Mays v. Holland
Filing
3
MEMORANDUM OPINION & ORDER: (1) Petitioner Anthony Gene Mays's 28 U.S.C. § 2241 petition for a writ of habeas corpus (Doc. # 1 ) is DENIED. (2) Mays's motion for the appointment of counsel (Doc. # 2 ) is DENIED AS MOOT. (3) This action is DISMISSED and STRICKEN from the Court's docket. (4) Judgment shall be entered contemporaneously herewith. Signed by Judge David L. Bunning on 07/08/2014.(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. 14-17-DLB
ANTHONY GENE MAYS
vs.
PETITIONER
MEMORANDUM OPINION AND ORDER
WARDEN J.C. HOLLAND
RESPONDENT
****
I.
****
****
Introduction
Anthony Gene Mays ("Petitioner") is an inmate currently confined in the United
States Penitentiary-McCreary in Pine Knot, Kentucky. Mays, proceeding pro se, has
petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the legality
of his federal conviction. (Doc. # 1). Mays has also moved for the appointment of counsel.
(Doc. # 2).
The Court conducts an initial review of habeas petitions, and will dismiss those
petitions that are meritless on their face. 28 U.S.C. § 2243; Allen v. Perini, 424 F.2d 134,
141 (6th Cir.1970). The Court evaluates the 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
Petitioner's factual allegations as true, and construes all legal claims in his favor. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
1
Despite taking a liberal approach to Petitioner's claims, the Court will dismiss them.
His § 2241 petition cannot succeed, and the Court will also deny as moot his motion for the
appointment of counsel.
II.
Factual and Procedural Background
On April 27, 2010, a federal jury in Arkansas found Petitioner guilty of three federal
offenses: being a felon in possession of a firearm, attempting to kill an officer of the United
States Government, and carrying a firearm in relation to a crime of violence. Jury Verdict,
United States v. Mays, No. 4:10-CR-055 (E.D. Ark. 2010), ECF No. 20. At Petitioner's
sentencing hearing on October 25, 2010, the district court imposed a 120-month sentence
on Count 1, a 240-month sentence on Count 2 (ordered to run consecutively to the Count
1 sentence), and a 120-month sentence on Count 3, ordered to run consecutively to the
sentences on Counts 1 and 2, for a total sentence of 480 months. Judgment, Mays, No.
4:10-CR-055, ECF No. 29.
Petitioner appealed, contending that the trial court had erred in denying his motion
to suppress identification evidence and in overruling his objection raised pursuant to Batson
v. Kentucky, 476 U.S. 79 (1986), to the government's striking of two prospective jurors.
The Eighth Circuit rejected his arguments and affirmed the conviction. United States v.
Mays, No. 10-3385 (8th Cir. May 4, 2011) (unpublished).
Petitioner then moved the trial court to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. Mays claimed that he had received ineffective assistance
of counsel for various reasons, both at trial and on appeal. Pro Se Motion to Vacate, Set
Aside or Correct Sentence under 28 U.S.C. 2255, Mays, No. 4:10-CR-055, ECF No. 48.
On September 23, 2011, the trial court denied Petitioner's § 2255 motion and ordered that
2
no certificate of appealability would issue. Opinion and Order, Mays, No. 4:10-CR-055,
ECF No. 63. Petitioner then applied to the Eighth Circuit for a certificate of appealability,
and the Eighth Circuit referred the case to the district court to determine whether a
certificate of appealability should issue. Order of United States Court of Appeals for the
Sixth Circuit, Mays, No. 4:10-CR-055, ECF No. 66. On January 10, 2012, the district court
again determined that Petitioner was not entitled to a certificate of appealability, and the
Eighth Circuit concurred.
Order Denying Certificate of Appealability, Mays, No.
4:10-CR-055, ECF No. 67; Judgment of United States Court of Appeals for the Sixth
Circuit, Mays, No. 4:10-CR-055, ECF No. 68. The U.S. Supreme Court declined to review
the case. Letter from Clerk of the United States Court of Appeals for the Sixth Circuit,
Mays, No. 4:10-CR-055, ECF No. 71.
On January 24, 2014, Mays filed the present petition for habeas relief under § 2241.
(Doc. # 1)
III.
Discussion
Section 2241 is an odd–and ultimately unsuccessful–launching pad for Petitioner’s
claims. As a general rule, 28 U.S.C. § 2255 provides the correct avenue to challenge a
federal conviction or sentence, while § 2241 petitions challenge the execution of a
sentence, i.e., the Bureau of Prisons' calculation of sentence credits or other issues
affecting the length of his sentence. See United States v. Peterman, 249 F.3d 458, 461
(6th Cir. 2001); see also Charles v. Chandler, 180 F.3d 753, 755-56 (6th Cir. 1999). The
United States Court of Appeals for the Sixth Circuit has explained the difference between
the two statutes as follows:
3
[C]ourts have uniformly held that claims asserted by federal prisoners that
seek to challenge their convictions or imposition of their sentence shall be
filed in the [jurisdiction of the] sentencing court under 28 U.S.C. § 2255, and
that claims seeking to challenge the execution or manner in which the
sentence is served shall be filed in the court having jurisdiction over the
prisoner's custodian under 28 U.S.C. § 2241.
