McKinney v. Quintana

Filing 4

MEMORANDUM OPINION AND ORDER: (1) Maurice Pernell McKinney's 28 USC 2241 1 Petition for a Writ of Habeas Corpus is DENIED. (2) The Court will enter an appropriate judgment. (3) This matter is STRICKEN from the docket. Signed by Judge Karen K. Caldwell on September 25, 2013. (AWD) cc: Petitioner via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON

MAURICE PERNELL McKINNEY,

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)
Petitioner,
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v.
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FRANCISCO J. QUINTANA, WARDEN, )
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Respondent.
)
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Civil Action No. 13-78-KKC

MEMORANDUM OPINION
AND ORDER

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Maurice Pernell McKinney is an inmate confined at the Federal Medical Center located
in Lexington, Kentucky. Proceeding without an attorney, McKinney has filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his conviction and sentence for
drug and money laundering offenses. [R. 1]
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 Courts (applicable to § 2241 petitions pursuant to Rule 1(b)). The Court evaluates
McKinney’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).
At this stage, the Court accepts McKinney’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).

Having reviewed the petition, the Court must deny relief because McKinney may not assert his
claims in a habeas corpus proceeding under § 2241.
BACKGROUND
On March 2, 2004, a federal grand jury in Florida handed down a five-count superseding
indictment against McKinney, charging him with committing various drug and firearm offenses.
United States v. McKinney, No. 4:04-CR-3-RH-WCS-2 (N.D. Fla. 2004) [R. 18, therein] In
April 2004, McKinney pleaded guilty to Count 5 of the superseding indictment (possession of
a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924(e)). [R. 38, therein] McKinney later pleaded guilty to two other counts of the superseding
indictment: Count 2 (possession with intent to distribute cocaine base, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C), and Count 3 (possession of firearms in furtherance of a drug-trafficking
offense, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), (c)(1)(B)(i), and 2). [R. 50, therein]
The district court determined that under 18 U.S.C. § 924(e), McKinney qualified for a
mandatory 15-year minimum prison term known as the Armed Career Criminal Act (“ACCA”)
because he had three prior convictions for serious drug offenses or violent felonies, consisting
of two prior convictions for burglary of a structure and one conviction for robbery. The district
court therefore increased McKinney’s offense level for grouped Counts 2 and 5, and sentenced
McKinney to a 180-month prison sentence on those counts, to run concurrently with each other.
[R. 65, therein] The district court then imposed a 120-month prison sentence on Count 3 (the
§ 924(c) offense), to run consecutively to the sentence imposed on Counts 2 and 5. [Id.]
McKinney appealed, arguing that his trial counsel provided ineffective assistance, and

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that the district court abused its discretion in denying his motion to withdraw his guilty plea to
the § 924(c) offense in Count 3, erred in imposing a mandatory minimum ten-year consecutive
sentence based on its finding that he possessed an Intratec 9 millimeter semi-automatic pistol,
and violated his Sixth Amendment right to a jury trial, Blakely v. Washington, 542 U.S. 296
(2004), and United States v. Booker, 543 U.S. 220 (2005), by considering the federal guidelines
when sentencing him. On appeal, McKinney’s conviction and sentence were affirmed. United
States v. McKinney, 135 F. App’x 313 (11th Cir. 2005) The Eleventh Circuit determined that
the district court committed no errors,1 id., at 319-26, noting that McKinney’s 300-month
sentence fell below the total range of 330-382 months set by the guidelines. Id. at 325
In November 2005, McKinney filed a motion to vacate his sentence pursuant to 28 U.S.C.
§ 2255. [R. 96, therein] McKinney argued that his counsel was ineffective for failing to
investigate his non-violent burglary convictions used to enhance his sentence under 18 U.S.C.
§ 924(e) and U.S.S.G. § 4B1.4, and for erroneously advising him that his prior convictions
satisfied the ACCA’s enhancement requirements. McKinney claimed that two of his three prior
felonies used to enhance his sentence were for burglary of only a “structure,” which he asserted
did not count as a violent felony. McKinney further alleged that his counsel did not prepare for
sentencing and was unaware of relevant provisions of the federal sentencing guidelines.
The district court denied McKinney’s § 2255 motion. See District Court docket sheet at
R. 103, therein; United States v. McKinney, Nos. 4:04cr3-RH/WCS, 4:05cv449-RH/WCS, 2007
WL 2083639 (N.D. Fla. July 16, 2007) The district court explained that McKinney was not
1

The court declined to review McKinney’s ineffective assistance of counsel claim on direct review. Id., at

318-19.

