Colbert v. Ives

Filing 8

MEMORANDUM OPINION & ORDER: 1. William Colbert's 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus [R.1 ] is DENIED WITHOUT PREJUDICE. 2. The Court will enter an appropriate judgment. 3. This matter is STRICKEN from the active docket. Case Terminated. Signed by Judge Gregory F. Van Tatenhove on 4/30/2013.(RBB)cc: COR (paper copy to pro se party, William Colbert, via US Mail)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON

WILLIAM COLBERT,

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Petitioner,
V.
RICHARD B. IVES, Warden,
Respondent.
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Civil No. 12-99-GFVT

MEMORANDUM OPINION
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ORDER

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William Colbert is an inmate confined in the United States Penitentiary - McCreary in
Pine Knot, Kentucky. Proceeding without counsel, Colbert has filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241. [R. 1] The Court has reviewed the petition,1 but must
deny it as premature because Colbert is currently seeking essentially the same relief in another
proceeding pending in the district court in which he was convicted and sentenced.
I
On November 7, 2006, Colbert agreed to plead guilty to one count of distributing crack

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The Court conducts a preliminary 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). Because
Colbert is not represented by an attorney, the court reviews his petition under a more lenient
standard. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th
Cir. 2003). At this stage the court accepts Colbert’s factual allegations as true and liberally
construes his legal claims in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56
(2007). Once that review is complete, the Court may deny habeas relief “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 pursuant to Rule 1(b)). Otherwise, the Court may resolve the petition as law and justice
require. Hilton v. Braunskill, 481 U.S. 770, 775 (1987).

cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and waived his right to appeal and
collaterally attack his sentence. The district court in the Northern District of West Virginia
sentenced Colbert to a 151-month prison term to be followed by a three-year term of supervised
release. United States v. Colbert, No. 1:06-cr-94-JES (N.D. W. Va. 2006) [R. 32, 47 therein].
In January 2010, Colbert filed his first motion to vacate his sentence under 28 U.S.C.
§ 2255. Colbert argued that Brian J. Kornbrath, gave him erroneous advice about the potential
sentence he might receive, and after sentencing, Kornbrath failed to file an appeal on his behalf.
Consequently, the one-year statute of limitations for filing a § 2255 motion should be tolled. [R.
60 therein] In an amended § 2255 motion, Colbert alleged that his conviction resulted from a
defective plea which he entered because he was suffering from a mental disease or defect that
impaired his ability to plead guilty with a full understanding of the nature of the charge and its
consequences. Colbert further alleged that Kornbrath was ineffective for failing to notify the
sentencing court of his mental disease or defect and for failing to seek a competency
determination. [R. 81 therein]
In August 2011, a magistrate conducted an evidentiary hearing. Colbert, represented by
new counsel, appeared in person. Kornbrath testified by video. On September 19, 2011, after
considering the briefs and testimony, the magistrate issued a Report and Recommendation
(R&R) denying Colbert’s § 2255 motion. The magistrate concluded that Colbert had not carried
his burden of showing either that he had unequivocally instructed his attorney to file a notice of
appeal or that his attorney had a duty to consult under Roe v. Flores-Ortega, 528 U.S. 470
(2000). [R. 125, pp. 11-14 therein] The magistrate further concluded that even assuming
Colbert had instructed his attorney to file a notice of appeal, his claims were untimely and he had
failed to demonstrate that the one-year statute of limitations should be equitably tolled. [Id., pp.
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14-19] Colbert filed his objections to the R&R on December 12, 2011, to which the United
States responded on January 3, 2012. [R. 139, 142 therein]
On May 29, 2012, while his first § 2255 motion was pending, Colbert filed a second
§ 2255 motion in the sentencing court. In this motion, he alleged that Depierre v. United States,
131 S.Ct. 2225 (2011), Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (2010), Lafler v. Cooper,
132 S.Ct. 1376 (2012), and Missouri v. Frye, 132 S.Ct. 1399 (2012), substantively changed the
law, applied retroactively to cases on collateral review (such as his), and supported his allegation
that he had been denied effective assistance of counsel in violation of the Sixth Amendment. [R.
148, therein]
In DePierre, the Supreme Court held that the term “cocaine base” as used in 21 U.S.C.
§ 841(b)(1) refers not just to crack cocaine, but to all cocaine in its base form. DePierre, 131
S.Ct. at 2231-32. Colbert argued that under DePierre, he had been charged with and convicted
of a nonexistent drug offense, and that his conviction violated the his Fifth Amendment right to
due process of law.
In Carachuri–Rosendo, the Supreme Court held that a defendant who has been convicted
in state court for a subsequent simple drug possession offense, which was not enhanced based on
the fact of a prior conviction, had not been convicted of an aggravated felony under 8 U.S.C.
§ 1101(a)(43), so as to disqualify him for cancellation of removal. Id., 130 S. Ct. at 2589.
Colbert argued that based on Carachuri–Rosendo, the sentencing court had improperly
determined that he was a career offender, which enhanced his sentence. As a result, his sentence
violated the Due Process Clause of the Fifth Amendment.
In Frye, the Supreme Court held that defense counsel has the duty to communicate
formal offers from the prosecution to accept a plea on terms that may be favorable to the
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accused, prior to the offer’s expiration, and defense counsel’s failure to inform a defendant of a
written plea offer before it expired satisfies the deficient performance prong of the standard set
forth in Strickland v. Washington, 466 U.S. 668 (1986). Frye, 132 S.Ct. at 1409. The Court
further held that to show prejudice from ineffective assistance of counsel where a plea offer has
lapsed or been rejected because of counsel’s deficient performance, a defendant must
demonstrate a reasonable probability he would have accepted the earlier plea offer had he been
afforded effective assistance of counsel. Additionally, a defendant must demonstrate a
reasonable probability the plea would have been entered without the prosecution canceling it or
the trial court refusing to accept it. Id.
In Lafler, the defendant went to trial rather than accept a plea deal as a result of
ineffective assistance of counsel during the plea negotiation process. Lafler, 132 S.Ct. at 1386.
The defendant received a substantially more severe sentence at trial than he likely would have
