Villarreal v. Holland
Filing
11
MEMORANDUM OPINION & ORDER: 1 Petitioner Arturo Villarreal's 28 U.S.C. § 2241 petition for a writ of habeas corpus [R. 1; as amended at R. 6] 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 Gregory F. VanTatenhove on 03/25/2016.(KJA)cc: COR, mailed paper copy to pro se filer
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
ARTURO VILLARREAL,
)
)
)
)
)
)
)
)
)
)
Petitioner,
v.
J. C. HOLLAND, Warden,
Respondent.
****
****
Civil Action No. 6:15-CV-177-GFVT
MEMORANDUM OPINION
&
ORDER
****
****
Petitioner Arturo Villarreal is an inmate confined by the Bureau of Prisons (“BOP”) in
the United States Penitentiary-McCreary in Pine Knot, Kentucky. Villarreal has filed a pro se
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1; supplemented at R. 6], in
which he challenges his federal drug and money laundering conspiracy convictions and his
resulting life sentence. Villarreal has paid the $5.00 filing fee. [R. 10.]
In conducting an initial review of habeas petitions under 28 U.S.C. § 2243, the Court
should 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)). However,
because Villarreal 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), overruled on other grounds, Jones v. Bock, 549 U.S. 199 (2007) At this
stage of the proceeding, the Court accepts Villarreal’s factual allegations as true and liberally
construes his legal claims in his favor. However, for the reasons set forth below, the Court
determines that Villarreal is not entitled to the relief which he seeks, and therefore his § 2241
habeas petition must be DENIED.
I
In January 1995, Villarreal was charged in federal court in Waco, Texas, with conspiracy
to possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1)
(Count One) and with conspiracy to launder money in violation of 18 U.S.C. § 1956(g) (Count
Two). United States v. Villarreal, No. 6:95-CR-7-WSS-1 (W.D. Tex. 1995). On May 9, 1995, a
superseding indictment was returned. [R. 430, therein.] On August 10, 1999, a second
superseding indictment was returned that amended Count One by expanding the dates of the
conspiratorial agreement and specifying that the conspiracy involved in excess of 1,000
kilograms of marijuana. Villarreal pleaded not guilty. At the conclusion of the trial which began
on September 13, 1999, the jury found Villarreal guilty as charged. On October 6, 2000, the
Trial Court sentenced Villarreal to: (1) a term of life imprisonment without release for his
conviction on Count One; (2) a concurrent term of 240 months of imprisonment for his
conviction on Count Two; and (3) ten years of supervised release.1
Villarreal appealed, but on September 7, 2001, the Fifth Circuit Court of Appeals
affirmed Villarreal’s conviction in an unpublished decision. United States v. Villarreal, 273 F.3d
1096, 2011 WL 1085194 (5th Cir. 2001). On March 4, 2002, the United States Supreme Court
denied Villarreal’s petition for writ of certiorari. Villarreal v. United States, 535 U.S. 910
(2002).
On March 5, 2003, Villarreal filed a motion in the district court, seeking to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255. U.S. v. Villarreal, No. 6:95-CR-7 (W.D.
1
The district court record does not explain the lapse of time between the jury verdict rendered on September 14,
1999, and Villarreal’s sentencing, which transpired a year later, in October of 2000.
2
Tex.) [R. 1189, therein.] The district court denied that motion on September 3, 2004. [R. 1208,
therein.] Villarreal appealed and requested a certificate of appealability to challenge the denial
of his § 2255 motion, see id., R. 1213, 1214, therein, but the Fifth Circuit denied Villarreal’s
motion. [R. 1219, therein; United States v. Arturo Villarreal, Jr., No. 04-51274 (5th Cir. Aug. 5,
2005).]
On March 20, 2009, Villarreal filed a motion to amend his § 2255 motion under Federal
Rule of Civil Procedure 15, for the purpose of adding two new claims, arguing that the claims
presented in his motion were meritorious and related back to the claims which he asserted in his
original § 2255 motion. [R. 1226, therein.] The district court denied the motion, see R. 1227,
therein, and Villarreal again appealed, see R. 1228, therein. On February 11, 2010, the Fifth
Circuit denied Villarreal’s motion for a certificate of appealability, concluding that Villarreal had
failed to make a substantial showing that he had been denied a constitutional right in relation to
any of his claims. [R. 1237, therein; United States v. Arturo Villarreal, Jr., No. 09-50699 (5th
Cir. Feb. 8, 2010).]
In May 2010, Villarreal filed a petition for writ of habeas corpus under 28 U.S.C. § 2241
in this Court. Arturo Villarreal v. Eric D. Wilson, No. 6: 10-CV-128-GFVT (E. D. Ky. 2010) [R.
