Keller v. Hickey
MEMORANDUM OPINION & ORDER: IT IS ORDERED (1) Keller's 1 Petition for Writ of Habeas Corpus & 7 Amended Petition for Writ of Habeas Corpus are DENIED; (2) Keller's 11 Motion to be released pending appeal, 16 Motion for Order to Show Cause, & 17 Motion for hearing are DENIED AS MOOT; (3) Court will enter judgment. Signed by Judge Jennifer B. Coffman on 09/17/2012.(DAK)cc: Pro Se Pet (via US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON
STEPHEN L. KELLER,
DEBORAH HICKEY, Warden,
Civil Action No. 12-CV-9-JBC
Stephen L. Keller is an inmate confined at the Federal Medical Center in Lexington,
Kentucky. Proceeding without counsel, Keller has filed an original and an amended petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. [R. 1, 7] After he filed his
petition, Keller also moved for release on bond pending a determination of the merits of his
petition [R. 11], moved for the Court to show cause why he should not request mandamus
relief in the Sixth Circuit [R. 16], and requested a hearing on his claims. [R. 17] The Court
has reviewed the petition and amended petition,1 but must deny relief because Keller can
not pursue his claims in a habeas corpus proceeding under § 2241. The Court will also
The court conducts a preliminary 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).
Because the petitioner is not represented by an attorney, the court reviews the petition
under a more lenient standard. 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 liberally construes his legal claims in his favor. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). Once that review is complete, the court
may deny habeas relief “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 Courts (applicable to § 2241 petitions pursuant to Rule 1(b)).
Otherwise, the Court may resolve the petition as law and justice require. Hilton v.
Braunskill, 481 U.S. 770, 775 (1987).
deny Keller’s three motions as moot.
In 2002, Keller and two co-defendants were indicted in this court on charges of
conspiracy, mail and wire fraud, and money laundering. The offenses were related to
Kelco, Inc., a viatical and life-settlement business which Keller owned. As a viatical
company, Kelco purchased life-insurance policies from terminally ill people, particularly HIV
patients, for less than the face value of the policies and then re-sold them to investors. In
2003, a jury convicted Keller on all counts of the indictment, and he was sentenced to 168
months of imprisonment. United States v. Sutherlin, No. 02-CR-95-KSF (E.D. Ky. 2002).
His conviction was affirmed on direct appeal. United States v. Sutherlin, 118 F. App’x 911
(6th Cir. 2004). The Sixth Circuit later vacated Keller’s sentence pursuant to United States
v. Booker, 543 U.S. 220 (2005), and remanded the case for re-sentencing. On remand, the
court re-sentenced Keller to 120 months of imprisonment, and his new sentence was
affirmed on appeal. United States v. Keller, 498 F.3d 316 (6th Cir. 2007).
In his original motion to vacate his sentence pursuant to 28 U.S.C. § 2255, Keller
asserted that: 1) he was denied a fair trial because the jury instructions were fatally flawed
for failing to specify that his obligation, if any, to disclose adverse information to the
insurance companies who issued policies to viators was governed by state law under the
McCarran-Ferguson Act, rather than by a federal statute, and 2) newly discovered evidence
showed that the government’s claims were inaccurate and false. United States v. Keller,
No. 02-CR-95-KSF (E.D. Ky. 2002) [at R. 687].
On November 12, 2010, the court denied Keller’s § 2255 motion, rejecting his
claim challenging the jury instructions because Keller had previously raised the
McCarran-Ferguson Act “duty to disclose” argument on direct appeal, the Sixth Circuit
had rejected it, and he could not re-litigate the claim in his § 2255 motion. Id., at R.
694, pp. 4-5. By separate order, the Court denied Keller a certificate of appealability.
Id. at R. 701; United States v. Keller, 2011 WL 772880 (E.D. Ky. Feb. 28, 2011).
The Sixth Circuit affirmed the denial of both Keller’s § 2255 motion and his request
for a certificate of appealability. Keller v. United States, No. 11-5089 (6th Cir. June
23, 2011) (unpublished disposition).
In his original and amended habeas petitions, Keller argues
authorities lacked subject matter jurisdiction to prosecute him because state officials,
specifically the Kentucky Department of Insurance, had sole authority to prosecute him
pursuant to the McCarran-Ferguson Act, 15 U.S.C. § 1011, et seq., under which the
states have assumed primary responsibility for regulating the insurance industry.
