Preston v. Holland
MEMORANDUM OPINION & ORDER: IT IS ORDERED that: 1. Preston's petition for a writ of habeas corpus [R. 1 ] is DENIED. 2. The Court will enter a judgment contemporaneously with this order. 3. This matter is STRICKEN from the docket. Signed by Judge Gregory F. VanTatenhove on 05/15/2015.(KJA)cc: COR, paper copy to pro se filer
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
WARDEN J. C. HOLLAND,
Civil No. 6: 15-01-GFVT
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Marshay Preston is a prisoner confined at the United States Penitentiary-McCreary in
Pine Knot, Kentucky. Proceeding without an attorney, Preston has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. [R. 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
Preston’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
On February 21, 2008, a federal grand jury sitting in Rochester, New York, issued a
superseding indictment charging Preston with possession with intent to distribute cocaine base in
violation of 21 U.S.C. § 841(a)(1) (Count 1); possession of a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c) (Count 2); and being a felon in possession of
several firearms in violation of 18 U.S.C. § 922(g) (Counts 3 and 4). United States v. Preston,
No. 6:07-CR-6128-DGL-MWP-1 (W.D.N.Y. 2007).
During a plea hearing on October 29, 2009, over the government’s objection the trial
court agreed to accept Preston’s nolo contendre plea to Counts 1 and 2 in the indictment and his
guilty plea to Counts 3 and 4. [R. 1-1, pp. 6-11] In an extensive presentencing memorandum
filed on February 1, 2011, Preston admitted that he had committed the charged offenses,
acknowledged that he had pled nolo contendre to Counts 1 and 2, and argued for a sentencing
range based upon his “no contest” plea to those charges. [R. 95 therein, pp. 2-3, 13, 21-22] On
February 22, 2011, the trial court sentenced Preston to a 144-month term of imprisonment on
Count 1, a consecutive 60-month term on Count 2, and to two 120-month terms of imprisonment
on Counts 3 and 4, to be served concurrently with each other and with Count 1. On direct
appeal, Preston contended that the trial court lacked a sufficient factual basis to accept his plea to
Count 2 and that his plea was not knowingly made. The Second Circuit rejected all of Preston’s
claims on appeal in a thorough opinion entered on October 1, 2012. United States v. Preston,
499 F. App’x 70 (2d Cir. 2012), cert. denied, 133 S. Ct. 1292 (2013).
In his current petition, Preston now argues that during the plea hearing, when he stated on
the record that he “wished” or “desired” to plead nolo contendre to Counts 1 and 2 in the
indictment, he did not actually so plead at that time, but expressed only his intention to do so at
some point in the future. [R. 1, pp. 8-10] Preston therefore argues that the trial court failed to
comply with Federal Rule of Criminal Procedure 11 in accepting his plea; that he never waived
his right to a jury trial on these counts; and that the judgment improperly indicates that he pled
“guilty” to these offenses. [R. 1, pp. 11-12] Preston therefore contends that his convictions
under Counts 1 and 2 violate the Fifth and Sixth Amendments to the United States Constitution.
[R. 1, p. 5]
Preston may not pursue his claims in a § 2241 petition. A petition filed under 28 U.S.C.
§ 2241 is reserved for challenges to actions taken by prison officials that affect the manner in
which the prisoner’s sentence is being carried out, such as computing sentence credits or
determining parole eligibility. Terrell v. United States, 564 F.3d 442, 447 (6th Cir. 2009). To
challenge the legality of a federal conviction or sentence, a prisoner must file a motion for postconviction relief under 28 U.S.C. § 2255 in the court that convicted and sentenced him. Capaldi
v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 2003). The prisoner may not use a habeas corpus
petition pursuant to 28 U.S.C. § 2241 for this purpose, as it does not constitute an additional or
alternative remedy to the one available under § 2255. Hernandez v. Lamanna, 16 F. App’x 317,
320 (6th Cir. 2001).
Under highly exceptional circumstances, the “savings clause” found in 28 U.S.C.
§ 2255(e) will permit a prisoner to challenge the validity of his conviction in a habeas corpus
proceeding under § 2241, but only where the remedy afforded by § 2255(a) “is inadequate or
ineffective” to test the legality of his detention. Truss v. Davis, 115 F. App’x 772, 773-74 (6th
Cir. 2004). This standard is not satisfied merely because the prisoner’s time to file a § 2255
motion has passed; he did not file a § 2255 motion; or he did file such a motion and was denied
relief. Copeland v. Hemingway, 36 F. App’x 793, 795 (6th Cir. 2002); Taylor v. Gilkey, 314
F.3d 832, 835 (7th Cir. 2002) (§ 2241 available “only when a structural problem in § 2255
forecloses even one round of effective collateral review ...”).
Instead, the prisoner must be asserting a claim of “actual innocence.” Such a 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. Hayes v. Holland, 473 F. App’x 501, 50102 (6th Cir. 2012) (“To date, the savings clause has only been applied to claims of actual
innocence based upon Supreme Court decisions announcing new rules of statutory construction
unavailable for attack under section 2255.”); United States v. Prevatte, 300 F.3d 792, 800-801
(7th Cir. 2002).
Preston’s claims, that he never entered a plea to the charges and that the trial court
violated Federal Rule of Criminal Procedure 11, are claims of ordinary trial error which he was
required to assert on direct appeal or in an initial motion under Section 2255. The Court
therefore lacks jurisdiction to entertain them in a habeas corpus petition filed pursuant to 28
U.S.C. § 2241. Holcomb v. Tamez, 464 F. App’x 343 (5th Cir. 2012); Bellomo v. United States,
344 F. Supp. 2d 429 (S.D.N.Y. 2004) (challenge to guilty as not voluntary and knowing not
cognizable under § 2241); Dillon v. Grondolski, No. 12-40082-TSH, 2012 WL 3139001 (D.
Mass. 2012). Preston’s petition must therefore be denied.
Accordingly, IT IS ORDERED that:
Preston’s petition for a writ of habeas corpus [R. 1] is DENIED.
The Court will enter a judgment contemporaneously with this order.
This matter is STRICKEN from the docket.
This 15th day of May, 2015.
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