Heard v. Ballard
Filing
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MEMORANDUM OPINION & ORDER: (1) Clerk shall TERMINATE Rodney Ballard as the respondent, and shall SUBSTITUTE Shannon Withers, Acting Warden of USP-McCreary, as the respondent herein. (2) Heard's 1 28 USC 2241 Petition for Writ of Habeas Corpu s is DENIED as PREMATURE. (3) This action is DISMISSED WITHOUT PREJUDICE to Heard's right to assert the same constitutional claims in his pending criminal appeal, Sixth Circuit Court of Appeals as Case No. 13-5649, or, if appropriate, after he h as exhausted other available remedies. (4) Judgment will be entered contemporaneously with this Memorandum Opinion and Order in favor of the Respondent, Shannon Withers, Acting Warden of USP-McCreary. (5) For informational purposes, the Clerk is dire cted to provide Andrew M. Stephens, Heard's court-appointed counsel in the criminal action 11-CR-73, with a copy of this MOO and with a copy of Heard's 2241 petition. Signed by Judge Karen K. Caldwell on August 2, 2013. (AWD) cc: Petitioner via US Mail,Andrew Stephens w/copy of petition
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON
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MARQUIS DERON HEARD,
Petitioner,
v.
SHARON WITHERS, Acting Warden,
Respondent.
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Civil Action No. 13-107-KKC
MEMORANDUM OPINION
AND ORDER
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Marquis Deron Heard, an inmate currently incarcerated in the United States Penitentiary
(“USP”)-McCreary located in Pine Knot, Kentucky, has filed a pro se habeas corpus petition,
pursuant to 28 U.S.C. § 2241.1
As Heard has paid the $5.00 filing fee, the Court screens his petition to determine
whether he is entitled to relief under § 2241. See Rule 4, Rules Governing 28 U.S.C. § 2254
Cases; (applicable to § 2241 petitions under Rule 1(b)); 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.
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Heard has named Rodney Ballard as the respondent to this proceeding. Ballard is the Director of Fayette
County Detention Center in Lexington, K entucky, where Heard was previously confined. However, the only proper
respondent to a petition for a writ of habeas corpus is the individual who has immediate custody of the person detained,
typically the warden of the facility where the petitioner is confined. 28 U.S.C. §2243; Rumsfeld v. Padilla, 542 U.S. 426,
435 (2004). As Heard is currently confined in USP-McCreary, and as the current Acting W arden of USP-McCreary is
Shannon W ithers, the Clerk of the Court will be instructed to terminate Rodney Ballard as the respondent and to
substitute Shannon W ithers as the proper respondent to this proceeding.
2001). Because Heard’s petition is premature, he is not entitled to relief under § 2241. The
Court will therefore deny Heard’s petition and dismiss this proceeding without prejudice.
BACKGROUND
On June 2, 2011, a federal grand jury in this district handed down a three-count
indictment charging Heard with (1) conspiring with others to knowingly and intentionally
distribute cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. § 846; (2)
knowingly and intentionally distributing a mixture or substance containing cocaine, in violation
of 21 U.S.C. § 841(a)(1); and (3) conspiring with others to knowingly conduct financial
transactions affecting interstate and foreign commerce, viz., the purchase and sale of cocaine,
which involved United States currency representing the proceeds of the unlawful distribution of
cocaine, with the intent to promote the carrying on of that unlawful activity, and that Heard knew
that the currency involved in these financial transactions represented the proceeds of an unlawful
activity, all in violation of 18 U.S.C. § 1956(h). See United States of America v. Marquis Deron
Heard, 5:11-CR-73-KKC. The indictment also sought the forfeiture of certain personal property
and real property, pursuant to 21 U.S.C. § 853 and 18 U.S.C. § 982.
On July 7, 2011, a superceding indictment was handed down, charging Heard with
conspiring to commit drug trafficking in violation of 21 U.S.C. § 846; distributing cocaine/crack
cocaine in violation of 21 U.S.C. § 841; being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g); and conspiring to commit money laundering in violation of 18 U.S.C. §
1956(h). [R. 13, therein] The superceding indictment also sought the forfeiture of property
pursuant to 21 U.S.C. § 853 and 18 U.S.C. §§ 982 and 924(d). [Id.]
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On November 3, 2011, a second superceding indictment was handed down, charging
Heard with conspiring to commit drug trafficking; distributing cocaine/crack cocaine; being a
felon in possession of a firearm; knowingly engaging in a transaction affecting interstate
commerce in violation of 18 U.S.C. § 1957; and 28 counts of money laundering. [R. 57, therein]
The second superceding indictment also sought the forfeiture of property pursuant to 21 U.S.C.
§ 853 and 18 U.S.C. §§ 982 and 924(d). [Id.]
On January 11, 2013, the jury convicted Heard on the drug, firearm, and
money-laundering offenses. [R. 193, therein] On May 6, 2013, this Court sentenced Heard to
a 360-month prison term, followed by a 10-year term of supervised release. [R. 218, therein]
On May 8, 2013, Heard filed a Notice of Appeal [R. 224, therein], and his appeal is now pending
in the Sixth Circuit Court of Appeals, Case No. 13-5649. [R. 225, therein; see also
https://ecf.ca6.uscourts.gov/cmecf/servlet/TransportRoom?servlet=CaseSummary.jsp&caseN
um=13-5649&incOrigDkt=Y&incDktEntries=Y (last visited on August 2, 2013)].
