Cooper v. Quintana

Filing 5

MEMORANDUM OPINION & ORDER: 1) 1 Petition for a Writ of Habeas Corpus is DENIED. 2) Action is DISMISSED and STRICKEN from the Court's active docket. 3) Judgment shall be entered with this Memo Opinion and Order in favor of Respondent. Signed by Judge Danny C. Reeves on 10/3/2013.(SCD)cc: COR,Pro Se Petitioner(via US Mail)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
BENJAMIN LASHAWN COOPER,

)
)
Petitioner,
)
)
)
V.
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FRANCISCO J. QUINTANA, Warden of )
)
FMC-Lexington,
)
)
Respondent.

Civil Action No. 5: 13-72-DCR

MEMORANDUM OPINION
AND ORDER

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Benjamin Lashawn Cooper is an inmate confined at the Federal Medical Center in
Lexington, Kentucky (“FMC-Lexington”). Proceeding without counsel, Cooper has filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. [Record No. 1] A § 2241
petition is not the proper manner of obtaining the relief sought. Therefore, Cooper’s petition
will be denied.
I.
On October 20, 1992, Cooper and eight co-defendants were indicted for conspiracy
to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. See United States
v. Reese, 67 F.3d 902, 909 (11th Cir. 1995). Cooper was also indicted separately for
possession and use of a firearm in furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c). See Supplemental Brief of Appellant Benjamin Lashawn Cooper, United

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States v. Reese, 67 F.3d 902 (11th Cir. 1995) (No. 93-8843), 1994 WL 16126294, at *2
(“Supplemental Brief”). On April 16, 1993, a jury found Cooper guilty under both
indictments. Thereafter, he was sentenced to consecutive terms of imprisonment of 360
months on the drug conspiracy charge and 60 months on the firearms charge. See id.
Cooper’s sentence on the conspiracy charge was later reduced to 292 months. Cooper v.
United States, No. CV509-038, 2010 WL 1664972, at *1 (S.D. Ga. Feb. 2, 2010). On direct
appeal, Cooper argued that: (i) the district court had improperly refused to sever his trial from
the trial of his co-defendants; (ii) there was insufficient evidence to support his firearms
conviction; and (iii) the admission of a non-testifying co-defendant’s confession violated
Bruton v. United States, 391 U.S. 123 (1968). See Brief of Appellant Benjamin Lashawn
Cooper, United States v. Reese, 67 F.3d 902 (11th Cir. 1995) (No. 93-8843), 1994 WL
16126304, at *1 (“Appellate Brief”).
Unlike five of his co-defendants who also directly appealed their convictions, Cooper
did not challenge the district court’s calculation of the drug quantity attributed to him. See
Brief of the United States, United States v. Reese, 67 F.3d 902 (11th Cir. 1995) (No. 938843), 1994 WL 16126297, at *51; see also Supplemental Brief of the United States, United
States v. Reese, 67 F.3d 902 (11th Cir. 1995) (No. 93-8843), 1994 WL 16126291, at *1
(“Supplemental Brief of the United States”); Appellate Brief, 1994 WL 16126304, at *1;
Supplemental Brief, 1994 WL 16126294, at *1. On November 16, 1994, Cooper was granted
leave from the Eleventh Circuit to file a supplemental appellate brief. Again, however,
Cooper did not raise the issue of the district court’s calculation of the attributable drug
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quantity. See Supplemental Brief of the United States, United States v. Reese, 67 F.3d 902
(11th Cir. 1995) (No. 93-8843), 1994 WL 16126291, at *1 (“Supplemental Brief of the
United States”); see also Appellate Brief, 1994 WL 16126304, at *1; Supplemental Brief,
1994 WL 16126294, at *1
Nonetheless, on October 26, 1995, the Eleventh Circuit found that the only argument
presented by the appellants that warranted discussion was whether the district court
misapplied section 1B1.3 of the United States Sentencing Guidelines (“Guidelines”) when
determining the amount of cocaine attributable to each of the defendants for sentencing
purposes — an issue Cooper did not directly raise in his initial appellate brief or his
supplemental brief. See Reese, 67 F. 3d at 903; see also Appellate Brief, 1994 WL
16126304, at *1; Supplemental Brief, 1994 WL 16126294, at *1. Ultimately, the Eleventh
Circuit found that the district court failed to properly apply the 1992 amendments to the
guidelines to four of the defendants who raised that argument on appeal. As a result, the
court remanded their cases for resentencing. Reese, 67 F. 3d at 909. Cooper’s sentence was
upheld. Id.
Following his unsuccessful direct appeal and proceeding with the assistance of
counsel, on June 24, 1996, Cooper filed a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. Cooper v. United States, No. 5: 96-CV-60-AAA-JEG (S.D.
Ga. 1996). He argued that his sentence for drug trafficking should have been vacated and
remanded for the same reasons articulated by the Eleventh Circuit concerning his co-