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denied effective assistance of counsel at sentencing because he was properly sentenced as a
career offender under § 924(e) and U.S.S.G. § 4B1.4. Id., *5. It also rejected McKinney’s claim
that his counsel was constitutionally deficient for failing to differentiate the burglary of a
structure from the burglary a dwelling by explaining, “While burglary of a structure that is not
a dwelling does not count as a crime of violence for career offender sentencing, it does count as
a violent felony for sentencing as an armed career criminal under § 924(e) and § 4B1.4.” Id.
The district court also rejected as baseless McKinney’s allegation that his counsel was
not prepared for sentencing and that he failed to object to the imposition of the 120-month
consecutive sentence on the § 924(c) offense. Id., at *6. The district court explained that
sentence imposed under § 924(c) must run consecutive to any other sentence, “...and is not to be
grouped in determining the sentence range of the other offenses. That the sentence would be
consecutive was clearly explained and understood by Defendant when he entered the plea.” Id.
The district court thus concluded that because it correctly applied the Guidelines and § 2K2.4
and imposed a consecutive sentence on the § 924(c) offense, there was nothing to which
McKinney’s counsel could have objected at sentencing. Id.
McKinney appealed, but the Eleventh Circuit denied his application for a certificate of
appealability, stating that he had not made a substantial showing of the denial of a constitutional
right. McKinney v. United States, No. 07-13943-C (11th Cir. Mar. 21, 2008); see also District
Court docket sheet at R. 124, therein.
ALLEGATIONS ASSERTED IN THE § 2241 PETITION
McKinney contends that he is entitled to relief from his sentence under § 2241 because

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the district court improperly enhanced his sentence under § 924(e). McKinney argues that the
district court lacked subject matter jurisdiction to enhance his sentence under § 924(e) and that
his prior Florida state court convictions did not qualify as predicate offenses which would have
supported an enhancement under § 924(e). McKinney also alleges that by using a preponderance
of the evidence standard, the district court violated his Sixth and Eighth Amendment rights and
the Blakely when it enhanced his sentence. Finally, McKinney alleges that he pleaded guilty to
Count 3 (possession of firearms in furtherance of a drug-trafficking offense under§ 924(c))
because he received ineffective assistance of counsel, and that but for the alleged ineffective
assistance of counsel, he would not have pled guilty to Count 3.
DISCUSSION
McKinney is not challenging the execution of his 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, McKinney challenges the constitutionality
of his sentence on Fifth and Sixth Amendment grounds. Section § 2241 is not, however, 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. Anderson v. Hogsten, 487
F. App’x, 283, 2012 WL 5278595 **1 (6th Cir. Oct. 26, 2012) (Unpublished); Terrell v. United
States, 564 F.3d 442, 447 (6th Cir. 2009)
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. The only

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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).
The remedy provided under § 2255 is not rendered inadequate and ineffective if the
prisoner raised 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 v. Chandler, 180 F.3d 753, 756-58 (6th Cir. 1999); United States v.
Prevatte, 300 F.3d 792, 800 (7th Cir. 2002); Rumler v. Hemingway, 43 F. App’x 946, 947 (6th
Cir. 2002). As explained below, McKinney’s § 2255 remedy was not inadequate and ineffective.
First, in his § 2241 petition, McKinney continues to challenge the enhancement of his
ACCA-enhanced sentence and to argue that he was denied effective assistance of counsel during
the sentencing phase of his criminal proceeding. McKinney again argues that his two prior
Florida burglaries did not qualify as predicate offenses under the ACCA, because they were not
burglaries of a “dwelling.” McKinney raised both of these arguments in his § 2255 motion,
wherein he argued that his counsel was ineffective under the Sixth Amendment for failing to
investigate and/or object to the use of his prior state court burglary convictions as predicates for
the enhancement of his federal sentence under § 924(e). In denying McKinney’s § 2255 motion,

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the district court clearly explained to McKinney that his Sixth Amendment rights were not
violated at sentencing because his prior state court convictions for burglary of a “structure”
counted as predicate offenses/prior violent felony offenses under the ACCA. McKinney, 2007
WL 2083639, at *5.
Thus, McKinney does nothing more in his § 2241 petition than recycle the same Fifth and
Sixth Amendment challenges to his ACCA-enhanced sentence which the district court rejected
as meritless on July 16, 2007, and for which the Eleventh Circuit refused to issue a certificate
of appealability. 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. The fact that McKinney was unsuccessful in his effort to challenge his
ACCA-enhanced sentence in his § 2255 motion, and the fact that the appellate court thereafter
denied him relief on that issue, does not entitle him to relief under § 2241. See Lucas v.
Berkebile, No. 7:11–28–HRW, 2012 WL 2342888, at *2 (E.D. Ky. June 19, 2012) (“Section
2241 is not an available to a petitioner who merely wishes to reargue claims considered and
rejected in a prior motion under Section 2255.”)
Second, in his § 2241 petition, McKinney what appear to be new claims, i.e., (1) that the
district court lacked “subject matter jurisdiction” to enhance his sentence under the ACCA, (2)
that his sentence was improperly enhanced under the ACCA because neither of his prior burglary
offenses resulted in a prison term of more than one year, and (3) that the district court violated
Blakely by enhancing his sentence using a preponderance of the evidence standard. McKinney

