Sutton v. Sepanek

Filing 9

MEMORANDUM OPINION & ORDER: 1. Sutton's original and supplemented petitions for a writ of habeas corpus DE 1 5 are DENIED. 2. The Court will enter a judgment contemporaneously with this order. 3. This matter is STRICKEN from the docket. Signed by Judge Henry R. Wilhoit, Jr on 3/10/15.(KSS)cc: COR, Sutton (via US Mail)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
ASHLAND

)

RONALDSUTTON,

)

Petitioner,

)

v.

)
)
)

MICHAEL SEP ANEK, WARDEN,

)

Civil No. 0: 14-163-HRW

)

Respondent.

MEMORANDUM OPINION
AND ORDER

)

*** *** *** ***
Ronald Sutton is an inmate confined at the Federal Correctional Institution
in Ashland, Kentucky. Proceeding without counsel, Sutton has filed an original
and supplemented petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. [D. E. No. 1, 5] Sutton has paid the habeas filing fee. [D. E. No.6]

The Court conducts an initial review of habeas corpus petitions. 28 U.S. C.
§ 2243; Alexander v. Northern Bureau of Prisons, 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 of the
Rules Governing § 2254 Cases in the United States District Cou1is (applicable to
§ 2241 petitions pursuant to Rule 1(b)). The Court evaluates Sutton's petition

under a more lenient standard because he is not represented by an attorney.
1

Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573

(6th Cir. 2003). At this stage, the Court accepts the petitioner's factual allegations
as true, and his legal claims are liberally construed in his favor. Bell Atlantic C01p.
v. Twombly, 550 U.S. 544, 555-56 (2007).

On December 21, 2005, Sutton, his brother Randall, and Jessie Mongham
were indicted by a federal grand jury sitting in Cincinnati, Ohio for a series of
armed bank robberies they committed from July to September 2005. At all but one
of the robberies, Sutton's brother Randall struck a bank manager in the head with
the blunt end of his gun, and weapons were openly brandished at all of the
robberies. For each of the three bank robberies in which he participated, Sutton
was charged with both bank robbery in violation of 18 U.S.C. § 2113(a), (d), and
also with brandishing a firearm during the commission of a crime of violence in
violation of 18 U.S.C. § 924(c)(1). United States v. Sutton, 406 F. App'x 955 (6th
Cir. 2011 ).
Sutton, like his brother, signed a plea agreement admitting that he and his
cohotis committed the robberies, and testified against Mongham at his trial.
United States v. Mangham, 356 F. App'x 831 (6th Cir. 2009). At the August 29,

2007, sentencing hearing, the government moved for a downward depmiure in
Sutton's sentence in light of his cooperation and testimony against his codefendant.

The trial comi agreed, and sentenced Sutton to 80 months
2

imprisonment on Counts Three and Five for the two bank robberies, 84 months
imprisonment on Count Four for the first conviction for brandishing a firearm, and
300 months imprisonment on Count Six for the second conviction for brandishing
a firearm, all to run concurrently. United States v. Sutton, No. 1:05-CR-183-MRB2 (S.D. Ohio 2005). Both of the sentences for the brandishing convictions were set
at the respective 7-year and 25-year statutory minimums under § 924(c)(l).
Sutton's objections to the reasonableness of his sentence under the Fifth and
Eighth Amendments were rejected by the Sixth Circuit on direct appeal. Sutton,
406 F. App'x at 959-60.
On April 30, 2012, Sutton filed a timely motion to vacate his convictions
and sentence pursuant to 28 U.S.C. § 2255. In that motion, Sutton argued in part
that his trial counsel was ineffective for failing to assert that his second brandishing
conviction violated the Double Jeopardy Clause under United States v. Hemy, 878
F. 2d 937, 943 (6th Cir. 1989). The trial court denied his motion, noting that
Sutton's two brandishing convictions were imposed for brandishing a firearm on
two distinct occasions. The Sixth Circuit denied a certificate of appealability on
March 10, 2014, on the same grounds. United States v. Sutton, No. 1:05-CR-183MRB-2 (S.D. Ohio 2005) [D. E. Nos. 188, 199, 207].
In his § 2241 petition, Sutton offers a slightly different take on his Double
Jeopardy argument, contending that his two convictions under Section 924(c)(1)
3

for brandishing a firearm in Counts Four and Six are for the same "offense" as his
two convictions under Section 2113(a) for armed bank robbery in Counts Three
and Five, and therefore his convictions and sentences under them violate the
Double Jeopardy Clause of the Fifth Amendment.

