Newton v. Holland

Filing 9

MEMORANDUM OPINION & ORDER: 1) Newton's petition for writ of h/c 1 is DENIED; 2) Court will enter jgm; 3) Matter stricken from the docket. Signed by Judge David L. Bunning on 1/29/2014.(MRS)cc: COR, Pro Se filer

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
CIVIL ACTION NO. 13-61-DLB
JOHN ALLEN NEWTON

vs.

PETITIONER

MEMORANDUM OPINION AND ORDER

WARDEN J.C. HOLLAND

RESPONDENT
*** *** *** ***

John Allen Newton is an inmate confined at the United States Penitentiary McCreary in Pine Knot, Kentucky. Proceeding without an attorney, Newton has filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. #1) The Court has
granted Newton’s motion to waive payment of the filing fee by prior order. (Doc. #6)
The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243;
Alexander v. 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 pursuant to Rule 1(b)). The
Court evaluates Newton’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). At this stage, the Court accepts the petitioner’s factual
allegations as true, and his legal claims are liberally construed in his favor. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

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On March 17, 1994, Newton was indicted in the Eastern District of California on two
counts of carjacking in violation of 18 U.S.C. § 2119(1), (2); two counts of using a firearm
during the commission of a crime of violence in violation of 18 U.S.C. § 924(c); and one
count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).
Following a jury trial, Newton was convicted on all counts on June 7, 1994. On September
26, 1994, Newton was sentenced to a 165-month term of incarceration on each of the
carjacking counts and on the felon-in-possession count, with all three terms to run
concurrently with one another. Newton was also sentenced to a 60-month term of
incarceration on the first § 924(c) count, and to a 240-month term of incarceration on the
second § 924(c) count, with each of those terms running consecutively to one another and
consecutively to the three other counts, for a total term of 465 months incarceration. United
States v. Newton, No. 1: 94-CR-5036-LJO-1 (E.D. Cal. 1994).1
The Ninth Circuit affirmed Newton’s convictions on direct appeal, concluding that his
convictions for both carjacking and for using a firearm during the commission of a crime of
violence did not violate the Double Jeopardy Clause, and that his carjacking convictions
were supported by sufficient evidence of a nexus to interstate commerce. United States
v. Newton, 65 F.3d 810 (9th Cir. 1995). The Supreme Court denied his petition for a writ
of certiorari on February 20, 1996. Newton v. United States, 516 U.S. 1137, 116 S. Ct.
965, 133 L. Ed.2d 886 (1996).
On December 17, 1996, Newton filed a motion seeking relief from his conviction
pursuant to 28 U.S.C. § 2255, primarily asserting ineffective assistance of counsel. The

1

Because records and information located on government websites are self-authenticating under
Fed. R. Evid. 902, the Court may take judicial notice of them. Cf. Williams v. Long, 585 F. Supp. 2d 679, 689
(D. Md. 2008); Rudisill v. Drew, No. 4:10-761-CMC-TER, 2010 WL 3222194, at *1 n.2 (D.S.C. July 21, 2010);
In re Katrina Canal Breaches Consol. Lit., No. 05-4182, 2008 WL 4185869, at *2 (E.D. La. Sept. 8, 2008).
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trial court denied this motion on January 30, 1997. In 2008, Newton filed a “Rule 60(b)”
motion to “re-open” his prior § 2255 proceeding, arguing that (1) the Supreme Court’s
decisions in Jones v. United States, 526 U.S. 227 (1999) and United States v. Lopez, 514
U.S. 549 (1995), rendered his carjacking convictions void for lack of jurisdiction; and that
the Supreme Court’s decision in Bailey v. United States, 516 U.S. 137 (1995) rendered his
§ 924(c) convictions for “use” of a firearm invalid. The trial court denied that motion, noting
that Jones is not retroactively applicable to cases on collateral review; that the Ninth
Circuit’s decision in his direct appeal came after the Supreme Court had already decided
Lopez; and that his Bailey claim was meritless because both the indictment and the proof
at trial showed that Newton had actively used firearms during the two carjackings. Newton
v. United States, No. CV-F-96-6366 EDP/OWW, 2008 WL 2225748 (E.D.Cal. May 28,
2008).
In his petition, Newton contends that “he was sentenced in excess of the statutory
maximum, 15 years, authorized by Congress for offenses committed in violation of 2119(1),
when the element of serious bodily injury is omitted from the indictment and/or jury
instruction.” Newton argues that, to sentence him to a term in excess of 15 years, Jones
required the government to allege death or serious bodily injury in the indictment and to
prove those allegations beyond a reasonable doubt to the satisfaction of the jury. (Doc. #11, p. 3)
As a threshold matter, Newton may not assert this claim in a habeas proceeding
under section 2241. Section 2241 is ordinarily limited to challenges to decisions by prison
officials which affect the manner in which a prisoner’s sentence is being carried out, such
as the computation of sentence credits or parole eligibility. United States v. Jalili, 925 F.2d

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889, 894 (6th Cir. 1999). If a federal prisoner wishes to challenge the legality of his
conviction or sentence he must file a post-conviction motion under 28 U.S.C. § 2255 with
the trial court. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 2003).
Section 2255(e) provides a narrow exception to this rule, and permits a prisoner to
challenge the legality of his conviction through a Section 2241 petition, but only where his
or her remedy under Section 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 the petitioner was convicted of violating in such a way that the
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, 2004 WL 1447645, *2 (6th Cir. 2004) (unpublished disposition). 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 Section 2255 and was denied relief.

Charles v.

