtained permission from the Eleventh
Circuit Court of Appeals under 28 U.S.C. § 2244(b)(3). [D. E. No.2, therein]
Perez did not appeal that ruling.
CLAIMS ASSERTED IN THE § 2241 PETITION
In his § 2241 petition, Perez did not mention or otherwise refer to the Florida
Sentence. Perez discussed only his New York conviction, alleging that because the
Second Circuit Court of Appeals reversed the drug conspiracy convictions of his
co-defendants in June 1991, his New York conviction is no longer valid. Perez
contends that because the convictions of Perrone and Gomez were reversed on
appeal for insufficient evidence, "It is a legal impossibility for the petitioner to
have conspired with himself, and as a consequence thereof his continued
incarceration for this crime is illegal." [D. E. No.1, p. 2] Perez further contends
that during his New York criminal proceeding, he received ineffective assistance
of counsel in violation of his Sixth Amendment rights. Perez seeks an order setting
the New York Sentence aside and expunging that conviction from his record.
DISCUSSION
In his habeas petition, Perez does not allege that he is currently serving the
New York Sentence, nor does he allege that the BOP aggregated the New York
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Sentence with the Florida Sentence for purposes of calculating the amount of time
he must serve in federal custody. According to the BOP's official website, Perez's
projected release date is June 9, 2029. See http://www.bop.gov/inmateloc/ (last
visited on March 14, 2014).
Given that fact, and the chronology of Perez's
criminal convictions set forth above, the Court concludes that Perez is currently
serving the Florida Sentence--which was imposed in October 2002 and runs for a
term of 360 months--not the New York Sentence, which was imposed in May 1997
and ran for a term of only 27 months. Lacking other relevant information, it is
logical to assume that Perez would have long ago served the New York Sentence,
and that the New York Sentence has expired.
Assuming that is the case, Perez is not "in custody" for his New York
conviction which he is collaterally challenging in this proceeding, and this Court
lacks subject matter jurisdiction to consider his petition. The federal habeas statute
gives the United States district courts jurisdiction to entertain petitions for habeas
relief only from persons who are "in custody in violation of the Constitution or
laws or treaties of the United States." See 28 U.S.C. § 2241(c)(3).
A prisoner need not be physically confined in jailor prison to challenge his
conviction or sentence in a habeas corpus proceeding. See Mabry v. Johnson, 467
U.S. 504, 506 n.3 (1984) (prisoner's § 2254 action was not moot even though he
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had been paroled) (citing Jones v. Cunningham, 371 U.S. 236 (1963)); see also
Gar/otte v. Fordice, 515 U.S. 39, 45-47 (1995) (prisoner serving consecutive
sentences is in custody for various aggregated sentences, and may attack the
sentence scheduled to run first, even after it has expired, until all consecutive
sentences have been served). The United States Supreme Court has "never held
however, that a habeas petitioner may be 'in custody' under a conviction when the
sentence imposed for that conviction has fully expired at the time his petition is
filed." Maleng v. Cook, 490 U.S. 488, 91 (1989). "The federal habeas statute
gives the United States district courts jurisdiction to entertain petitions for habeas
relief only from persons who are 'in custody in violation of the Constitution or
laws or treaties of the United States.'" Id. at 491 (quoting 28 U.S.C. § 2241(c)(3)).
Once a sentence for a conviction has fully expired, a habeas petitioner is no
longer "in custody" for that offense and cannot bring a habeas petition directed
solely at that conviction. Lackawanna Cty. Dist. Att'y v. Coss, 532 U.S. 394, 401
(2001); Maleng, 490 U.S. at 490-91; Carafas v. LaVallee, 391 U.S. 234, 238
(1968); see also Lee v. Michigan, No. 13-CV-15004, 2014 WL 128525, at *2 (E.D.
Mich. Jan. 14, 2014) (denying habeas relief to § 2241 petitioner who had fully
served her sentence); Noel v. Easterling, No. 10-2295-STA/cgc, 2011 WL 145293,
at * * 1-2 (W.D. Tenn. Jan. 18, 2011) (district court could not grant habeas relief to
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a § 2241 petitioner who was challenging his eleven-month 2002 conviction which
expired in 2003, despite the fact that when he filed his petition, he was then in
custody serving a 23-year sentence resulting from a subsequent 2005 conviction
for attempted first degree murder, aggravated assault, retaliation for past action,
unlawful possession of a weapon, and driving on a revoked license). Accordingly,
under Maleng and the other cases cited above, Perez is not "in custody" for New
York conviction which he is now challenging, and this Court does not have subject
matter to consider his habeas petition.
Alternatively, even assuming that the BOP has aggregated the New York
Sentence and the Florida Sentence, or that under some other undisclosed scenario
Perez is in fact in the BOP's custody pursuant to the New York Sentence, Perez
still cannot obtain relief from this Court under § 2241. Perez is not challenging the
execution of his New York Sentence, such as the computation of sentence 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, Perez essentially challenges the
constitutionality of that underlying conviction and sentence on Fifth and Sixth
Amendment grounds. Perez alleges that the Second Circuit's 1991 reversal of his
two co-defendants' conviction for the drug conspiracy relieves him of criminal
liability of the same drug conspiracy to which he subsequently pleaded guilty in
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1997, and that his appellate counsel rendered constitutionally defective
representation during his New York criminal proceeding. Section § 2241 is not,
however, the proper mechanism for asserting such challenges:
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).
Section 2255(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. This exception does not apply where the petitioner 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).
Perez now asserts that the Perrone decision rendered in June 1991 affords
him retroactive relief from his drug conspiracy conviction, but Perez ignores the
fact that he could have raised this very claim when he pleaded guilty to the drug
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conspIracy offense SIX years later, in January 1997.