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defendants. Cooper’s initial § 2255 motion was denied by the district court on February 18,
1997. [See Cooper, Civil Action No. 5: 96-60-AAA-JEG, Record Nos. 14, 15.]
In July 2009, proceeding without counsel, Cooper filed a second § 2255 motion. See
United States v. Cooper, No. 5:92-CR-29-JRH-JEG (S.D. Ga. 1992). In connection with his
second § 2255 motion, Cooper also filed a “Motion for Hearing on Issue of Factual Dispute,”
in which he superficially raised the argument that the Supreme Court’s holding in Bailey v.
United States, 516 U.S. 137 (1995),1 undermined his prior firearm conviction. [See Cooper,
Criminal Action No. 5: 92-29-JRH-JEG, Record Nos. 972, 977.] In April 2010, the district
court dismissed Cooper’s second § 2255 motion as a successive petition. [See id. at Record
No. 1013; see also id. at Record No. 1086, pp. 2-4.] Cooper also filed a motion pursuant to
Rule 60(b) of Federal Rules of Civil Procedure on March 12, 2012, seeking relief from his
original conviction and sentence. However, the district court denied his motions. [See id.
at Record Nos. 1085, 1092, 1100.] On March 14, 2013, Cooper filed his petition for habeas
relief under § 2241. [Record No. 1]
II.
In conducting an initial review of habeas petitions pursuant to 28 U.S.C. § 2243, the
Court must deny the relief sought “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

1
The Supreme Court in Bailey held that the word “use” in 18 U.S.C. § 924(c)(1) requires
evidence of more than “mere possession” of a weapon by a person who commits a drug offense.
Bailey, 516 U.S. at 143-144 (“We conclude that the language, context, and history of § 924(c)(1)
indicate that the Government show active employment of the firearm.”).
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Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule
1(b)). Because Cooper is not represented by an attorney, the Court evaluates his 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). Thus, at this stage of the proceedings, Cooper’s factual
allegations are accepted as true and his legal claims are liberally construed in his favor.
In his § 2241 motion, Cooper alleges that, prior to his trial, the district court entered
a standing order which stated that any objection raised by any of the co-defendants would
be treated as an objection made by all of the co-defendants. [Record No. 1, pp. 1-2] He
contends that he objected to the quantity of cocaine attributed to him during his
individualized sentencing hearing. [Record No. 1, p. 2] He also alleges that, on appeal, he
and four of his co-defendants objected to the district court’s use of the guidelines in effect
prior to the 1992 amendments. Id. Specifically, Cooper claims that he filed a motion to
adopt the arguments made by his co-appellants and that, on April 20, 1994, the Eleventh
Circuit granted his motion. [Id., p. 4] Notwithstanding this claim, the Eleventh Circuit
granted relief to four of Cooper’s co-defendants and remanded their cases for resentencing,
but it upheld his conviction and sentence. See Reese, 67 F.3d 902. Cooper contends that the
Eleventh Circuit’s action caused an unwarranted sentencing disparity. [Record No. 1, p. 4-5]
He also raises the additional argument that the district court’s denial of relief under Bailey
violated his constitutional rights, and he makes a claim of actual innocence. [Id., p. 3-4]
Cooper’s claim that the district court misapplied the 1992 amendments to § 1B1.3 of
the guidelines when he was sentenced on June 16, 1993, fails to provide a basis for habeas
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relief under § 2241.2 The Sixth Circuit has consistently held that the “savings clause” of 28
U.S.C. § 2255(e) permits a petitioner to file a habeas petition under § 2241 only in the
narrowly-defined set of circumstances of challenging his conviction, not the sentence
imposed. Hayes v. Holland, 473 F. App’x 501, 502 (6th Cir. 2012) (“The savings clause of
section 2255(e) does not apply to sentencing claims.”); see also Wyatt v. United States, 574
F.3d 455, 460 (7th Cir. 2009); United States v. Poole, 531 F.3d 263, 267 n.7 (4th Cir. 2008);
United States v. Peterman, 249 F.3d 458, 462 (6th Cir. 2001). Cooper’s contention that the
district court committed a sentencing error is not cognizable under § 2241 and must be
denied.