[D. E. No. 5, pp. 1-2]

Specifically, he contends that "[i]t is impermissible to fractionalize a single offense
into multiple offense in order to inflict excessive punishment on the petitioner
where said convictions place his life, liberty, and property twice in jeopardy." Id.
at 3.
The Court must deny Sutton's petition on both procedural and substantive
grounds. Procedurally, Sutton must assert his challenge to his convictions and
sentence in a motion under 28 U.S.C. § 2255, and may not pursue his claim in a
§ 2241 petition. A petition filed under 28 U.S.C. § 2241 is reserved for challenges
to actions taken by prison officials that affect the manner in which the prisoner's
sentence is being carried out, such as computing sentence credits or determining
parole eligibility. Terrell v. United States, 564 F.3d 442, 447 (6th Cir. 2009). To
challenge the legality of a federal conviction or sentence, a prisoner must file a
motion for post-conviction relief under 28 U.S.C. § 2255 in the court that
convicted and sentenced him. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir.
2003). The prisoner may not use a habeas corpus petition pursuant to 28 U.S.C.
§ 2241 for this purpose, as it does not constitute an additional or alternative remedy
4

to the one available under § 2255. Hernandez v. Lamanna, 16 F. App'x 317, 320
(6th Cir. 2001).
Under highly exceptional circumstances, the "savings clause" found in 28
U.S.C. § 2255(e) will permit a prisoner to challenge the validity of his conviction
in a habeas corpus proceeding under § 2241, but only where the remedy afforded
by § 2255(a) "is inadequate or ineffective" to test the legality of his detention.
Truss v. Davis, 115 F. App'x 772, 773-74 (6th Cir. 2004). This standard is not

satisfied merely because the prisoner's time to file a § 2255 motion has passed; he
did not file a § 2255 motion; or he did file such a motion and was denied relief.
Copeland v. Hemingway, 36 F. App'x 793, 795 (6th Cir. 2002); Taylor v. Gilkey,

314 F.3d 832, 835 (7th Cir. 2002) (§ 2241 available "only when a structural
problem in§ 2255 forecloses even one round of effective collateral review ... ").
Instead, the prisoner must be asserting a claim of"actual innocence." Such a
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. 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 Comi decisions announcing new rules of statutory

5

construction unavailable for attack under section 2255."); United States v.
Prevatte, 300 F.3d 792, 800-801 (7th Cir. 2002).

Sutton's constitutional challenge to his convictions on Double Jeopardy
grounds is not predicated upon a newly-decided Supreme Court decision reinterpreting the terms of the statutes of his conviction, and therefore does not fall
within this narrow category of cases. Rather, his claim relates to alleged errors that
occurred at or before sentencing, and thus falls squarely within the range of claims
which must be and should have been brought under § 2255. His claim therefore
may not be pursued in a habeas corpus petition pursuant to 28 U.S.C. § 2241.
Howard v. Young, 485 F. App'x 664 (5th Cir. 2012) (holding Double Jeopardy

challenge to convictions for armed bank robbery under § 2113 and carrying a
firearm during the commission of a crime of violence under § 924(c) is not
cognizable under§ 2241). See also Pumell v. Keffer, 325 F. App'x 310 (5th Cir.
2009) (holding Double Jeopardy challenge to drug and firearms convictions not
cognizable under§ 2241); Gresham v. Haynes, 476 F. App'x 846 (11th Cir. 2012)
(same).
Sutton argues that McQuiggin v. Perkins,_ U.S._, 133 S. Ct. 1924 (2013)
permits him to assert his "actual innocence" claim in under § 2241. [R. 5, pp. 910]

In McQuiggin, the Supreme Comt held that if the petitioner makes a

"convincing showing of actual innocence" - meaning evidence indicating that the
6

petitioner did not actually commit the crime for which he was convicted - then he
may overcome a procedural bar to consideration of his constitutional claim on the
merits if the evidence establishes that it is more likely than not that no reasonable
juror would have convicted him in the light of the new evidence. McQuiggin, 133
S. Ct. at 1931-33, 35-36. Thus, where a defendant can produce sufficient evidence
to demonstrate actual innocence, McQuiggin permits the defendant to overcome a
procedural bar to habeas relief.
Sutton's reliance upon McQuiggin suffers from both structural and
particularized defects. First, as noted above, habeas relief may be sought under
§ 2241 only where the remedy available under § 2255 is "inadequate or
ineffective" to obtain the relief the petitioner seeks. If the defendant has obtained
evidence sufficient to demonstrate that he is actually innocent of the federal crimes
for which he was convicted, McQuiggin would open the gateway to seeking habeas
relief under 28 U.S.C. § 2255.

