Napier v. Quintana

Filing 5

MEMORANDUM OPINION & ORDER: (1) DENYING Napier's 1 Writ of Habeas Corpus; (2) matter is DISMISSED & STRICKEN from the docket; (3) judgment shall be entered. Signed by Judge Joseph M. Hood on 12/27/13.(KJR)cc: COR, Petitioner (US Mail)

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

LESTER NAPIER,
Petitioner,
v.
FRANCISCO J. QUINTANA, Warden,
Respondent.

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Civil Action No. 13-264-JMH

MEMORANDUM OPINION
AND ORDER

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Lester Napier (“Napier”) is an inmate confined in the Federal
Medical Center in Lexington, Kentucky.

Proceeding pro se, Napier

has filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241, challenging the legality of his conviction for being
a felon in possession of a firearm, in violation of 18 U.S.C. §

922(g)(1),

and

conviction.

his

enhanced

sentence

due

to

a

prior

drug

Napier has paid the $5.00 filing fee.

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
under Rule 1(b)).

The Court evaluates Napier’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), accepts his factual
allegations as true, and 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 it because
Napier’s claims are not properly raised in a petition under 28
U.S.C. § 2241.
BACKGROUND
On July 23, 2008, Napier and co-defendant James D. Morgan
were charged in a six-count indictment.

[See United States v.

Lester Napier, et al., Criminal No. 6:08-068-GFVT (E.D. Ky.
2008)].

Napier was charged in Counts 1, 2, 3, 5, and 6.

Count

1 charged both defendants with conspiracy to manufacture 100 or
more marijuana plants, in violation of 21 U.S.C. § 846; Count 2
charged them with manufacturing 100 or more marijuana plants, in
violation of 21 U.S.C. § 841(a)(1); Count 3 charged Napier with
possession with intent to distribute less than 50 kilograms of
marijuana, in violation of 21 U.S.C. § 841(a)(1); and Count 5
charged Napier with being a felon in possession of a firearm in
and affecting commerce, in violation of 18 U.S.C. § 922(g)(1).
In Count 6, the United States charged that this firearm was

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subject to forfeiture under 18 U.S.C. § 924(d)(1) and 28 U.S.C.
§ 2461.
Initially, Napier pled not guilty to the foregoing charges,
but he later entered into a plea agreement with the United
States

and

pled

guilty

to

Counts

1,

2,

5,

and

6

of

the

indictment, while the United States agreed to dismiss Count 3.
On September 11, 2008, the United States filed a Notice of Prior
Convictions, pursuant to 21 U.S.C. § 851, stating that Napier
had a prior drug

conviction, which increased the penalty range

for his sentence on Counts 1 and 2 from not less than 5 years
nor more than 40 years imprisonment to not less than 10 years
nor more than life imprisonment. [Id., at R. 20]. Napier was
sentenced

on

February

26,

2009,

and

received

96-month,

concurrent sentences of imprisonment on each of Counts 1, 2, and
5, to be followed by an 8-year term of supervised release.
[Id., at R. 41].
Napier did not appeal his conviction or sentence, and he did
not collaterally attack his conviction or sentence by filing a
motion to vacate, set aside, or correct sentence, pursuant to 28
U.S.C. § 2255.

On August 21, 2013, Napier filed the present

habeas petition.
CLAIMS ASSERTED IN § 2241 PETITION

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Napier’s petition is a mixed bag.

First, he appears to

claim that his counsel was ineffective for advising him to plead
guilty to being a felon in possession of a firearm in and
affecting commerce (Count 5 of the indictment), when his counsel
“knew or should have known” that he was “actually innocent” of
that offense as he “did not reside at the location and that he
was not in possession of the firearm in question.” [R. 1, p. 4].
Napier contends that had his counsel investigated this issue and
advised him correctly, the outcome would have been different,
and he would have been exonerated on Count 5. [Id.].

Based on

his statement that he is “actually innocent” of being a felon in
possession of the firearm charged in Count 5 of the indictment,
Napier may also be challenging the validity of his conviction on
that charge, impliedly arguing that, by reason of his counsel’s
ineffectiveness, his guilty plea thereto was not a knowing,
intelligent, and voluntary plea.