received by pleading guilty. Id. The Court held that the proper remedy to cure the ineffective
assistance was to order the State to re-offer the plea agreement and allow the state trial court to
“exercise its discretion in determining whether to vacate the convictions and resentence
respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence
respondent accordingly, or to leave the convictions and sentence from trial undisturbed.” Id. at
1391. Colbert argued that because his counsel’s conduct fell within the parameters of Lafler and
Frye, he was entitled to relief from his conviction and sentence.
Colbert filed his § 2241 petition in this Court on May 22, 2012—one week before he
filed his second § 2255 motion in the sentencing court. Colbert’s § 2241 petition contains the
same arguments as those asserted in his second § 2255 motion: Kornbrath rendered ineffective
assistance of counsel in numerous regards during the plea bargaining process, and under
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DePierre, Lafler, Frye, and Carachuri- Rosendo, his Sixth Amendment rights were violated and
he did not knowingly and voluntarily plead guilty.
Colbert claims that Kornbrath provided him poor counsel on numerous issues. Bad
advice was given about the drug offense charged in the indictment and the potential sentence he
was facing. Kornbrath misled and deceived Colbert about the differences between cocaine and
cocaine base and tricked him into pleading guilty to a non-existent offense called “crack.”
Colbert also contends that had Kornbrath correctly advised him “of the true nature of cocaine,”
[R. 1-1, p. 3] he would have filed a motion to dismiss the indictment and proceeded to trial.
Kornbrath also failed Colbert by not advising him that he could have entered a conditional guilty
plea, reserving the right to appeal his prior state convictions that were used to enhance his federal
sentence. Kornbrath also neglected to challenge the federal charges under the Tenth
Amendment. Finally, Kornbrath’s poor guidance resulted in receiving a 10-year enhanced
sentence instead of a 5-year sentence.
On March 28, 2013, the sentencing court adopted the R&R and denied Colbert’s first
§ 2255 motion. [R. 152, therein] The sentencing court determined that Colbert’s ineffective
assistance of counsel argument did not justify equitably tolling the statute of limitations. Colbert
also failed to establish that either his placement in administrative detention or the alleged
confiscation of his legal materials by prison officials, both occurring in February 2008,
constituted grounds for equitable tolling. [Id., pp. 8-15]
On April 1, 2013, the magistrate issued an R&R indicating that Colbert’s second § 2255
motion should be denied. [R. 148, therein] The magistrate determined that Colbert’s § 2255
motion constituted a second § 2255 motion and that it was filed without the Fourth Circuit Court
of Appeals’ permission. Accordingly, the sentencing court lacked subject matter jurisdiction to
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consider Colbert’s second § 2255 motion. [R. 153, pp. 8-9, therein] While the magistrate did not
address the merits of Colbert’s legal claims, he described them as “repetitive and inapposite:”
[id., p. 8]
Petitioner’s reliance on the June 9, 2011 DePierre decision as a new rule of
constitutional law, previously unavailable when he filed his first §2255 petition,
made retroactive to cases on collateral review, is misplaced. DePierre is merely a
clarification of the terms of a criminal statute already in effect when petitioner
was convicted, an interpretation of the meaning, within 21 U.S.C.
§ 841(b)(1)(A)(iii) of “cocaine base” and “crack cocaine.”
....
Because DePierre did not give a new interpretation to 21 U.S.C.
§ 841(b)(1)(A)(iii), it provides no relief to petitioner. Further, the Fourth Circuit
ruled in United States v. Powell, 691 F.3d 554 (4th Cir. 2012), that neither
Carachuri nor Simmons were retroactively applicable to cases on collateral
review.
[Id., n. 9] The magistrate informed Colbert that he had fourteen days from April 1, 2013 in
which to file written objections to the R & R. [Id., p. 9] This time has since been extended on
motion of Colbert, and now his objections are due May 7, 2013. [R. 161, therein]
II
Colbert is not challenging any aspect of the execution of his sentence, such as the
computation of sentence credits or parole eligibility, issues which fall under the purview of §
2241. United States v. Jalili, 925 F.2d 889, 894 (6th Cir. 1999). Instead, he contends that his
drug convictions are invalid because he received ineffective assistance of counsel during the
plea-bargaining process. Section 2241 is not the mechanism for asserting such challenges: 28
U.S.C. § 2255(a) provides the primary avenue of relief for federal prisoners claiming the right to
release as a result of an unlawful conviction or sentence, Terrell v. United States, 564 F.3d 442,
447 (6th Cir. 2009), and is the mechanism for collaterally challenging errors that occurred “at or
prior to sentencing.” Eaves v. United States, 2010 WL 3283018, at *6 (E.D. Tenn. Aug. 17,