2, therein] (“the First § 2241 Petition”). Villarreal argued in the First § 2241 Petition that (a) he
was actually innocent of the drug conspiracy offense because he was convicted of conspiring
with a confidential informant, which is a non-offense, and (b) the money laundering count
prejudicially tainted the drug conspiracy count because the jury was allowed to consider
evidence from two distinct conspiracies. [Id.]
3
On June 11, 2010, this Court denied the First § 2241 Petition, finding that Villarreal
could not proceed under § 2241 via the savings clause set forth in 28 U.S.C. § 2255(e) because
he had previously asserted the same claims in his § 2255 proceeding, and because he did not
allege a claim of actual innocence. [Id., R. 6 therein, reported at Arturo Villarreal v. Eric D.
Wilson, 2010 WL 2365302 (E. D. Ky. Jun. 11, 2010).] Villarreal appealed, but the Sixth Circuit
Court of Appeals affirmed the denial of the First § 2241 Petition, stating, “Villarreal simply does
not cite any intervening change in the law that establishes his innocence.” [Id., R. 12, therein;
Arturo Villarreal v. Eric D. Wilson, No. 10-5727 (6th Cir. Feb. 24, 2011). Three months later,
the Sixth Circuit denied Villarreal’s petition for rehearing. [Id., R. 13, therein.]
II
A
In his § 2241 petition and supplemental § 2241 petition, Villarreal alleges that he is
actually innocent of both the marijuana conspiracy charged in Count One of the second
superseding indictment and the money laundering conspiracy charged in Count Two of the
original indictment; that the prosecutor engaged in misconduct and “abused” the grand jury by
obtaining the second superseding indictment and by enlarging the time frame of the marijuana
conspiracy in violation of the applicable statute of limitations; that by not dismissing the
superseding indictment, the district court improperly allowed the prosecutor to “constructively
amend” the original indictment; and that the district court imposed an excessive sentence on both
counts of which the jury found him guilty.
Villarreal alleges that in his opening statement and closing argument, the federal
prosecutor made “flagrant, misleading and deliberate” comments “that allowed the jury to
4
convict Petitioner of cocaine and hahish [sic] not charged in the indictment.” [R. 1, p. 7.]
Villarreal contends that the federal prosecutor deceived the jury while eliciting testimony from
various government witnesses; that the district court gave improper and/or ambiguous jury
instructions; that the second superseding indictment did not relate back to the original
indictment; and that that the testimony and evidence offered against him at trial was insufficient
to support the jury’s guilty verdict. Broadly construed, Villarreal alleges that during all stages of
his criminal proceeding, he was denied due process in violation of his rights guaranteed by the
Fifth Amendment of the U.S. Constitution. Accordingly, Villarreal asks this Court to vacate his
sentence, dismiss the second superseding indictment, and release him from federal custody. [R.
1, p. 13; R. 6, p. 24.]
B
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
explains 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 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 as opposed to § 2241, provides the primary avenue for federal prisoners
5
seeking relief from an unlawful conviction or sentence. See Capaldi v. Pontesso, 135 F.3d 1122,
1123 (6th Cir. 2003). Here, Villarreal does not challenge the manner in which the BOP is
calculating or executing his sentence; instead, he again collaterally challenges the validity his
underlying conviction and sentence, just as he did in the First § 2241 Petition.
The “savings clause” of § 2255(e) provides a narrow exception to this general rule,
allowing a prisoner 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 failed to seize an earlier
opportunity to correct a fundamental defect in his or her convictions under pre-existing law, or if
he asserted the claim in a prior post-conviction motion under § 2255, but was denied relief.
Charles, 180 F.3d at 756. Alleging various process violations during his criminal proceeding,
Villarreal challenges his conviction and sentence under § 2241 via the “savings clause” of
§ 2255(e), but § 2241 is not the proper mechanism for asserting these claims.
A federal prisoner may challenge the legality of his detention under § 2241 only if his
remedy under § 2255(e) is inadequate or ineffective. See Wooten v. Cauley, 677 F.3d 303, 30607 (6th Cir. 2012); Charles, 180 F.3d at 756. The remedy under § 2255 is not deemed
inadequate or ineffective 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. Id. at 756-58; Rumler v.
Hemingway, 43 F App’x 946, 947 (6th Cir. 2002). It is the petitioner’s burden to establish that
his remedy under § 2255 is inadequate or ineffective. Charles, 180 F.3d at 756.
