Tatum v. Quintana

Filing 6

MEMORANDUM OPINION & ORDER: (1) The 1 28 USC 2241 petition for a writ of habeas corpus is DENIED. (2) The Court will enter an appropriate judgment. (3) This habeas proceeding is DISMISSED and STRICKEN from the Court's docket. Signed by Judge Joseph M. Hood on May 11, 2015. (AWD) cc: Petitioner via US Mail

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

EXIE TATUM, JR.,

)
)
)
)
)
)
)
)
)

Petitioner,
v.
FRANCISCO QUINTANA, Warden,
Respondent.
****

****

Civil Action No.
14-CV-447-JMH

MEMORANDUM OPINION
AND ORDER

****

****

Exie Tatum, Jr., is an inmate confined by the Bureau of
Prisons (“BOP”) in the Federal Prison Camp located in Duluth,
Minnesota.1

Proceeding without an attorney, Tatum has filed a

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241,
challenging his federal convictions and the consecutive 60-month
portion of his 190-month prison sentence.
The

Court

petitions.

conducts

an

initial

review

of

habeas

corpus

28 U.S.C. § 2243; Alexander v. Northern Bureau of

Prisons, 419 F. App’x 544, 545 (6th Cir. 2011).

1

The Court must

When Tatum filed this § 2241 proceeding in December 2014, he was
confined in the Federal Medical Center located in Lexington, Kentucky.
On April 7, 2015, Tatum notified the Court that he had been
transferred to the BOP facility in Duluth. [R. 5]
The Court must address Tatum’s § 2241 petition because jurisdiction
over a § 2241 petition is determined at the time the proceeding is
filed, and the subsequent transfer of the prisoner will not defeat
habeas jurisdiction. See White v. Lamanna, 42 F. App’x. 670, 671 (6th
Cir. 2002); Walker v. Hogsten, No. 10-CV-276-ART, 2011 WL 2149098, at
*2, n.2 (E.D. Ky. May 31, 2011).

1

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 Tatum’s § 2241 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).

The Court also

accepts Tatum’s factual allegations as true and construes his
legal claims in his favor.

Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555-56 (2007).
As

explained

below,

the

Court

will

deny

Tatum’s

habeas

petition because the claims which he asserts cannot be pursued
under 28 U.S.C. § 2241.
BACKGROUND
In

May

convicted

2007,

Tatum

a

of

federal

jury

possession

in

with

Milwaukee,
intent

to

Wisconsin,
distribute

controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(c) (Count I); possession of a firearm in furtherance
of

a

drug-trafficking

crime

in

violation

of

18

U.S.C.

§

924(c)(1)(A)(i) (Count II); and being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)

2

(Count III).

United States v. Exie Tatum, Jr., No. 2:06-CR-231-

RTR-1 (E.D. Wis. 2006) [R. 30, therein]
In August 2007, the Wisconsin district court entered an
Amended

Judgment

sentencing

Tatum

to

a

211-month

term

of

imprisonment, comprised of a 151-month sentence on Count I; a
concurrent 120-month sentence on Count III; and a consecutive
60-month sentence as to
Count II.

the § 922(g) firearm conviction on

[R. 40, therein (amending R. 37, therein)]

Tatum appealed, but on November 24, 2008, his conviction
was affirmed.
2008)

Tatum

United States v. Tatum, 548 F.3d 584 (7th Cir.
challenged

his

underlying

convictions

on

several

evidentiary grounds, but as to his 211-month sentence, he asked
only that it be remanded and recalculated under the revised
crack sentencing guidelines.2

Id. at 588.

The Seventh Circuit

refused to do so but informed Tatum that he was free to file a
motion in the district court under 18 U.S.C. § 3582(c)(2), and
request

a

sentence

Sentencing Guidelines.

reduction

under

Amendment

706

to

the

Id.

On November 19, 2009, Tatum filed a motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255.

Exie

Tatum, Jr. v. United States, No. 2:09-CV-1093-RTR (D. Wis. 2009)
2

Effective November 1, 2007, the United States Sentencing Commission
reduced offense levels in most crack cocaine cases by two levels. See
United States Sentencing Commission Guidelines Manual, Supplement to
Appendix C, 226-31 (2007) (Amendment 706).

