Lewis v. Warden, FCI Manchester

Filing 3

MEMORANDUM OPINION AND ORDER: 1) Petitioner Larry E. Lewis's 28 U.S.C. § 2241 petition for writ of habeas corpus [R. 1] is DENIED; 2) This action is DISMISSED and STRICKEN from the Court's docket; 3) Judgment shall be entered contemporaneously with this MOO in favor of Respondent. Signed by Judge David L. Bunning on 11/21/2014.(RC)cc: COR, paper copy to pro se filer

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
LARRY E. LEWIS,

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Petitioner,
v.
J.C. HOLLAND, WARDEN,
Respondent.
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Civil Action No. 14-64-DLB

MEMORANDUM OPINION
AND ORDER

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Larry E. Lewis is an inmate confined at the Federal Correctional Institution in
Manchester, Kentucky. Proceeding pro se, Lewis has filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241 [R. 1], challenging his conviction and the enhancement of his
federal sentence based on a prior state court drug conviction. Lewis requests that his conviction
and sentence under 21 U.S.C. § 841(b)(1)(A) be vacated.
In conducting an initial review of habeas petitions under 28 U.S.C. § 2243, the Court
must deny the relief sought “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)). Because Lewis is
not represented by an attorney, the Court evaluates 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).

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Thus, at this stage of the proceedings, the Court accepts Lewis’s factual allegations as true and
liberally construes his legal claims in his favor.
Having reviewed the petition, the Court must deny it because Lewis cannot pursue his
claims under 28 U.S.C. § 2241.
BACKGROUND
In October of 1999, a jury in the Northern District of Florida convicted Lewis of
conspiracy to possess with intent to distribute cocaine and cocaine base and two counts of
possession with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. §
841(a)(1). On October 25, 1999, he was sentenced to a term of 360 months imprisonment.1
United States v. Larry Lewis, Case No. 3:99cr30/RV (N.D. Fla. 1999). Lewis appealed, and his
conviction and sentence were affirmed on August 25, 2000. [R. 261 therein].
Subsequently, on May 11, 2005, Lewis filed a motion in the trial court pursuant to 28
U.S.C. § 2255, contending that his sentence should be vacated or set aside based on the then
recent Supreme Court decision in United States v. Booker, 125 S.Ct. 738 (2005). [R. 292
therein]. On June 28, 2005, Lewis’s § 2255 motion was denied as being time-barred. [R. 294].
CLAIMS ASSERTED IN § 2241 PETITION
Lewis filed the present habeas petition on March 13, 2014, claiming that he is actually
innocent of the offenses for which he was convicted under 21 U.S.C. § 841(a)(1). Lewis also
claims that the trial court unlawfully imposed an enhanced sentence under 21 U.S.C. §

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However, on June 18, 2009, the trial court reduced Lewis’s sentence, pursuant to 18 U.S.C. §
3582(c)(2), to 324 months. See United States v. Larry Lewis, Case No. 3:99cr30/RV (N.D. Fla. 1999) [R.
364 therein].
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841(b)(1)(A), based on a prior state court drug conviction for simple possession that should not
have been considered a prior felony drug offense.

A.

Actual innocence of 21 U.S.C. § 841(a)(1) offenses
In support of his claim that he is actually innocent of the offenses for which he was

convicted under 21 U.S.C. § 841(a)(1), Lewis relies primarily on Alleyne v. United States, 133 S.
Ct. 2151 (2013), and the Supreme Court’s recent decision in Burrage v. United States, 134 S.
Ct. 881 (2014), both of which post-date the finality of his conviction in the underlying criminal
case. Lewis contends that Alleyne and Burrage apply retroactively to his case. In Alleyne, the
Supreme Court applied its precedent in Apprendi and held that, if the existence of a particular
fact would increase the applicable mandatory minimum federal sentence, that fact is an
“element” of the crime that the jury must find beyond a reasonable doubt. Alleyne, 133 S.Ct. at
2155 (overruling Harris v. United States, 536 U.S. 545, (2002)).
B.