If he is, in fact, challenging

the validity of that conviction, he is requesting that such
conviction be vacated and set aside.
Second, he also appears to challenge the sentence imposed
on his convictions on Counts 1 and 2 of the indictment, claiming
that he is entitled to resentencing and a reduced sentence on
those convictions.

As grounds for this claim, Napier relies

primarily on the Supreme Court’s recent decision in Alleyne v.

4

United States, 133 S. Ct. 2151 (2013), which post-dates the
finality of his conviction in the underlying criminal case.

Napier asserts that he is entitled to proceed with these
claims in a habeas petition filed under 28 U.S.C. § 2241 because
28 U.S.C. § 2255 is “inadequate and ineffective to test the
fundamental legality of the petitioner’s detention . . .” [R. 1,
p. 1].
ANALYSIS
Napier 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).
Napier appears to challenge the validity of his conviction on
Count 5, contending that his guilty plea to Count 5 was not made
knowingly and voluntarily, and his enhanced sentence on Counts
1 and 2 of the indictment.

Having considered the matter

carefully, as more fully set out below, the Court concludes that
relief is unavailable to Napier under 28 U.S.C. § 2241 for
making the claims raised by Napier’s petition.
28 U.S.C. § 2255 provides the primary avenue for federal
prisoners

seeking

relief

sentence, not § 2241.

from

an

unlawful

conviction

or

Terrell v. United States, 564 F.3d 442,

447 (6th Cir. 2009) (“As a general rule, 28 U.S.C. § 2255

5

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; United States v.
Peterman, 249 F.3d 458, 461 (6th Cir. 2001); see also Charles v.
Chandler, 180 F.3d 753, 755-56 (6th Cir. 1999); credits or other
issues affecting the length of his sentence.”); Anderson v.
Hogsten, 487 F. App’x, 283, 2012 WL 5278595*1 (6th Cir. Oct. 26,
2012) (unpublished).
The “savings clause” in § 2255(e) provides a narrow exception
to this rule, permitting a prisoner to challenge the legality of
his conviction through a § 2241 petition if his remedy under § 2255
“is

inadequate

detention.

or

ineffective”

28 U.S.C. § 2255(e).

to

test

the

legality

of

his

This exception does not apply if

a prisoner fails to seize an earlier opportunity to correct a
fundamental defect in his or her convictions under pre-existing law
or

if

a

prisoner

post-conviction

actually

motion

under

Charles, 180 F.3d at 756.

asserted
§

2255

a
but

claim
was

in

denied

a

prior
relief.

A prisoner proceeding under § 2241 can

implicate the savings clause of § 2255 if he alleges “actual
innocence.”
2003).

Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir.

However, a defendant 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.”
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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.”

A.

Charles, 180 F.3d at 756.

Conviction on Count 5
Napier appears to claim that his counsel was ineffective for

advising him to plead guilty to Count 5, as he is “actually
innocent” of that offense.

Taking this claim to its logical

conclusion, Napier is also requesting that he be permitted to
withdraw his guilty plea to

Count 5, that Count 5 be dismissed

- due to his “actual innocence”- and that he be resentenced
without that conviction.
As previously stated herein, this claim essentially attacks
the validity of his conviction on Count 5 due to the ineffective
assistance of counsel, in that his counsel should have known
that

Napier

was

innocent

of

that

charged

offense

and

ineffective for advising him to plead guilty thereto.
claim is not cognizable in a habeas petition.

was
This

“Under 28 U.S.C.

§ 2241, a prisoner may challenge the execution of his sentence
or the manner in which his sentence is being served, but can not
challenge the conviction or sentence itself.”