Keller further contends that his federal prosecution was inconsistent with a
Maryland state court order directing him to take the very actions for which he was
criminally prosecuted in this court. [R. 1, pp. 1-2; R. 7-1, p. 1] In support of this
argument, Keller attaches a December 4, 2002, order from the Circuit Court for
Baltimore City, Maryland [R. 7-4, p. 4] approving a settlement agreement between
Kelco and the receiver for Answer Care, an entity which had been in the business of
promoting sales of contested viatical life insurance policies. The settlement agreement
reveals that the receiver had taken action against Kelco to rescind 75 viatical policies
it had issued based on alleged misrepresentations made in the application and on other
grounds. [Id., p. 6 ¶ 3]. Kelco denied wrongdoing, but settled the claims by agreeing
to pay the Receiver $105,000.00 in three equal installment payments, assisting in the
sale of 38 active life insurance policies, and receiving 35 rescinded policies, subject
to court approval. [Id., pp. 6-7, ¶ 5]
In his habeas petition, Keller is not challenging any aspect of the execution of
his sentence, such as the computation of sentence credits or parole eligibility, issues
which fall under the purview of § 2241. United States v. Jalili, 925 F.2d 889, 894
(6th Cir.1999). By alleging that federal authorities lacked jurisdiction to prosecute
him, Keller is challenging the validity of his underlying conviction, but § 2241 is not
the mechanism for asserting such challenges. Section 2255(a) provides the primary
avenue of relief for federal prisoners claiming the right to release as a result of an
unlawful conviction or sentence. Terrell v. United States, 564 F.3d 442, 447 (6th Cir.
2009). It is the mechanism for collaterally challenging errors that occurred “at or prior
to sentencing.” Eaves v. United States, 2010 WL at 3283018, at * 6 (E.D. Tenn.
Aug. 17, 2010).
However, § 2255(e) permits a prisoner to challenge a conviction or sentence
in a habeas petition filed pursuant to § 2241 if the remedy provided by § 2255(a) 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). Review under §
2241 is not available “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.” 28 U.S.C. § 2255(e). The petitioner must prove that his § 2255 remedy is
inadequate or ineffective to challenge the legality of his detention.
Chandler, 180 F.3d 753 (6th Cir. 1999); Martin v. Perez, 319 F.3d 799 (6th Cir.
Keller cannot make that showing as to either claim he asserts in habeas petition
because he previously and unsuccessfully asserted his argument based on the
McCarran-Ferguson Act in both his direct appeal and his § 2255 motion, and because
he did not assert his claim based on Maryland state court order in his § 2255 motion,
although the facts underlying the latter claim would have been known to Keller when
he filed that motion in August 2008. The remedy provided under § 2255 is not
rendered inadequate and ineffective if the prisoner presented a claim in a § 2255
motion but was denied relief on the claim, if he failed to assert a claim in his § 2255
motion, or if he was denied permission to file a second or successive § 2255 motion.
Charles, 180 F.3d at 756-58; Rumler v. Hemingway, 43 F. App’x 946, 947 (6th Cir.
2002); Bautista v. Shartle, 2012 WL 11135 at *2 (N.D. Ohio Jan. 3, 2012). Section
2241 is not an additional, alternative, or supplemental remedy to the one provided in
§ 2255. Charles, 180 F.3d at 758. Keller has not established that as to either claim,
his § 2255 remedy was inadequate or ineffective to challenge his conviction.
The only other means of pursuing a claim of actual innocence through the
savings clause of § 2255 is to allege a new rule of law made retroactive by a Supreme
Court case, such as the type of 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). Keller does not allege that he was
convicted of conduct that the law no longer makes criminal in light of a Supreme Court
decision rendered after his direct appeal or first collateral attack on his conviction.
Thus, Keller has not established a claim of actual innocence cognizable in a habeas
corpus proceeding under § 2241. Bousley v. United States, 523 U.S. 614, 620
(1998); Charles, 180 F.3d at 757; see also Reminsky v. United States, 2012 WL
1669951 at *3 (N.D. Ohio Feb. 24, 2012) (petitioner cited no retroactively applicable
Supreme Court decision overturning circuit precedent which would indicate that his
sentence suffered from a “fundamental defect”).
For these reasons, Keller may not pursue his claims in a § 2241 habeas corpus
proceeding. His petition and amended petition will be denied, and his pending motions
will be denied as moot.
Accordingly, IT IS ORDERED that:
Keller’s petition for a writ of habeas corpus [R. 1] and amended petition
for a writ of habeas corpus [R. 7] are DENIED.
Keller’s motions requesting release on bond pending a determination of
the merits of his petition [R. 11]; asking the Court to show cause why he should not
request mandamus relief in the Sixth Circuit [R. 16]; and requesting a hearing on his
claims [R. 17] are DENIED AS MOOT.
The Court will enter an appropriate judgment.
Signed on September 17, 2012
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