Erroneous enhancement of his sentence
To support his claim that the trial court erroneously enhanced his sentence based upon his

prior Florida state court conviction for simple possession, which no longer qualifies as a
predicate offense authorizing the enhancement of his sentence, Lewis relies on Descamps v.
United States, 133 S.Ct. 2276 (2013), and Moncrieffe v. Holder, 133 S.Ct. 1678 (2013). Because
both cases post-date the finality of his conviction in the underlying criminal case, Lewis
contends that Descamps and Moncrieffe apply retroactively.
In Descamps, the Supreme Court examined whether a state-law burglary conviction was
a “violent felony” within the meaning of the ACCA. Descamps, 133 S.Ct. at 2282. The Court
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held that sentencing courts may not apply the “modified categorical approach,” for purposes of
determining whether a prior conviction qualifies as a predicate offense under the ACCA, if the
crime of which the defendant was convicted has a single, indivisible set of elements. Id. at
2282–83 (describing the differences between the “categorical approach” and the “modified
categorical approach”). The Court clarified that a sentencing court “may use the modified
approach only to determine which alternative element in a divisible statute formed the basis of
the defendant's conviction.” 133 S.Ct. at 2293. Lewis argues that based on Descamps, his prior
state court conviction in Florida for simple possession no longer qualifies as a prior felony drug
conviction; therefore, the trial court erred in enhancing his sentence.
Lewis asserts that he is entitled to proceed with these claims in a habeas petition filed
under 28 U.S.C. § 2241 because “the remedy under § 2255 is inadequate and ineffective.” R. 1,
Page ID# 5.
DISCUSSION
As a general rule, 28 U.S.C. § 2255 provides the correct avenue to challenge a federal
conviction or sentence, whereas a federal prisoner may file a § 2241 petition if he is challenging
the execution of his sentence (i.e., the BOP’s 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 Sixth Circuit has
explained the difference between the two statutes as follows:
[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
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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). In
short, 28 U.S.C. § 2255 provides the primary avenue for federal prisoners seeking relief from an
unlawful conviction or sentence, not § 2241. See Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th
Cir. 2003).
The “savings clause” in § 2255(e) provides a narrow exception to this rule. 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). This exception does not apply if a prisoner fails to seize an
earlier opportunity to correct a fundamental defect in his or her convictions under pre-existing
law, or actually asserted a claim in a prior post-conviction motion under § 2255 but was denied
relief. Charles, 180 F.3d at 756. A prisoner proceeding under § 2241 can implicate the savings
clause of § 2255 if he alleges “actual innocence.” Bannerman v. Snyder, 325 F.3d 722, 724 (6th
Cir. 2003). However, a defendant may only pursue a claim of actual innocence under § 2241
when that claim is “based upon a new rule of law made retroactive by a Supreme Court case.”
Townsend v. Davis, 83 F. App’x 728, 729 (6th Cir. 2003). “It is the petitioner’s burden to
establish that his remedy under § 2255 is inadequate or ineffective.” Charles, 180 F.3d at 756.
Lewis implies that his previous § 2255 motion was inadequate or ineffective because
Alleyne, decided after that motion was denied, established a “constitutional right to have all
elements of the offense charged in the indictment and proven beyond a reasonable doubt to the
jury.” He also relies on Decamps to support his claim that the court unlawfully enhanced his
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sentence based on a prior conviction that did not qualify as a prior felony drug offense for
enhancement purposes under 21 U.S.C. § 841. However, there is no indication in any of these
recent Supreme Court cases (Alleyne, Burrage, Descamps, or Moncrieffe) that the Supreme
Court made those holdings retroactive to cases on collateral review, such as Lewis’s. Moreover,
Lewis “actual innocence” claim is based on the fact that the exact quantity of drugs involved was
not charged in the indictment and proved at trial. Lewis does not claim that he is factually
innocent of the underlying drug offenses for which he was convicted. In other words, he has not
alleged that he “stands convicted of ‘an act that the law does not make criminal.’” Carter v.
Coakley, No. 4:13 CV 1270, 2013 WL 3365139, at *3 (N.D. Ohio July 3, 2013) (quoting
Bousley v. United States, 523 U.S. 614, 623 (1998)).
The savings clause of § 2255 extends only to petitioners asserting a claim of actual
innocence regarding their convictions, not their sentences. Jones v. Castillo, 489 F. App’x 864,
866 (6th Cir. 2012) (“Claims alleging ‘actual innocence’ of a sentencing enhancement cannot be
raised under § 2241.”); see also Marrero v. Ives, 682 F.3d 1190, 1193 (9th Cir. 2012). Because
Lewis has failed to demonstrate that he is entitled to proceed under § 2241, the Court will
dismiss his petition.
Accordingly, IT IS ORDERED as follows:
1.

Petitioner Larry E. Lewis’s 28 U.S.C. § 2241 petition for a writ of habeas corpus
[R. 1] is DENIED.

2.

This action is DISMISSED and STRICKEN from the Court’s docket.

3.

Judgment shall be entered contemporaneously with this Memorandum Opinion

and Order in favor of the named Respondent.
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This 21st day of November, 2014.

G:DATA/ORDERS/London/2014/14-064/MOO dismissing 2241

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