Lee v. Rios, 360

F. App’x 625 (6th Cir. 2010) (citing Ali v. Tenn. Bd. of Pardon
& Paroles, 431 F.3d 896, 897 (6th Cir. 2005).

Additionally,

even if Napier’s conviction on Count 5 were vacated and set

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aside and he were resentenced without that 96-month sentence he
received on Count 5, it would not result in a reduction of his
overall sentence, as he also has two other 96-month, concurrent
sentences

to serve for his conviction on Counts 1 and 2 of the

indictment.
The bottom line is that Napier’s claim regarding Count 5 can
be raised in a § 2255 motion but not in a § 2241 habeas
petition.

His argument that he is entitled to proceed with this

claim in a § 2241 petition because he is “actually innocent” of
that offense and his reliance on Alleyne, supra, is misplaced in
that as a result of Alleyne, he does not presently stand
convicted of ‘an act the law does not make criminal.’ ”.

Carter

v. Coakley, No. 4:13 CV 1270, 2013 WL 3365139, at *3 (N.D. Ohio
July 3, 2013) (quoting Bousley v. United States, 523 U.S. 614,
623 (1998)).

In short, Alleyne did not decriminalize the

offense conduct charged in Count 5 of Napier’s indictment.
Napier’s guilt or innocence to the conduct charged in Count 5
did not change as the result of the Alleyne decision.
For these reasons, Napier’s claim as to Count 5 is without
merit.

Although the time in which Napier had to file a § 2255

motion in the trial court has expired, he nevertheless has the
option to move the trial court for leave to file a belated §
2255 motion as to his claim concerning his conviction on Count

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5 of the indictment.
B.

Conviction on Counts 1 and 2
Post-trial and prior to sentencing, on September 11, 2008,

the United States filed Notice of Prior Conviction, pursuant to
21

U.S.C.

§

851,

stating

that

Napier

had

a

prior

drug

conviction, which increased the penalty range for his sentence
on Counts 1 and 2 from not less than 5 years nor more than 40
years imprisonment to not less than 10 years nor more than life
imprisonment. [Id., at R. 20 therein] Even so, the Court imposed
concurrent 8-year (96 months) sentences on Counts 1 and 2 rather
than a 10-year sentence.

Napier appears to be claiming that

because the prior drug conviction referenced in the Notice of
Prior Conviction was not included as an element of the offense
that the jury must find beyond a reasonable doubt, he is
entitled to resentencing.
As support for his claim, Napier relies chiefly on the
Supreme Court’s recent decision in Alleyne, supra, wherein the
Supreme Court applied its precedent in Apprendi to hold that if
the existence of a particular fact would increase the applicable
mandatory minimum federal sentence, that fact is an “element” of
the crime that the jury must find beyond a reasonable doubt,
overruling

Harris

v.

United

Alleyne, 133 S. Ct. at 2155.

States,

536

U.S.

545

(2002).

Alleyne provides no support for

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this claim because Alleyne does not apply retroactively, United
States v. Potter, No. 7:13-7290-DCR, 2013 WL 3967960, at *3 (E.
D. Ky. July 31, 2013), and does not provide a basis for relief
under § 2241, Luney v. Quintana, No. 6:13-CV-3-DCR, 2013 WL
3779172, at *3 (E.D. Ky. July 18, 2013).

See also Carter v.

Coakley, No. 4:13 CV 1270, 2013 WL 3365139, at *4 (N.D. Ohio
July 3, 2013) (holding that because Alleyne is a “sentencingerror case,” it “does not decriminalize the acts which form the
basis of Petitioner’s conviction,” and therefore may not serve
as a basis for an actual innocence claim to fall within the
scope § 2241).
CONCLUSION
Because the claims Napier presents in his petition are
properly raised in a motion filed pursuant to 28 U.S.C. § 2255
but are not cognizable in a § 2241 habeas petition, it will be
dismissed.

Nevertheless, Napier still has the option of seeking

relief from the trial court via the belated filing of a § 2255
motion.

Accordingly, IT IS ORDERED that:
1.

Lester Napier’s 28 U.S.C. § 2241 petition for a writ of

habeas corpus [R. 1] is DENIED;
2.

This action is DISMISSED and STRICKEN from the Court’s

docket.

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3.

Judgment shall be entered this date in favor of the

Respondent.
This the 27th day of December, 2013.

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