3

[R. 1, therein].

The sole claim which Tatum asserted in his §

2255 motion was that during his criminal proceeding, he was
denied effective assistance of counsel in violation of his Sixth
Amendment
suppress

rights
the

drug

because

counsel

evidence

that

did
was

not

file

a

found

on

motion

his

to

(Tatum’s)

person during booking on February 1, 2005, and that was later
admitted into evidence at trial.

[Id.]

On November 30, 2009, the district court denied Tatum’s §
2255 motion, finding that it was “plainly without merit” because
his ineffective assistance of counsel claim was predicated upon
underlying contentions that the court of appeals had previously
considered on appeal, and rejected.
548

F.3d

at

587-88)].

Tatum

[R. therein (citing Tatum,

appealed

that

ruling,

but

the

Seventh Circuit dismissed the appeal and denied as moot the
motion for a certificate of appealability because Tatum failed
to pay the required docketing fee within the time prescribed.
[R. 13, therein; see also Exie Tatum, Jr., v. United States, No.
10-1285 (7th Cir. Mar. 3, 2010)]
On March 8, 2012, Tatum filed a motion seeking a reduction
of his sentence pursuant to 18 U.S.C. § 3582(c)(2).
2:06-CR-231-RTR-1

(D.

Wis.)

See Tatum

Criminal

Proceeding,

[R.

52,

therein]

On March 19, 2012, the district court granted Tatum’s

motion and reduced his total prison term from 211 months to 190
4

[R. 54, therein]3

months.

Tatum then supplemented his § 3582

motion with a request for an additional reduction, arguing that
the district court erred by not reducing his sentence under both
Amendment 706 and Amendment 750, and that the Federal Defender
Service rendered ineffective assistance of counsel by failing to
request a sentencing reduction in 2008, after Amendment 706 took
effect.

[R. 55, therein]

The
[R.

district

60,

therein]

affirmed.

[R.

court

denied

Tatum

66,

Tatum’s

appealed,

therein,

see

supplemental

but

also

the

Seventh

United

States

request.
Circuit
v.

Exie

Tatum, Jr., 500 F. App’x 508 (7th Cir. Jan. 8, 2013)]
CLAIMS ASSERTED IN § 2241 PETITION
In his § 2241 petition, Tatum argues that the district
court engaged in “double-counting” when it sentenced him for
being a felon in possession of a firearm and for possessing the
same

firearm

in

furtherance

Petition, [R. 1, p. 5; p. 7]

of

a

drug

crime.

See

§

2241

Tatum contends that the district

court allowed him to be charged with a § 922(g) firearm offense
and then improperly used that same firearm offense to enhance
his sentence under § 924(c).

Id., p. 9.

Tatum asserts that

“…when a single aspect of a defendant’s conduct determines both
3

The March 19, 2012, Amended Judgment does not specifically state, but
it appears that Tatum’s sentences under Counts I and III were reduced
from 190 months to 130 months, with the 60-month consecutive sentence
under § 924(c) (Count II) remaining intact, resulting in the amended
190-month sentence.

5

his offense level and triggers an enhancement, this constitutes
double counting.’”

Id., p. 14.4

Tatum next challenges the sufficiency of the evidence used
to convict him of the § 924(c) firearm offense.

He asserts that

because the firearm was found in cabinet which was not in close
proximity to the drugs which he was found to have possessed and
attempted

to

distribute,

conviction under § 924(c).
because
never

his

possession

actual,”

the

of

the

evidence

did

[Id., pp. 9-10]
the

firearm

government

was

not

support

his

Tatum contends that

was

unable

“constructive
to

and

“distinguish

separate aspects of his conduct,” id., p. 14, and thus failed to
carry its burden of proof that he used, carried or possessed a
firearm under § 924 (c).

[Id., pp. 9-10].

Finally, Tatum

contends that his sentence exceeds the statutory maximum, and
that the enhancements “... were not found by a jury.”

Id., p.

11.
4

Tatum explains his argument as follows:
It is evident from the direct appeal, and the Court of
Appeals’ summary of the case that the Petitioner was
sentenced to 151 months for felon in possession of a
firearm.
The same firearm that yielded an additional 60
month sentence for being used to further a drug trafficking
crime.
The question before this Court is does this constitute an
impermissible sentence above the statutory maximum along
with the fact it constitutes… “double counting” ??

