Welch v. Holland

Filing 6

MEMORANDUM OPINION & ORDER: 1. Welch'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 Courts active docket. Signed by Judge David L. Bunning on 10/17/2013.(KJA)cc: COR, mailed paper copy to pro se filer

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
at LONDON
CIVIL ACTION NO. 13-76-DLB
FRANK JAMES WELCH, JR.

vs.

PETITIONER

MEMORANDUM OPINION AND ORDER

WARDEN J.C. HOLLAND

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

Frank James Welch, Jr. is an inmate confined at the United States Penitentiary McCreary in Pine Knot, Kentucky. Proceeding without an attorney, Welch has filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. #1).
The Court conducts an initial 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). 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 Welch’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 July 21, 1995, Welch was indicted by a federal grand jury sitting in the Southern
District of Alabama of conspiracy to tamper with, alter, remove, or obliterate the vehicle
identification number of a vehicle in violation of 18 U.S.C. § 13-5200; carjacking in violation
of 18 U.S.C. § 2119; use of a firearm during the commission of a crime of violence in
violation of 18 U.S.C. § 924©; and being a felon in possession of a firearm and use of that
firearm during the commission of a crime of violence in violation of 18 U.S.C. § 922(g).
Following entry of a guilty plea, on January 17, 1996, the trial court sentenced Welch to a
cumulative term of 360 months on the first three counts and a concurrent term of life
imprisonment without possibility of parole on the fourth count. The Eleventh Circuit
affirmed on direct appeal, and the trial court denied Welch’s motion for relief filed pursuant
to 28 U.S.C. § 2255. United States v. Welch, No. 1: 95-cr-142-RV-C-2 (S.D. Ala. 1995).
In his petition, Welch contends that he is actually innocent of violating 18 U.S.C.
§§ 2119(2), (3), because the indictment and jury instructions did not allege or require the
jury to find serious bodily injury or death as an element of the offense,1 which he contends
is contrary to Jones v. United States, 526 U.S. 227 (1999). (Doc. #1-1 at 3, 11, 14-15).
Welch may not assert this claim in a habeas proceeding under section 2241.
Section 2241 is limited to challenges to decisions made 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 889, 894 (6th Cir.

1

Welch has provided the first page of his indictment as an attachment to his petition, which
appears to refute at least one factual premise central to his claim: Count One of the indictment
charges Welch with conspiracy “to take, with the intent to cause death or serious bodily harm, a
motor vehicle ...” (Doc. #1-2, p. 1). Nonetheless, for purposes of this initial screening the Court will
accept as true Welch’s allegation that this element was not charged as an element of the offense
in the substantive carjacking count and was not found by the jury beyond a reasonable doubt.

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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
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 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, 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
was purely one of statutory interpretation. Ring v. Arizona, 536 U.S. 584, 600-02 (2002).
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Jones therefore satisfies two of the requirements for the availability of a remedy under §
2241: it is a Supreme Court decision rendered after Welch’s conviction became final, and
was one involving the proper statutory interpretation of the statute of conviction.
However, nothing about the Jones decision rendered Welch’s conduct - carjacking
involving serious bodily injury or death - noncriminal. Rather, it merely changed the
decision maker 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 Welch “actually innocent” of carjacking
involving serious bodily injury or death. 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);
see also Stevens v. Hastings, No. CV212-188, 2013 WL 2659879, at *1 (S.D. Ga. June 5,
2013). 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). Accordingly,
IT IS ORDERED as follows:
1.

Welch’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 Court’s active docket.

This 17th day of October, 2013.

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