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2010).
Section 2255(e) provides a narrow exception to this rule, and permits a prisoner to
challenge the legality of his conviction through a § 2241 petition, where his or her remedy under
§ 2255 “is inadequate or ineffective” to test the legality of his detention. The only circumstance
where a prisoner may take advantage of this provision is where, after his or her conviction has
become final, the Supreme Court re-interprets the terms of the statute petitioner was convicted of
violating in such a way that petitioner’s actions did not violate the statute. Martin v. Perez, 319
F.3d 799, 804 (6th Cir. 2003) (“A prisoner who can show that an intervening change in the law
establishes his actual innocence can invoke the savings clause of § 2255 and proceed under
§ 2241.”); Lott v. Davis, 105 F. App’x 13, 14-15 (6th Cir. 2004). This exception does not apply
where the prisoner failed to seize an earlier opportunity to correct a fundamental defect in his
conviction under pre-existing law, or did assert his claim in a prior post-conviction motion under
§ 2255 and was denied relief. Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999).
Colbert cannot demonstrate that his remedy under § 2255 was either inadequate or
ineffective because his second § 2255 motion, in which he raised his Depierre, Lafler, Frye, and
Carachuri- Rosendo claims, is currently pending in the sentencing court. Moreover, his time for
filing objections to the R&R only began to run on April 1, 2013. The sentencing court must be
afforded a full opportunity to adopt, reject, or take other appropriate action as to the R&R and
any objections thereto. The sentencing court, and/or the Fourth Circuit Court of Appeals, should
be given the opportunity to address issues which the magistrate raised in his April 1, 2013 R&R.
It should also be noted that other prisoners have filed § 2241 petitions challenging their
convictions and sentences while they were simultaneously seeking relief via § 2255 motions and
this Court has consistently denied their § 2241 petitions as premature. See Besser v. Holland,
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No. 0:11-CV-70-HRW (E.D. Ky. 2011) (dismissing § 2241 petition as premature pending
resolution of petitioner’s § 2255 motion in the sentencing court), aff’d, 2012 WL 4121122 (6th
Cir. Sept. 20, 2012); Brandon v. Holland, 2011 WL 87183, at *1 (E.D. Ky. Jan. 6, 2011) (same);
White v. Grondolsky, 2006 WL 2385358, at *2 (E.D. Ky. Aug. 17, 2006) (same). Colbert’s
habeas petition will therefore be dismissed without prejudice to his filing another petition under
§ 2241 after the sentencing court or the Fourth Circuit Court of Appeals has addressed his two
§ 2255 motions.
Colbert is advised that just as the magistrate in the sentencing court recently indicated,
the merits of his arguments are extremely doubtful. The DePierre decision is not retroactively
applicable to cases on collateral review. Hughes v. United States, 2012 WL 3947606, at *1
(W.D. Ky. Sept. 10, 2012); United States v. Crump, 2012 WL 604140, at *2 (W.D. Va. Feb. 24,
2012). The two federal courts of appeal to have reached this issue have both held that claims
predicated upon DePierre are not cognizable in habeas petitions filed under § 2241. Wilson v.
United States, 475 F. App’x 530 (5th Cir. 2012); Fields v. Warden, FCC Coleman-USP 1, 2012
WL 2924020, at *2 (11th Cir. July 19, 2012).
Further, four federal courts of appeal have ruled that because Frye and Lafler do not
announce a new constitutional rule justifying a second or subsequent § 2255 petition, they are
not retroactively applicable to cases on collateral review. Buenrostro v. United States, 2012 WL
4784304, at *2 (9th Cir. Oct. 9, 2012) (holding that Frye and Lafler “did not break new ground
or impose a new obligation on the State or Federal Government”); In re King, 2012 WL
4498500, at *1 (5th Cir. Aug. 14, 2012); Hare v. United States, 688 F.3d 878, 879 (7th Cir.
2012); In re Perez, 682 F.3d 930, 932-33 (11th Cir. 2012); see also Robertson v. United States,
No. 7:10–cr–00054, 2012 WL 2930481, at *2 (W.D. Va. July 18, 2012) (Frye did not afford
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petitioner relief on collateral review because it “did not recognize a new right; rather, it applied a
long recognized right to the effective assistance of counsel to a particular set of facts.”).
As for Carachuri–Rosendo, the Supreme Court neither stated that the holding announced
a new rule nor held that it was retroactive to cases pending on collateral review. The Supreme
Court has concluded “that a new rule is not ‘made retroactive to cases on collateral review’
unless the Supreme Court holds it to be retroactive.” Tyler v. Cain, 533 U.S. 656, 663 (2001);
see also Brecht v. Abrahamson, 507 U.S. 619, 634 (1993) (“Although new rules always have
retroactive application to criminal cases on direct review, we have held that they seldom have
retroactive application to criminal cases on federal habeas.”) (internal citations and punctuation
marks omitted); Shaeffer v. United States, 2012 WL 1598061, *3-4 (E.D. Tenn. May 7, 2012)
(ruling that Carachuri–Rosendo is not retroactive to cases on collateral review).
For these reasons, Colbert is not entitled to relief under § 2241. The Court will deny his
habeas petition and dismiss this proceeding from the docket.
III
Accordingly, IT IS ORDERED that:
1.

William Colbert’s 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus [R.1 ] is

DENIED WITHOUT PREJUDICE.
2.

The Court will enter an appropriate judgment.

3.

This matter is STRICKEN from the active docket.

This 30th of April, 2013.

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