Riddick v. Holland
Filing
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MEMORANDUM OPINION & ORDER: 1. Harry Lee Riddicks 28 U.S.C. § 2241 petition for a writ of habeas corpus [R. 1 ] is DENIED; 2. The Court will enter an appropriate judgment; 3. This habeas proceeding is DISMISSED and STRICKEN from the Court's docket. Signed by Judge Karen K. Caldwell on 03/26/2014.(KJA)cc: COR, mailed paper copy to pro se filer
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT LONDON
HARRY LEE RIDDICK,
Petitioner,
Civil Action No. 13-CV-240
v.
MEMORANDUM OPINION
AND ORDER
J.C. HOLLAND, WARDEN,
Respondent.
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Harry Lee Riddick is confined in the United States Penitentiary-McCreary, located
Pine Knot, Kentucky. Proceeding without counsel, Riddick has filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1], challenging his federal convictions for
operating a continuing criminal enterprise, conspiracy to possess with intent to distribute
cocaine, distribution of cocaine in or near a school, and distribution of cocaine. Riddick has
paid the $5.00 filing fee. [Id.]
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 under Rule 1(b)). The Court
evaluates Riddick’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), accepts his factual allegations as true, and construes his legal claims in his
favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
Having reviewed the petition, the Court must deny it because Riddick can not pursue
his claims under 28 U.S.C. § 2241.
LITIGATION HISTORY
On February 6, 1996, a federal jury in Pennsylvania found Riddick guilty of one
count of engaging in a continuing criminal enterprise (21 U.S.C. § 848(a)), one count of
conspiring to distribute more than five kilograms of cocaine (21 U.S.C. § 846), thirteen
counts of distributing cocaine in or near a school (21 U.S.C. § 860(a)), and one count of
distribution of cocaine (21 U.S.C. § 841(a)(1)). United States v. Riddick, No. 2:94-CR-159JCJ-1 (E.D. Pa. 1994). On May 7, 1997, Riddick received a 396-month prison sentence.1
Riddick appealed the judgment, and the government cross-appealed, arguing that the
district court erred in calculating Riddick’s sentence. The appellate court affirmed Riddick’s
conviction, but vacated his sentence and remanded for re-sentencing.
United States v.
Riddick, 156 F.3d 505 (3rd Cir. 1998) On March 25, 1999, Riddick received a life sentence.
[R. 748, therein]
Riddick again appealed, but his appeal was dismissed for lack of
jurisdiction. United States v. Riddick, 210 F.3d 359 (3rd Cir. Feb. 11, 2000) (Table).
On May 16, 2001, Riddick filed a motion to vacate, set aside or correct sentence,
which the district court denied on January 31, 2003. See Riddick Criminal case [R. 925,
therein].
On October 23, 2003, the appellate court denied Riddick a certificate of
1
Because a substantial amount of activity in Riddick’s criminal proceeding predated the advent of the PACER electronic database system, this Court cannot electronically access and review any of the documents in that proceeding which were filed prior to
September 11, 2006. The Court can electronically access and review almost the entire docket sheet from that proceeding, starting
with the Superseding Indictment filed on August 12, 1994.
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appealability. [R. 940, therein] Over the next ten years, Riddick filed a series of successive §
2255 motions, and/or other pleadings construed as successive § 2255 motions, trying to
collaterally challenge his convictions on various legal grounds. See Riddick Criminal Case,
docket entries between February 2003 and April 2013 [R. 927-1029, therein]. The district
court construed all of those motions as unauthorized successive § 2255 motions and denied
them as such, and on appeal, the appellate court repeatedly denied Riddick a certificate of
appealability as to any of the claims he had asserted. [R. 927-1031, therein]
In April 2005, Riddick filed a prior § 2241 petition in a Texas federal court. Riddick
v. Miles, No. 1;05-CV-295-TH-ESH (E.D. Tex. 2005) Riddick collaterally challenged his
convictions based on the holdings of United States v. Booker, 543 U.S. 220(2005), Blakely v.
Washington, 542 U.S.(2004), and Richardson v. United States, 526 U.S. 813 (1999). On
May 24, 2005, the district court denied Riddick’s § 2241 petition. [R. 6 and 7, therein]
Riddick appealed, but the denial was affirmed. The appellate court explained that Riddick’s
Booker and Blakely claims did not fall under the “savings clause” of 28 U.S.C. § 2255, and
that because Riddick’s appellate brief indicated that he knew about the Richardson decision
before he filing his § 2255 motion in May 2001, “... he therefore could have raised his
Richardson issues in that motion and may not pursue them in a § 2241 petition. See ReyesRequena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).” [R. 21-2, therein; see also
Riddick v. Miles, 225 F. App'x 231, 232 (5th Cir. 2007)]
On October 1, 2013, Riddick filed a civil action in the District of Columbia,
demanding various agency records pursuant to the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552. Riddick v. Holland, No. 1:13-CV-01512 (D.D.C. 2013) (“the FOIA Action”).