2
Nothing in the record supports Cooper’s contention that he properly presented this claim to
the Eleventh Circuit on direct appeal. Assuming the truth of his assertion that he preserved the issue
for appellate review through his co-defendant’s objections and operation of the trial court’s standing
order, merely preserving an issue for appeal does not satisfy the independent requirement that he
assert it as a basis for reversal during the appellate briefing process. Fed. R. App. P. 28(a); Hamilton
v. Southland Christian School, Inc., 680 F.3d 1316, 1319-20 (11th Cir. 2012) (“Under our caselaw,
a party seeking to raise a claim or issue on appeal must plainly and prominently so indicate.
Otherwise, the issue — even if properly preserved at trial — will be considered abandoned.”).
Cooper separately alleges that the Eleventh Circuit granted his motion to adopt the arguments
made by his co-appellants on April 20, 1994. [Record No. 1, p. 4] However, the Government filed
its response brief six months later on October 24, 1994, and while it responded to each of the
guideline claims made by the five co-defendants who asserted them, no mention is made of such a
claim by Cooper. Brief of the United States, United States v. Reese, 67 F.3d 902 (11th Cir. 1995)
(No.93-8843), 1994 WL 16126297, at *51-57. Had Cooper believed that this was an oversight or
a concession by the Government, he surely would have noted the omission in either his
Supplemental Brief, filed on November 16, 1994, or his Reply Brief of Appellant Benjamin
Lashawn Cooper, United States v. Reese, 67 F.3d 902 (11th Cir. 1995) (93-8843), 1994 WL
16126296, filed on November 21, 1994. Notably, neither document mentions a claim made by him
under the guidelines or the Government’s failure to respond to it.
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Cooper’s Bailey argument fares no better. As a general rule, 28 U.S.C. § 2255
provides the correct avenue to challenge a federal conviction or sentence, whereas a federal
prisoner may file a § 2241 petition if he is challenging the execution of his sentence (i.e., the
Bureau of Prisons’ calculation of sentence credits). See Peterman, 249 F.3d at 461; see also
Charles v. Chandler, 180 F.3d 753, 755-56 (6th Cir. 1999). The Sixth Circuit has explained
the difference between the two statutes as follows:
[C]ourts have uniformly held that claims asserted by federal prisoners that seek
to challenge their convictions or imposition of their sentence shall be filed in
the [jurisdiction of the] sentencing court under 28 U.S.C. § 2255, and that
claims seeking to challenge the execution or manner in which the sentence is
served shall be filed in the court having jurisdiction over the prisoner’s
custodian under 28 U.S.C. § 2241.
Terrell v. United States, 564 F.3d 442, 447 (6th Cir. 2009) (internal quotation marks
omitted). In short, 28 U.S.C. § 2255 provides the primary avenue for federal prisoners
seeking relief from an unlawful conviction or sentence, not § 2241.
The “savings clause” in § 2255(e) provides a narrow exception to this rule. Under this
provision, a prisoner may challenge the legality of his conviction through a § 2241 petition
if his remedy under § 2255 “is inadequate or ineffective” to test the legality of his detention.
28 U.S.C. § 2255(e). This exception does not apply where a prisoner fails to seize an earlier
opportunity to correct a fundamental defect in his conviction under pre-existing law, or
actually asserted a claim in a prior post-conviction motion under § 2255 but was denied
relief. Charles, 180 F.3d at 756. A prisoner proceeding under § 2241 can implicate the
savings clause of § 2255 if he alleges “actual innocence.” Bannerman v. Snyder, 325 F.3d

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722, 724 (6th Cir. 2003). However, he or she may only pursue a claim of actual innocence
under § 2241 when that claim is “based upon a new rule of law made retroactive by a
Supreme Court case.” Townsend v. Davis, 83 F. App’x 728, 729 (6th Cir. 2003). “It is the
petitioner’s burden to establish that his remedy under § 2255 is inadequate or ineffective.”
Charles, 180 F.3d at 756.
Here, Cooper filed his initial § 2255 motion on June 24, 1996 — over six months after
the Supreme Court decided Bailey. Thus, any potential claim under Bailey was available to
Cooper when he filed his initial § 2255 motion. It was not until Cooper’s second § 2255
proceeding in July 2009 that he challenged his § 924(c) conviction under Bailey. However,
the district court denied that motion. [See Cooper, Criminal Action No. 5: 92-29-JRH-JEG,
Record Nos. 993, 1006, 1013; see also id. at Record No. 1086, pp. 2-4.] As noted above, the
remedy afforded by § 2255(a) is not “inadequate or ineffective” to test the legality of a
prisoner’s conviction where, as here, the petitioner filed a § 2255 motion and was denied
relief, or the time to file a § 2255 motion has passed. Copeland v. Hemingway, 36 F. App’x
793, 795 (6th Cir. 2002); Charles, 180 F.3d at 756 (“[T]he § 2255 remedy is not considered
inadequate or ineffective simply because § 2255 relief has already been denied, or because
the petitioner is procedurally barred from pursuing relief under § 2255, or because the
petitioner has been denied permission to file a second or successive motion to vacate.”).
Thus, because § 2255 afforded Cooper a viable mechanism to assert his claim under the
holding in Bailey, the Court may not consider it in a petition filed pursuant to § 2241. See,
e.g., Taylor v. O’Brien, No. 05-CV-54-HRW, 2005 U.S. Dist. LEXIS 9151, at *13 (E.D. Ky.
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Apr. 11, 2005) (finding that because the petitioner failed to demonstrate that his remedy
under § 2255 was inadequate or ineffective regarding his Bailey claim, the district court
denied the petitioner’s § 2241 motion).
III.
For the reasons discussed above, it is hereby
ORDERED as follows:
1.

Petitioner Benjamin LaShawn Cooper’s 28 U.S.C. § 2241 petition for a writ

of habeas corpus [Record No. 1] is DENIED.
2.

This action is DISMISSED and STRICKEN from the Court’s docket.

3.

Judgment shall be entered contemporaneously with this Memorandum Opinion

and Order in favor of Respondent Francisco J. Quintana, Warden of FMC-Lexington.
This 3rd day of October, 2013.

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