ALLEGATIONS OF THE § 2241 PETITION
In his § 2241 petition, Heard contends that (1) he was charged with conspiracy, but that
was impossible to have a one-man conspiracy where he was the only defendant charged with the
offense; (2) the evidence at trial was insufficient to establish the existence of a conspiracy; (3)
the government selectively prosecuted him and refused to charge other persons involved in the
alleged criminal activity because of “race and prejudice” [Id., p. 8]; (4) the indictment was
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legally defective;2 and (5) the police forcibly entered his residence, kicked in his door, and
searched his residence on a defective indictment. Heard seeks immediate release from custody.
DISCUSSION
Heard’s § 2241 petition is premature. Heard alleges that during various stages of his
criminal proceeding, the government violated both his Fourth Amendment right to be free from
unreasonable searches, and his Fifth Amendment rights to due process of law and equal
protection of the laws. But § 2241 is not the mechanism for asserting such constitutional
challenges: 28 U.S.C. § 2255(a) provides the correct mechanism for a federal prisoner to
challenge his conviction or sentence. Terrell v. United States, 564 F.3d 442, 447 (6th Cir. 2009).
Section § 2255 is the mechanism for collaterally challenging errors that occurred “at or prior to
sentencing.” Eaves v. United States, No. 4:10–CV–36, 2010 WL 3283018, at *6 (E.D. Tenn.
Aug. 17, 2010). A petitioner may challenge the legality of his conviction through a § 2241
petition only where his remedy under Section 2255 “is inadequate or ineffective” to test the
legality of his detention. 28 U.S.C. § 2255(e). 3
However, at this stage, Heard can not avail himself even of the post-judgment remedy set
forth in § 2255, because the direct appeal of his criminal conviction and sentence is currently
pending in the Sixth Circuit Court of Appeals. The law is clear that absent extraordinary
2
Heard’s argument on this point is unclear. Heard states, “Due process was avoided and never allowed me
in case 11 cr 73 & the USA formed this indictment by giving me a QUASI IN REM action restraining me from having
my liberty.” [R 1, p. 7]
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Typically, a petitioner can demonstrate that his remedy under § 2255 was inadequate and ineffective to
challenge his detention only where, after his conviction has become final, the Supreme Court has re-interpreted the terms
of the statute which he convicted of violating in such a way that his actions could not be considered as violating 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).
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circumstances, a district court is precluded from entertaining a collateral challenge brought under
§ 2255 while the direct appeal of a defendant’s criminal conviction is pending. Smith v. United
States, 89 F.3d 835 (6th Cir. 1996) (unpublished) (noting that the “well established general rule is
that, absent extraordinary circumstances, the district court should not consider § 2255 motions while
a direct appeal is pending.”) (quoting United States v. Robinson, 8 F.3d 398, 405 (7th Cir. 1993));
Sargent v. United States, 19 F.3d 1434, 1994 WL 83324, at *1 (6th Cir. March 15, 1994) (Table)
(holding that district court properly denied the petitioner’s § 2255 motion as premature where his
appeal was pending when he filed his § 2255 motion) (citations omitted).
This Court has recently rejected as premature a § 2241 petition filed under similar
circumstances. In Denton v. U.S. Atty. Gen., No. 6:12-CV-219-DCR, 2012 WL 5450034, at *1
(E.D. Ky. Nov. 7, 2012), the prisoner filed a § 2241 petition in this Court, seeking relief from his
various Alabama federal convictions at the same time his direct appeal of those convictions was
pending before the Eleventh Circuit Court of Appeals. [Id., at *1] Judge Danny C. Reeves denied
Denton’s § 2241 petition as premature, stating:
Here, Denton's convictions are being challenged on direct appeal, making even a
motion for relief under § 2255 premature.
....
In summary, Denton must complete the appellate process before seeking relief via
§ 2255, a step he must take before he may make even a colorable argument for the
availability of a remedy under § 2241. Charles v. Chandler, 180 F.3d 753, 756 (6th
Cir. 1999); White v. Grondolsky, No. 6: 06–309–DCR, 2006 WL 2385358, at *3
(E.D.Ky. Aug. 17, 2006).
Denton, 2012 WL 5450034, at *1.
Heard’s case is in the same procedural posture as Petitioner Denton’s case was in November
2012. Like Petitioner Denton, Heard must first complete the appellate process as to his criminal
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convictions, and assert his various Fourth and Fifth Amendment challenges in that proceeding. If
dissatisfied there, Heard may collaterally challenge his conviction and sentence by filing a timely
motion in this Court, seeking relief under 28 U.S.C. § 2255. Only after Heard exhausts both of those
avenues of relief may he petition a district court for the extraordinary relief under § 2241.
CONCLUSION
Accordingly, the Court being advised, IT IS ORDERED as follows:
(1)
The Clerk of the Court shall TERMINATE Rodney Ballard as the respondent, and
shall SUBSTITUTE Shannon Withers, Acting Warden of USP-McCreary, as the respondent herein.
(2)
Marquis Deron Heard’s 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus [R. 1]
is DENIED as PREMATURE.
(3)
This action is DISMISSED WITHOUT PREJUDICE to Heard’s right to assert the
same constitutional claims in his pending criminal appeal, Sixth Circuit Court of Appeals as Case
No. 13-5649, or, if appropriate, after he has exhausted other available remedies.
(4)
Judgment will be entered contemporaneously with this Memorandum Opinion and
Order in favor of the Respondent, Shannon Withers, Acting Warden of USP-McCreary.
(5)
For informational purposes, the Clerk of the Court is directed to provide Andrew M.
Stephens, Heard’s court-appointed counsel in the criminal action (11-CR-73-KKC), with a copy of
this Memorandum Opinion and Order and with a copy of Heard’s § 2241 habeas petition [R. 1].
This August 2, 2013.
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