Perez also could have
challenged this aspect of the New York Sentence by filing a 2255 motion in the
Southern District New York, but he did not do so. In essence, Perez is asserting a
claim of which he was aware, or should have been aware, when he pleaded guilty
in January 1997. The remedy under § 2255 is not inadequate where a petitioner
asserted a legal argument in a § 2255 motion but was denied relief on the claim.
Charles, 180 F.3d at 756-58. Section 2241 is not an additional, alternative, or
supplemental remedy to the one provided in § 2255. Id., at 758.
A prisoner proceeding under § 2241 can use the savings clause of § 2255 if
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). An actual
innocence claim can arise only where, after the prisoner's conviction became 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. 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."); Lottv. Davis, 105 F. App'x 13,14-15 (6th Cir. 2004).
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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). Townsend v. Davis, 83 F. App'x 728 (6th Cir. 2003);
United States v. Peterman, 249 F.3d. 458, 461 (6th Cir. 2001). Perez does not,
however, point to any retroactively applicable Supreme Court decision which
would afford him relief from his New York conviction.
Again, the Perrone
decision which Perez cites was Second Circuit decision, not a Supreme Court
decision, and as noted, that decision was rendered in June 1991, five and one-half
years before Perez pleaded guilty in 1997 to conspiracy to manufacture cocaine.
Thus, Perez has not alleged a claim of actual innocence as to his New York
conviction. Because Perez alleges that he was denied effective assistance of
counsel in his New York criminal proceeding, and because of his pro se status, the
Court will briefly note two cases, Missouri v. Frye, _U.S._, 132 S.Ct. 1399
(2012), and Lafler v. Cooper, _
U.S. _ , 132 S.Ct. 1376 (2012), which discuss
when a defendant may assert certain types of claims alleging ineffective assistance
of counsel. 3 Neither of these cases assist Perez, because even assuming Perez was
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In Frye, the Supreme Court held that defense counsel has a duty to communicate formal
offers from the prosecution to accept a plea on terms that may be favorable to the accused, prior
to the offer's expiration, and that defense counsel's failure to inform a defendant of a written
plea offer before it expired satisfies the deficient performance prong of the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1986). In Lafler, the defendant went to trial rather than
accept a plea deal as a result of ineffective assistance of counsel during the plea negotiation
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denied effective assistance of counsel during his New York criminal case, these
cases do not announce a new constitutional rule, and therefore do not apply
retroactively to cases on collateral review. See In re Liddell, 722 F.3d 737, 738 (6 th
Cir. 2013); Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir. 2012); In re
King, 697 F.3d 1189 (5th Cir. 2012); Hare v. United States, 688 F.3d 878, 879 (7th
Cir. 2012); In re Graham, 714 F.3d 1181, 1183 (10th Cir. April 23, 2013).
Finally, to the extent that Perez asks this Court to "expunge" the New York
Sentence from his criminal record, the Court must deny that request. A court may
invoke its expungement power only with respect to "illegal convictions,
convictions under statutes later deemed unconstitutional, and convictions obtained
through governmental misconduct."
United States v. Vertel, No. 1:91-CR-162,
2006 WL 250672, at *2 (W.D. Mich. Jan. 31, 2006) (citing United States v.
Robinson, 1996 WL 107129, at *2 (6 th Cir. March 8, 1996». In contrast, courts
routinely deny requests to expunge valid convictions. Id. (citing inter alia United
States v. Smith, 1998 WL 19174, at * 1 (6th Cir. March 8, 1988) (no expunction of
valid conviction for which defendant was subsequently pardoned»; United States
v. Janik, 10 F.3d 470, 472 (7th Cir. 1993) (no expunction for soldier concerned
about effects on future career of conviction overturned on Speedy Trial Act
process. Lafler, 132 8.Ct. at 1386. The defendant received a substantially more severe sentence
at trial than he likely would have received by pleading guilty. ld.
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grounds, where appellate court held that there existed constitutionally sufficient
evidence to support the conviction). 1
Regardless of whether the New York
Sentence has expired or whether Perez is currently serving the New York
Sentence, he asserts no valid argument under § 2241 that the New York Sentence
was unconstitutional. Therefore, the Court will not direct the BOP or any other
entity to expunge the New York Sentence from Perez's criminal record.
In summary, Perez has not shown that his remedy under § 2255 was an
inadequate and ineffective means of challenging his New York conviction, nor has
he established a claim of actual innocence as to that conviction. Therefore, he is
not entitled to proceed under § 2241, and the Court will deny his petition and
dismiss this proceeding.
CONCLUSION
Accordingly, IT IS ORDERED that:
1.
Israel Perez's 28 U.S.C. § 2241 petition for a writ of habeas corpus
[D. E. No.1] is DENIED;
See also United States v. Wiley, 89 F.Supp.2d 909, 911 (S.D. Ohio 1999) (denying
expungement of valid conviction despite the fact that defendant was depressed at the time of the
offense, had been law-abiding since, and was experiencing significant hardship because of past
conviction); United States v. Gallas, 771 F.Supp. 904, 909-10 (W.D. Tenn. 1991) (denying
request for expungement of valid conviction and finding no extraordinary circumstances in
argument that defendant had been law-abiding since the conviction and that his professional
opportunities continued to be hurt by his past conviction); Schwab v. Gallas, 724 F.Supp. 509,
510-11 (N.D. Ohio 1989) (expunction of valid felony conviction not warranted by the fact that
movant had fulfilled the requirements of the sentence and since led a law-abiding life).
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2.
The Court will enter an appropriate Judgment; and
3.
This habeas proceeding is DISMISSED and STRICKEN from the
Court's docket.
This April 1, 2014.
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