Id., p. 12.

6

Tatum thus alleges that both his underlying conviction and
his resulting consecutive 60-month sentence on Count II violates
his

right

to

due

process

of

law

guaranteed

by

the

Fifth

Amendment of the U.S. Constitution, and his right to have all
facts determined by a jury, guaranteed by the Sixth Amendment of
the U.S. Constitution.
In this § 2241 proceeding, Tatum seeks an order finding
that the consecutive 60-month portion of his 190-month sentence
was the result of “impermissible ‘double counting.’”
14.

Id., p.

Tatum asks this Court to vacate that portion of his 190-

month sentence.

Id.
DISCUSSION

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 or other issues affecting the
length of his sentence).

See United States v. Peterman, 249

F.3d 458, 461 (6th Cir. 2001); see also Charles Chandler, 180
F.3d

753,

755-56

(6th

Cir.

1999).

The

Sixth

Circuit

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
7

has

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.

See

Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 2003).
The

“savings

clause”

in

§

2255(e)

provides

a

narrow

exception to this rule. Under this provision, a prisoner is
permitted to 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.
2255(e).

28 U.S.C. §

This exception does not apply where a prisoner fails

to seize an earlier opportunity to correct a fundamental defect
in his or her convictions under pre-existing law, or actually
asserted a claim in a prior post-conviction motion under § 2255
but was denied relief.
Alternatively,

a

Charles, 180 F.3d at 756.
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 petitioner may only pursue a claim of actual

innocence under § 2241 when that claim is “based upon a new rule
8

of law made retroactive by a Supreme Court case.”

Townsend v.

Davis,

“It

83

F.

App’x

728,

729

(6th

Cir.

2003).

is

the

petitioner’s burden to establish that his remedy under § 2255 is
inadequate or ineffective.” Charles, 180 F.3d at 756.
Tatum is not challenging the manner in which the BOP has
calculated the term of his sentence through the computation of
sentence credits or parole eligibility, issues which properly
fall under the ambit of § 2241.

Tatum instead challenges the

validity of his drug trafficking conviction on Count II under
the Fifth Amendment, alleging that insufficient evidence existed
to convict him of possession of a firearm in furtherance of a
drug-trafficking crime in violation of § 924(c). That argument,
however,

is

one

which

Tatum

could

and

should

have

asserted

either in the direct appeal of his conviction or in the § 2255
motion which he filed in the district court. Tatum would or
should have been aware of all facts relevant to that argument
either

when

he

appealed

his

criminal

conviction

latest, when he filed his §2255 motion.

or,

at

the

The decisions rendered

in those two proceedings, discussed previously herein, reflect
that Tatum did not assert that argument either on direct appeal
or in his § 2255 motion.
The

remedy

under

§

2255

is

not

inadequate

where

a

petitioner either failed to assert a legal argument in a § 2255
9

motion, or where he asserted a claim but was denied relief on
it.
App’x

Charles, 180 F.3d at 756-58; Rumler v. Hemingway, 43 F.
946,

additional,

947

(6th

Cir.

alternative,

provided in § 2255.

2002).

or

Section

supplemental

Id., at 758.

2241

remedy

is
to

not
the

an
one

See Lucas v. Berkebile, No.

7:11–28–HRW, 2012 WL 2342888, at *2 (E.D. Ky. June 19, 2012)
(“Section

2241

is

not

available

to

a

petitioner

who

merely

wishes to reargue claims considered and rejected in a prior
motion under Section 2255.”)

Because Tatum did not assert this

argument

had

previously

when

he

an

opportunity

to

do

so

on

direct appeal or in his § 2255 motion, he has not demonstrated
that his remedy under § 2255 was inadequate or ineffective to
challenge his federal detention.
The

same

result

obtains

with

respect

to

Tatum’s

other

argument, that the district court engaged in “double counting”
which

resulted

guidelines.

in
Tatum

a

sentence
could

and

that

exceeded

should

have

the

applicable

asserted

this

sentencing challenge either in the direct appeal of his criminal
conviction, or in his § 2255 motion.