Chandler, 180 F.3d 753, 756 (6th Cir. 1999); United States v. Prevatte, 300 F.3d 792, 800
(7th Cir. 2002).
The Supreme Court’s decision in Jones interpreted § 2119’s three subsections as
establishing three different offenses, each requiring proof of distinct elements, which must
therefore be proven to a jury, rather than merely stating circumstances to be considered
by a judge as sentencing factors. Jones, 526 U.S. at 232-240. The Supreme Court later
reiterated that, unlike Apprendi v. New Jersey, 530 U.S. 466 (2000), its decision in Jones

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was purely one of statutory interpretation. Ring v. Arizona, 536 U.S. 584, 600-02 (2002).
Jones therefore satisfies two of the requirements for the availability of a remedy under §
2241: it is a Supreme Court decision rendered after Newton’s conviction became final, and
was one involving the proper statutory interpretation of the statute of conviction.
However, nothing about the Jones decision rendered Newton’s conduct - carjacking
involving serious bodily injury - noncriminal. Rather, it merely changed the decisionmaker
from the judge to jury, and the burden of proof from a preponderance of the evidence to
beyond a reasonable doubt. Jones, 526 U.S. at 232. Like Apprendi, the change in the law
effected by Jones did not render Newton “actually innocent” of carjacking involving serious
bodily injury. Vieux v. Williamson, 250 F. App’x 519, 521-22 (3d Cir. 2007) (holding that
challenge to §2119(2) conviction under Jones is not cognizable in habeas proceeding
under § 2241); Jones v. Pugh, 43 F. App’x 217 (10th Cir. 2002) (same). Thus, while Jones
was a case of statutory interpretation unlike Apprendi, neither case provides a gateway
through § 2255(e)’s safety valve. Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir. 2003).
Even if this were not so, Newton’s claims would fail because they proceed from
factual premises refuted by the record. First, Newton was not sentenced in excess of the
statutory maximum. The statute of conviction provided:
Whoever, possessing a firearm as defined in section 921 of this title, takes
a motor vehicle that has been transported, shipped, or received in
interstate or foreign commerce from the person or presence of another by
force and violence or by intimidation, or attempts to do so, shall (1) be fined under this title or imprisoned not more than 15 years, or both,
(2) if serious bodily injury ... results, be fined under this title or imprisoned
not more than 25 years, or both, ...

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18 U.S.C. § 2119.2 Thus, in order to have been sentenced in excess of the statutory
maximum, Newton would have to have been sentenced to a term in excess of 15 years,
assuming a conviction under §2119(1). However, Newton was sentenced to a term of
incarceration of 165 months on both carjacking charges. United States v. Newton, No. 1:
94-CR-5036-LJO-1 (E.D. Cal. 1994) (Doc. #79, pp. 12-13 therein). This period is 13 years
and 9 months, which is less than the statutory maximum of 15 years permitted for
convictions under 18 U.S.C. § 2119(1), and far less than the 25-year statutory maximum
permitted for convictions under 18 U.S.C. § 2119(2).
Second, in Jones, the indictment did not allege that the carjacking victims had
suffered serious bodily injury, and no was such evidence put before the jury. Jones, 526
U.S. at 231. In contrast, Count I of Newton’s indictment charged him with carjacking
resulting in serious bodily injury in violation of § 2119(2); Count III charged Newton with
“simple” carjacking in violation of § 2119(1). Count I expressly included an allegation that
his conduct “result[ed] in serious bodily injury ...”, and the jury convicted him of this offense.
United States v. Newton, No. 1: 94-CR-5036-LJO-1 (E.D. Cal. 1994) (Doc. #79, pp. 8-9,
12-13 therein). Therefore none of the critical facts which compelled the outcome in Jones
occurred in Newton’s prosecution and conviction, and his assertions to the contrary are
flatly refuted by the record.
Finally, Newton’s petition makes a passing reference to Bailey v. United States, 516
U.S. 137 (1995), (Doc. #1-1, p. 4), but it is unclear whether he intends to re-assert his claim
that his convictions under § 924(c) for “use” of a firearm are invalid under Bailey. Newton

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In 1994, the statute was amended to substitute “with the intent to cause death or serious bodily
harm” for “possessing a firearm as defined in section 921 of this title.” Jones, 526 U.S. at 230 n.1. Because
Newton’s offense conduct occurred prior to the amendment, the prior version controlled Newton’s conviction
and guides this Court’s review of it.
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made this argument in his second motion under § 2255, which the trial court rejected in
2008 as factually baseless in light of the proof at trial that Newton had, in fact, actively
employed his weapon during both carjackings. Newton v. United States, No. CV-F-96-6366
EDP/OWW, 2008 WL 2225748 (E.D.Cal. May 28, 2008).
Apart from its merits, Newton is procedurally barred from pursuing a Bailey claim
under § 2241 because he cannot show that his remedy under Section 2255 was
“inadequate or ineffective” to assert his claim. Martin v. Perez, 319 F.3d 799, 804 (6th Cir.
2003). Newton’s conviction became final when the Supreme Court denied his petition for
a writ of certiorari on February 20, 1996. However, Bailey was decided on December 6,
1995, over two months before Newton’s conviction became final. Newton could therefore
have asserted his claim under Bailey by amending his petition for a writ of certiorari, as well
as by asserting a Bailey claim in his June 1996 motion to vacate his conviction under §
2255. Because Newton could have asserted his Bailey claim in his § 2255 motion but
failed to do so, he cannot demonstrate that his remedy was inadequate and ineffective to
test the legality of his detention. Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999).
Accordingly, IT IS ORDERED that:
1.

Newton’s petition for a writ of habeas corpus (Doc. #1) is DENIED.

2.

The Court will enter a judgment contemporaneously with this order.

3.

This matter is STRICKEN from the docket.

This 29th day of January, 2014.

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