Villarreal has not carried that burden in this proceeding, because he either knew, or
should have known, of the detailed facts and circumstances surrounding his current Fifth
6
Amendment claims (challenging the alleged actions and omissions of both the district court and
the federal prosecutor) in March 2003, when he filed his § 2255 motion in the district court.
Villarreal could have asserted these claims in that § 2255 motion, but he did not do so;
alternatively, if Villarreal did assert his current claims in his § 2255 motion, the district court
dismissed them when it denied his § 2255 motion. Again, a federal prisoner may not use the
“savings clause” of § 2255(e) to challenge the legality of his conviction through a § 2241 petition
if his remedy under § 2255 was “inadequate or ineffective” to test the legality of his detention,
and that showing cannot be made if the prisoner either failed to present his claims in a § 2255
motion, or if he actually asserted the claim(s) under § 2255, but was denied relief on the claim(s).
Charles, 180 F.3d at 756.
Villarreal cannot seek another bite of the apple simply by asserting new arguments which
he could have but failed to assert in his § 2255 motion, or by re-asserting the same claims which
were previously rejected. Charles, 180 F.3d at 756-58; Graham v. Sanders, 77 F. App’x 799,
801 (6th Cir. 2003). Section § 2241 is not an additional, alternative, or supplemental remedy to
the one provided in § 2255. Charles, 180 F.3d at 758-60; see also Lucas v. Berkebile, No. 7:11CV-28-HRW, 2012 WL 2342888, at *2 (E.D. Ky. June 19, 2012) (“Section 2241 is not available
to a petitioner who merely wishes to reargue claims considered and rejected in a prior motion
under Section 2255.”). For these reasons, Villarreal has not established that his remedy under
§ 2255 was inadequate or ineffective” to test the legality of his detention.
Further, to the extent that Villarreal continues to challenge various aspects of his
concurrent sentences, Villarreal does not allege that he is actually innocent of the marijuana
conspiracy and money laundering offenses of which he was convicted; he instead challenges
7
only the amount of time which he was ordered to serve in prison. In other words, Villarreal does
not allege 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 (N.D. Ohio July 3, 2013) (quoting Bousley v.
United States, 523 U.S. 614, 623 (1998)).
The Sixth Circuit has never extended the savings clause to a § 2241 petitioner who
challenges only the enhancement of his sentence; in fact, the Sixth Circuit has repeatedly held
that claims alleging “actual innocence” of a sentencing enhancement cannot be raised under
§ 2241. Jones v. Castillo, 489 F. App’x 864, 866 (6th Cir. 2012); see also Reminsky v. United
States, 523 F. App’x 327, 329 (6th Cir. 2013) (“The savings clause under § 2255(e) does not
apply to sentencing claims.”); Hayes v. Holland, 473 F. App’x 501, 502 (6th Cir. 2012) (same);
Contreras v. Holland, 487 F. App’x 287, 288 (6th Cir. 2012) (holding that prisoner’s challenge
to his sentencing enhancement under §§ 841 and 846 was not cognizable under § 2241);
Anderson v. Hogsten, 487 F. App’x 283, 284 (6th Cir. 2012) (same); Brown v. Hogsten, 503 F.
App’x 342, 343 (6th Cir. 2012). Because the savings clause of § 2255 extends only to petitioners
who challenge their underlying convictions, not their sentences, Villarreal’s challenge to any
aspect of his sentence does not establish grounds for relief under 28 U.S.C. § 2241.
Alternatively, 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 petitioner 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.
8
The Supreme Court has unequivocally stated that “a new rule is not made retroactive to cases on
collateral review unless the Supreme Court holds it to be retroactive.” Tyler v. Cain, 533 U.S.
656, 663 (2001). Villarreal repeatedly alleges in his current § 2241 petition that he is “actually
innocent” of the two offenses of which the jury found him guilty, but he cites no case decided by
the Supreme Court which applies retroactively to him and which affords him relief from his
conviction and sentences.
Thus, Villarreal has not demonstrated either that his remedy under § 2255 was inadequate
or ineffective, or that he is actually innocent of the drug conspiracy and money laundering
offenses of which he was convicted. Because Villarreal is not entitled to relief from his
conviction and sentences under § 2241, his habeas petition will be denied and this proceeding
will be dismissed.
III
Accordingly, it is hereby ORDERED as follows:
1
Petitioner Arturo Villarreal’s 28 U.S.C. § 2241 petition for a writ of habeas
corpus [R. 1; as amended at R. 6] is DENIED.
2.
The Court will enter an appropriate Judgment.
3.
This habeas proceeding is DISMISSED and STRICKEN from the Court’s
docket.
This March 25, 2016.
9
10
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?