If relief is then available under § 2255, by

definition that remedy under § 2255 is not "inadequate and ineffective" to obtain
the relief the prisoner seeks, Truss, 115 F. App'x at 773-74, and relief under§
2241 is unavailable. In short, because McQuiggin permits resort to relief under §
2255 upon a sufficient showing of innocence, that remedy- not § 2241 -is the
only available and proper means to seek such relief. As the Tenth Circuit recently
explained:
7

On appeal, Boyce contends that he is actually innocent. However,
Boyce's briefing fails to explain how his asserted innocence entitles
him to a remedy under § 2241. Our circuit precedent makes "a
showing of actual innocence ... irrelevant" to whether a remedy under
§ 2255 is inadequate or ineffective. Rather, a remedy under § 2255 is
adequate or effective as long as the movant's "argument challenging
the legality of his detention could have been tested in an initial § 2255
motion."
The proper procedure for a federal prisoner who claims newly
discovered evidence demonstrates his innocence is to seek permission
to file a second or successive § 2255 motion in the sentencing court.
See § 2255(h). .. . Boyce also suggests that the Supreme Court's
decision in McQuiggin v. Perkins,_ U.S._, 133 S. Ct. 1924, 185 L.
Ed. 2d 1019 (2013), allows him to proceed under§ 2241 based on his
assertion of actual innocence. He is incorrect. Perkins discusses an
actual innocence "gateway" via which a prisoner may overcome
procedural or time bars in an initial habeas proceeding. See 133 S. Ct.
at 1928, 1934. The Perkins Court explicitly noted the different rules
that apply to a second or successive case. !d. at 1933-34
(distinguishing between the heightened requirements for second or
successive claims and the miscarriage of justice exception applicable
to initial habeas claims).

Boyce v. Berkebile, 2015 WL 306733, at *1-2 (lOth Cir. Jan. 26, 2015) (internal
citations omitted).

See also Candelario v. Warden, No. 14-11836, 2014 WL

6056234 (11th Cir. Nov. 14, 2014) ("McQuiggin's holding was limited to initial
petitions for habeas corpus. It created an exception to the limitations period; it said
nothing about whether a petitioner may bring a second or successive petition under
the savings clause."); Grifin v. Longley, 548 F. App'x 146, 147 (5th Cir. 2013)
(holding that McQuiggin "do[es] not support a holding that [petitioner's] claim is
based on a retroactively applicable Supreme Court opinion indicating that he was
8

convicted of a nonexistent offense and that his claim was foreclosed when it
otherwise should have been raised.")
Second, Sutton does not make an "actual innocence" claim under
McQuiggin because he does not contend that he did not rob the banks or brandish

his gun. Instead, having admitted to committing those acts, he contends that the
federal statutes which criminalize those acts as separate crimes violate the Double
Jeopardy Clause by "impennissibl[y] fractional[izing] a single offense into
multiple offense[s]." [D. E. No.5, p. 3] Thus, even if McQuiggin could be used to
assert an "actual innocence" claim in a § 2241 petition, it would not apply to
Sutton's claim. Cj Tawalebeh v. Hollingsworth, No. 1:14-CV-04759, 2014 WL
4053962, at *2 (D.N.J. Aug. 15, 2014) ("Petitioner does not dispute his
participation in the events underlying his conviction, he is merely challenging a
purely legal aspect. Nothing in McQuiggin provides a basis for relief when such
claim is asserted: McQuiggin did not even have a reason to address this issue.");
Sidener v. United States, No. 11-CV-3085, 2013 WL 4041375, at *3 (C.D. Ill.

Aug. 8, 2013) ("Petitioner's admission to the factual basis demonstrates that
Petitioner cannot make a showing of actual innocence [under McQuiggin].");
United States v. Cunningham, No. H-12-3147, 2013 WL 3899335, at *4 n.3 (S.D.

Tex. July 27, 2013) (same).

9

Finally, even if Sutton could overcome the numerous procedural barriers to
his assertion of his constitutional claims in this § 2241 proceeding, his Double
Jeopardy claim is substantively without merit. Cf United States v. Ramos, 494 F.
App'x 641, 643 (7th Cir. 2012) ("Armed bank robbery and use of a gun during a
crime of violence are different offenses for double jeopardy analysis .... It would
not matter if they were the same, however, because Congress may authorize
cumulative punishments in a single prosecution charging violations of different
statutes proscribing the same offense.") (internal citations omitted); United States
v. Jordan, 351 F. App'x 248 (9th Cir. 2009) ("The district court did not err by
sentencing Myrie for violations of both 18 U.S.C. § 2113(d) and 18 U.S.C. §
924(c). We have previously concluded that imposing consecutive sentences under
both statutes does not violate the Double Jeopardy Clause."); United States v.
Manna, 92 F. App'x 880, 884-85 (3d Cir. 2004) (separate convictions for armed
bank robbery under§ 2113(d) and for brandishing a firearm during that offense
under § 924(c) does not violate Double Jeopardy Clause under United States v.
Gonzales, 520 U.S. 1, 10 (1997)); United States v. Davis, 306 F. 3d 398 (6th Cir.
2002) (same).
Accordingly, IT IS ORDERED that:
1.

Sutton's original and supplemented petitions for a writ of habeas

corpus [D. E. No. 1, 5] are DENIED.
10

2.

The Court will enter a judgment contemporaneously with this order.

3.

This matter is STRICKEN from the docket.

This 101" day of March, 2015.

~~·
~~

Signed By:

"---~"

United Slatll Dlatrlct .IUdp

~

11

f:lenrv B. WQbqlt. Jr.