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The district court determined that Riddick was also seeking habeas relief from his
convictions and dismissed those habeas claims, but allowed Riddick’s FOIA claims to
proceed. [R. 4, therein] The FOIA Action is currently pending, the district court having
recently established a briefing schedule in that case. [Id., see 3/18/14 “Minute Order” setting
various deadlines for July 2014.]
CLAIMS ASSERTED IN THE § 2241 PETITION
In the instant § 2241 petition, Riddick alleges that during the post-judgment phase of
his criminal proceeding in the Eastern District of Pennsylvania, he was denied due process of
law in violation of the Fifth Amendment of the U.S. Constitution, and was also denied
effective assistance of counsel in violation of the Sixth Amendment of the U.S. Constitution.
Riddick’s allegations on these issue are as follows: (1) in February 1996, his counsel failed
to provide him with (a) various “post-verdict motions” which he had filed on Riddick’s
behalf, and (b) the government’s responses to those motions; (2) the district court never ruled
upon various claims contained in those “post-verdict motions,” which, according to Riddick,
are pending as of this date; and (3) that because district failed to rule upon his post-verdict
motions, the Third Circuit Court of Appeals “... never properly acquired jurisdiction” to
affirm his convictions. See Riddick § 2241 Petition, [R. 1, pp. 5-9; R. 1-1, pp. 1-3, pp. 8-12]
Riddick further asserts that in an effort to remedy the alleged denial of his Fifth and
Sixth Amendment rights as outlined above, he filed the FOIA Action. Riddick alleges,
however, that the federal court in the District of Columbia has failed to properly address his
FOIA requests for documentation, and that it improperly dismissed his habeas claims without
addressing their merits. [R. 1-1, p. 3-8] Riddick asks this Court to direct the government to
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comply with his FOIA requests; to determine that his drug and CCE convictions are not
final; and to determine that the Third Circuit Court of Appeals lacked jurisdiction to affirm
his drug and CCE convictions. [R. 1, p. 8, § 15] Riddick also seeks an order releasing him
from federal custody. [Id.]
DISCUSSION
Riddick is not challenging the execution of his sentence, such as the computation of
sentence credits or parole eligibility, issues which fall under the ambit of § 2241. United
States v. Jalili, 925 F.2d 889, 894 (6th Cir. 1999).
Instead, Riddick challenges the
constitutionality of his underlying federal convictions and resulting sentence on Fifth and
Sixth Amendment grounds. But § 2241 is not the mechanism for asserting such a challenge:
28 U.S.C. § 2255(a) provides the primary avenue of relief for federal prisoners seeking relief
from 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, 4:10-CV-36, 2010 WL 3283018, at *6 (E.D. Tenn.
Aug. 17, 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 remedy under
Section 2255 “is inadequate or ineffective” to test the legality of his detention. The only
circumstance in which a petitioner may use this provision is where, after his 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 his actions did not violate the statute. Martin v.
Perez, 319 F.3d 799, 804 (6th Cir. 2003). See Barnes v. United States, 102 F. App’x 441,
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443 (6th Cir. 2004) (“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 where he did assert his claim in a prior postconviction motion under § 2255, but 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).
In his § 2241 petition, Riddick does nothing more than challenge the legality of his
convictions based on arguments that he either raised, or could and should have raised, in his
§ 2255 motion, or in the numerous other motions which he filed in the Eastern District of
Pennsylvania between February 2003 and April 2013. The alleged facts on which Riddick
bases his current Fifth and Sixth Amendment claims--that the district court failed to rule on
his post-judgment motions, and that the Third Circuit Court of Appeals lacked jurisdiction to
affirm his criminal convictions--either were, or should have been, known to him in 1997,
when he filed the direct appeal of his criminal convictions, or at the latest, when he filed his
§ 2255 motion in May 2001.
When the Third Circuit Court of Appeals affirmed Riddick’s conviction on
September 25, 1998, it addressed–and rejected– numerous legal claims which Riddick had
raised. On direct appeal, Riddick alleged that the district court had permitted an improper
variance between the indictment and the evidence introduced at trial; that the government
had produced insufficient evidence to support his convictions; that the Grand Jury had
considered improper testimony; that the district court had improperly denied his motion to
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suppress evidence; and that his conversations had been improperly monitored. Riddick, 156
F.3d at 508-510. It does not appear from the Third Circuit’s comprehensive, published
opinion that Riddick argued that the district court failed to address any of his post-verdict
motions; that his convictions were not final; or that the appellate court lacked jurisdiction to
entertain his appeal. Again, those claims either were, or should have been, known to Riddick
when he appealed his Pennsylvania criminal convictions.