Again, Tatum would or

should have known about all of the facts relevant to this claim
when he appealed his conviction and certainly by the time he
filed his § 2255 motion, but Tatum did not assert this claim in
either proceeding.
10

In his § 2241 petition, Tatum cleverly uses the term
“double

counting,”

perhaps

in

an

effort

to

characterize

his

argument as one which legitimately falls under the purview of §
2241, i.e., a challenge to the manner in which the BOP has
applied sentencing or jail-time credits.

But Tatum’s argument

herein is not one that involves the traditional calculation or
award

of

underlying

“sentence

sentence

credits;”

conviction
under

Count

and
II

Tatum

instead

resulting

was

argues

consecutive

substantively

and

that

his

60-month

procedurally

invalid and violated his Fifth and Sixth Amendment rights.
Even

liberally

construing

Tatum’s

argument

as

a

true

“sentencing claim” that rightfully falls under § 2241, it states
no grounds warranting relief.

The Court again notes that in

March 2012, the district court reduced Tatum’s sentence to 190
months,
750.

based

on

retroactive

changes

to

Guidelines

Amendment

On appeal, the Seventh Circuit affirmed and concluded that

the district court had applied all of the deductions to which
Tatum was entitled by reason of Amendment 750 to the federal
sentencing guidelines.

See Tatum, 500 F. App’x at 509.

A

federal court in a post-conviction proceeding can rely on the
factual conclusions made by an appellate court in the same case.
Smith v. Snyder, 22 F. App’x 552, 553 (6th Cir. 2001); Myers v.
United States, 198 F.3d 615, 619 (6th Cir. 1999)
11

Even so, to the extent that Tatum alleges that the district
court improperly calculated or enhanced his sentence for any
reason, he states no facts which would warrant relief under §
2241.

The Sixth Circuit has never extended to savings clause to

a § 2241 petitioner challenging the enhancement of his sentence;
in

fact,

uncertain

the

Sixth

terms):

Circuit

“Claims

has

repeatedly

alleging

‘actual

held

(and

innocence’

sentencing enhancement cannot be raised under § 2241.”
Castillo,

489

Saccoccia

v.

(rejecting

a

F.

App’x

864,

Farley,

573

§

habeas

2241

F.

866
App’x

(6th

Cir.

483,

petitioner’s

485

in

2012);
(6th

claim

no

of

a

Jones v.
see

Cir.

that

also
2014)

he

was

actually “innocent ‘of the aggravated sentence imposed by the
district court’” and concluding that he was not entitled to
relief under the savings clause), cert. denied, 135 S. Ct. 1000
(2015); Reminsky v. United States, 523 F. App’x 327, 329 (6th
Cir. 2013) (“The savings clause under § 2255(e) does not apply
to sentencing claims.”); Contreras v. Holland, 487 F. App’x 287,
288 (2012) (holding that prisoner’s challenge to his sentencing
enhancement under §§ 841 and 846 was not cognizable under §
2241); Brown v. Hogsten, 503 F. App’x 342, 343 (6th Cir. 2012)
(“[C]laims of sentencing error may not serve as the basis for an
actual innocence claim.”).

12

Finally, because Tatum does not point to any retroactively
applicable Supreme Court decision which would afford him relief
from his conviction, he has not alleged a viable claim of actual
innocence.

Therefore, to the extent that Tatum seeks collateral

relief from the 60-month portion of his 190-month sentence, this
Court cannot afford him such relief in this § 2241 proceeding.
In summary, because Tatum has neither demonstrated that his
remedy under § 2255 was inadequate to challenge his federal
conviction, nor established a claim of actual innocence, he is
not entitled to relief under § 2241.

Tatum’s habeas petition

will therefore be denied and this proceeding will be dismissed.
CONCLUSION
Accordingly, for the reasons discussed above, it is hereby
ORDERED as follows:
1.

The 28 U.S.C. § 2241 petition for a writ of habeas

corpus [R. 1] filed by Petitioner Exie Tatum, Jr. is DENIED.
2.

The Court will enter an appropriate Judgment.

3.

This habeas proceeding is DISMISSED and STRICKEN from

the Court’s docket.

13

This the 11th day of May, 2015.

14