Carey v. Quintana

Filing 7

MEMORANDUM OPINION & ORDER: 1) 1 Petition for writ of habeas corpus is DENIED. 2) Action is DISMISSED and STRICKEN from the Court's docket. 3) Court shall enter a Judgment with this Memorandum Opinion and Order. Signed by Judge Joseph M. Hood on 2/7/2018.(SCD)cc: Pro Se Petitioner via US Mail

Download PDF
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON JOHN FLOYD CAREY, Sr., Petitioner, V. FRANCISCO QUINTANA, Warden, Respondent. *** *** ) ) ) ) ) ) ) ) ) *** Civil No. 5: 18-01-JMH MEMORANDUM OPINION AND ORDER *** Federal inmate John Floyd Carey, Sr. has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. [R. 1] This matter is before the Court to conduct an initial screening of Carey’s petition. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F. App’x 544, 545 (6th Cir. 2011). In 2007, Carey was sentenced to 183 months imprisonment for arson, use of fire to commit a felony, and wire fraud. States v. Carey, No. 05-CR-230 (M.D. Pa. 2007). United On direct appeal, Carey complained that the trial court should not have allowed the prosecution to refer to the report of a non-testifying expert witness for the prosecution when cross-examining his own expert witnesses who had relied upon the report. The Third Circuit rejected that argument, concluding that the evidence was properly admitted as a foundation for his experts’ own opinion testimony. United States v. Carey, 337 F. App’x 256 (3d Cir. 2009). In his petition Carey presents a slight variation of the same argument, contending that permitting the questions violated his rights under the Confrontation Clause. [R. 1 at 4] However, Carey may not assert his claim in a § 2241 petition. To challenge the legality of a federal conviction or sentence, a prisoner must file a motion for post-conviction relief under 28 U.S.C. § 2255 in the court that convicted and sentenced him. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 2003). The prisoner may not use a habeas corpus petition pursuant to 28 U.S.C. § 2241 for this purpose, as it does not constitute an additional or alternative remedy to the one available under § 2255. Hernandez v. Lamanna, 16 F. App’x 317, 320 (6th Cir. 2001). 28 U.S.C. § 2255(e) provides a narrow exception for this rule if, after the prisoner’s conviction became final, the 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); Wooten v. Cauley, 677 F.3d 303, 307-08 (6th Cir. 2012). But Carey asserts a constitutional claim, and hence does not fit within this narrow exception. Cf. Todd v. Holland, No. 10- CV-53-HRW (E.D. Ky. 2010) (holding that claim under Confrontation Clause is not cognizable in a § 2241 petition), aff’d, No. 11-5052 (6th Cir. 2011); Streater v. Keller, No. 1: 12-CV-3007-WSD, 2013 2 WL 4482510, at *2 (N.D. Ga. 2013) (same); Ekanem v. United States, No. 3: 07-CV-346-L, 2007 WL 942089, at *2 (N.D. Tex. Feb. 26, 2007) (same); Saint v. Stine, No. 6: 05-CV-531-DCR, 2006 WL 197058, at *2 (E.D. Ky. 2006) (same). Accordingly, IT IS ORDERED as follows: 1. John Floyd Carey, Sr.’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1] is DENIED. 2. This action is DISMISSED and STRICKEN from the Court’s docket. 3. The Court shall enter a Judgment contemporaneously with this Memorandum Opinion and Order. This 7th day of February, 2018. 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?