Terrell v. United States, 564 F.3d 442, 447 (6th Cir. 2009) (internal quotation marks
omitted). Accordingly, claims like the present one usually fall under 28 U.S.C. § 2255, not
§ 2241.
The "savings clause" in § 2255(e) provides a narrow exception to this rule, and it is
this savings clause that Petitioner hopes to invoke. Under this provision, a prisoner is
permitted to challenge the legality of his conviction through a § 2241 petition if his remedy
under § 2255 "is inadequate or ineffective" to test the legality of his detention. 28 U.S.C.
§ 2255(e). In practice, this means that a prisoner proceeding under § 2241 can implicate
the savings clause of § 2255 only if he alleges "actual innocence." Bannerman v. Snyder,
325 F.3d 722, 724 (6th Cir. 2003).
Petitioner claims that he is "actually innocent" of the offenses of which he was
convicted, because no reasonable juror would have convicted him in light of all of the
evidence. This flies in the face of both record and reality. In this case, a jury, presumably
a reasonable one, already found Petitioner guilty on all three counts of the indictment. And
Petitioner has said nothing that would lead the Court to question that jury's verdict. There
is no alleged fact of any kind that casts doubt on whether Mays committed the crime of
which he was accused. (See generally Doc. #1-1 (asserting various bases for Petitioner's
"actual innocence.").
4
When Petitioner does muster specific arguments, those arguments invariably fail.
For example, Petitioner states that in the district court order rejecting his § 2255 petition,
the district court "failed to address" Petitioner's arguments regarding specific intent to kill.
(Id. at 4). Yet this is plainly false: the Eastern District of Arkansas district court discusses
the specific intent jury instructions and notes that Mays failed to argue that those
instructions contained any errors. Opinion and Order at 3, Mays, No. 4:10-CR-055, ECF
No. 63. Indeed, that district court devoted multiple pages to compiling the evidence
produced against Petitioner at trial. (See id). That voluminous evidence, combined with
the entirely proper jury instructions regarding specific intent, effectively demolish
Petitioner's argument that no reasonable juror could convict him. The Court reminds
Petitioner that it is not federal judges who determine whether the government has carried
its burden. Jurors make that determination, and the jury in Petitioner's case adjudged him
guilty.
Much of the petition effectively repackages ineffective assistance of counsel claims
(claims he raised in his § 2255 motion) as support for "actual innocence." Such a tactic is
impermissible. Several courts have explicitly rejected reliance on ineffective assistance of
counsel to invoke § 2255's savings clause. See, e.g., Taylor v. Lamanna, 27 F. App'x 283,
284 (6th Cir. 2001); Ball v. Conner, 83 F. App'x 621, 622 (5th Cir. 2003). As the Sixth
Circuit has held, "the remedy under § 2255 is not rendered inadequate or ineffective simply
because a petitioner has been denied relief under § 2255" in an earlier proceeding. Taylor,
27 F. App'x at 285.
To successfully assert "actual innocence," Petitioner must convince the Court that
something has changed. Perhaps some new fact has come to light that was unavailable
5
at trial. Or perhaps there has been "an intervening change in the law that establishes his
actual innocence." Enigwe v. Bezy, 92 F. App'x 315, 317 (6th Cir. 2004). Petitioner points
to nothing of the sort in his present complaint. His habeas petition is nothing more than an
attempt to get another bite of the forbidden apple. That is not what the § 2255 savings
clause aims to do, and no matter how liberally the Court construes his complaint,
Petitioner's claims of "actual innocence" are nothing more than bald assertions combined
with arguments that were appropriately rejected by other courts. Because of that, the Court
will dismiss his petition.
IV.
Conclusion
For the reasons discussed above, IT IS ORDERED as follows:
(1)
Petitioner Anthony Gene Mays's 28 U.S.C. § 2241 petition for a writ of habeas
corpus (Doc. # 1) is DENIED.
(2)
Mays's motion for the appointment of counsel (Doc. # 2) is DENIED AS
MOOT.
(3)
This action is DISMISSED and STRICKEN from the Court's docket.
(4)
Judgment shall be entered contemporaneously herewith.
This 8th day of July, 2014.
G:\DATA\ORDERS\London\2014\14-17 MOO.wpdG:\DATA\ORDERS\London\2014\14-17 MOO.wpd
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?