Further, the district court denied Riddick’s § 2255 motion in which he either raised, or
could have raised his current claims, and during the ten-year period between 2003 and 2013,
it also denied Riddick’s other successive § 2255 motions challenging his convictions. On
appeal, the Third Circuit Court of Appeals consistently refused to issue Riddick a certificate
of appealability on any of his collateral challenges.
The remedy under § 2255 is not
inadequate where a petitioner either failed to assert a legal argument in a § 2255 motion, or
where he asserted a claim but was denied relief on it. Charles, 180 F.3d at 756-58. Section
2241 is not an additional, alternative, or supplemental remedy to the one provided in § 2255.
Id., at 758.
Thus, whether Riddick simply failed to assert his current Fifth and Sixth Amendment
claims in his § 2255 motion, or whether he in fact asserted those claims in his § 2255 motion,
but was denied relief on them, he is not entitled to relief under § 2241. See Lucas v.
Berkebile, No. 7:11–28–HRW, 2012 WL 2342888, at *2 (E.D. Ky. June 19, 2012) (“Section
2241 is not an available to a petitioner who merely wishes to reargue claims considered and
rejected in a prior motion under Section 2255.”)
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Alternatively, a prisoner proceeding under § 2241 can use the savings clause of §
2255 if he alleges “actual innocence,” Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir.
2003); Paulino v. United States, 352 F.3d 1056, 1061 (6th Cir. 2003). An actual innocence
claim can arise only where, 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. See Barnes v. United
States, 102 F. App’x 441, 443 (6th Cir. 2004) (“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). To make
this showing, the movant must allege a new rule of law made retroactive by a Supreme Court
case, such as the claim raised in Bailey v. United States, 516 U.S. 137 (1995). Townsend v.
Davis, 83 F. App’x 728 (6th Cir. 2003); United States v. Peterman, 249 F.3d. 458, 461 (6th
Cir. 2001).
Riddick does not, however, point to any retroactively applicable Supreme Court
decision which would afford him relief from his convictions. Riddick therefore has not
alleged a claim of actual innocence as to his drug and CCE convictions. Because Riddick
claims that his counsel failed to provide him with copies of “post-verdict” motions filed on
his behalf, and because Riddick is proceeding without an attorney, the Court will briefly
address two cases, Missouri v. Frye, ___U.S.___, 132 S.Ct. 1399 (2012), and Lafler v.
Cooper, ___ U.S. ___, 132 S.Ct. 1376 (2012),2 which discuss when a defendant may assert
2
In Frye, the Supreme Court held that defense counsel has a duty to communicate formal offers from the prosecution to accept a
plea on terms that may be favorable to the accused, prior to the offer’s expiration, and that 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). In Lafler, the defendant went to trial rather than accept a plea deal as a result of ineffective
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certain types of claims alleging ineffective assistance of counsel. Neither of these cases
assist Riddick, because even assuming he was denied effective assistance of counsel after he
was convicted, these cases do not announce a new constitutional rule, and therefore do not
apply retroactively to cases on collateral review. See In re Liddell, 722 F.3d 737, 738 (6th
Cir. 2013); Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir. 2012); In re King, 697
F.3d 1189 (5th Cir. 2012); Hare v. United States, 688 F.3d 878, 879 (7th Cir. 2012); In re
Graham, 714 F.3d 1181, 1183 (10th Cir. April 23, 2013).
Finally, to the extent that Riddick is attempting in this proceeding to obtain
government documents under FOIA, he cannot proceed under § 2241, which is limited in
scope to allowing a federal prisoner to challenge some aspect of the execution of his
sentence. The FOIA Action is currently pending in the District of Columbia, and Riddick
can pursue his FOIA claims in that proceeding.
In summary, Riddick has not established that his remedy under § 2255 was
inadequate or ineffective to challenge his federal detention, nor has he alleged a claim of
actual innocence. Therefore, Riddick is not entitled to proceed under § 2241, and the Court
will deny his petition and dismiss this proceeding.
CONCLUSION
Accordingly, IT IS ORDERED that:
1.
Harry Lee Riddick’s 28 U.S.C. § 2241 petition for a writ of habeas corpus [R.
1] is DENIED;
2.
The Court will enter an appropriate judgment; and
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.
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3.
This habeas proceeding is DISMISSED and STRICKEN from the Court’s
docket.
This March 26, 2014.
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