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

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
JOHN FLOYD CAREY, Sr.,
Petitioner,
V.
FRANCISCO QUINTANA, Warden,
Respondent.
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Civil No. 5: 18-01-JMH

MEMORANDUM OPINION
AND ORDER

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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
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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.

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