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can not demonstrate that his remedy under § 2255 was inadequate or ineffective on these claims,
because he did not assert these arguments in his § 2255 motion when he had an opportunity to
do so. Again, the remedy provided under § 2255 is not rendered inadequate and ineffective if
the petitioner had an opportunity to assert a claim in his § 2255 motion, but failed to do so.
Charles, 180 F.3d at 756-58. Thus, McKinney has not established that his remedy under § 2255
was inadequate and ineffective to challenge his federal detention.
Alternatively, 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), but 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). Townsend v. Davis, 83 F. App’x 728 (6th Cir. 2003); United States v. Peterman, 249
F.3d. 458, 461 (6th Cir. 2001).
McKinney has not cited a new rule of law which the Supreme Court has made
retroactively applicable and which affords him relief from his sentence. McKinney cites Sawyer
v. Whitley, 505 U.S. 333 (1992), in support of his claims. In Sawyer, a state death penalty
prisoner filed a second or successive § 2254 petition alleging a constitutional error in the jury's
determination that he should be sentenced to death; the issue was whether a constitutional error
in capital sentencing would fit within the actual innocence exception. The Supreme Court held

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that the actual innocence exception applies to constitutional errors in capital sentencing only
when the errors resulted in the petitioner becoming statutorily eligible for a death sentence that
could not otherwise have been imposed. Sawyer, 505 U.S. at 348–50. Aside from the fact that
McKinney is not a death-penalty petitioner, Sawyer was decided long before McKinney was
convicted and therefore would not afford him retroactive relief.
To the extent that McKinney continues to allege that he received ineffective assistance
of counsel during the sentencing process, and that but for the alleged ineffective assistance of
counsel he would not have pled guilty to the § 924(c) offense, his claim could be construed as
one falling under Missouri v. Frye, ___U.S.___, 132 S.Ct. 1399 (2012), and Lafler v. Cooper,
___ U.S. ___, 132 S.Ct. 1376 (2012).2 However, these cases do not assist McKinney because
they do not announce a new constitutional rule, and therefore do not apply retroactively to cases
on collateral review. See 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).
Further, McKinney does not allege that is actually innocent of the underlying drug and
firearm offenses crimes of which he was convicted, only that the sentence imposed was
excessive, and that the district court lacked jurisdiction to impose an enhanced sentence. An
actual innocence claim can arise only where, after the prisoner’s conviction became final, the
2

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 process. Lafler, 132 S.Ct. at 1386. The defendant received a substantially more severe sentence at trial
than he likely would have received by pleading guilty. Id.

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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.”); United States v. Prevatte,
300 F.3d 792, 800-801 (7th Cir. 2002).
In this circuit, a challenge to a sentence, as opposed to a conviction, is not a claim of
“actual innocence” which may be pursued 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 regarding their convictions, not their sentences.
Peterman, 249 F.3d at 462; Jones v. Castillo, 489 F. App’x 864, 866 (6th Cir. 2012) (“Claims
alleging “actual innocence” of a sentencing enhancement cannot be raised under § 2241.”);
Raymer v. Barron, 82 F. App’x 431, 432 (6th Cir. 2003); Mackey v. Berkebile, No.
7:12-CV-10-KSF, 2012 WL 4433316 (E.D. Ky. Sept. 25, 2012), aff’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).
In Brown v. Hogsten, No. 6:11-CV-140-KSF (E.D. Ky. 2011), a federal prisoner filed a
§ 2241 petition challenging the enhancement of his sentence under the ACCA, arguing that his
prior conviction for burglary did not constitute a “violent felony” under Begay v. United States,

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553 U.S. 137 (2008).3 This Court denied Brown’s § 2241 petition, and on appeal, the Sixth
Circuit affirmed. Brown v. Hogsten, 503 F. App’x 342, 343 (6th Cir. 2012) (stating that Begay
“...is a sentencing-error case, and claims of sentencing error may not serve as the basis for an
actual innocence claim.”) McKinney does not cite Begay by name, but he is effectively arguing
the same issue in his § 2241 petition which Brown unsuccessfully advanced in his § 2241
petition. Thus, McKinney fails to set forth a claim that warrants relief under § 2241.
The Court will therefore deny McKinney’s petition because he may not assert his Fifth
and Sixth Amendment claims in a habeas corpus proceeding under § 2241.
CONCLUSION
Accordingly, IT IS ORDERED that:
1.

Maurice Pernell McKinney’s 28 U.S. C. § 2241 petition for a writ of habeas

corpus [R. 1], is DENIED.
2.

The Court will enter an appropriate judgment.

3.

This matter is STRICKEN from the docket.

This September 25, 2013.

3

Begay holds that DUI convictions are not violent felonies under the ACCA. Begay, 553 U.S.
at 144–48. Subsequent cases extended Begay’s analysis to other categories of criminal offenses. See,
e.g., Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, (2009), (holding that felony escape
convictions based on the a defendant's failure to report were not violent felonies under the ACCA).

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