Alexander v. Ormond
Filing
7
MEMORANDUM OPINION & ORDER : 1. Petitioner's 28 U.S.C. § 2241 petition for a writ of habeas corpus (Doc. # 1) and the amended § 2241 petition (Doc. # 5) are DENIED; 2. This habeas proceeding is DISMISSED and STRICKEN from the Court's docket; and 3. Judgment shall be entered contemporaneously with this Memorandum Opinion and Order. Signed by Judge David L. Bunning on 08/28/2016.(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. 16-127-DLB
TOMMY ALEXANDER, SR.,
vs.
PETITIONER
MEMORANDUM OPINION AND ORDER
J. RAY ORMOND, WARDEN,
RESPONDENT
*** *** *** ***
Tommy Alexander, Sr., a/k/a Tommy Alexander, is an inmate confined by the
Bureau of Prisons at the United States Penitentiary – McCreary located in Pine Knot,
Kentucky. Proceeding without an attorney, Alexander has filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. # 1) and an amended § 2241
petition (Doc. # 5), challenging his classification as an “armed career criminal” and the
resulting seven concurrent life sentences which he is now serving. Because a § 2241
petition is not the proper vehicle for obtaining the relief sought, the habeas petition will
be denied.
I.
Factual and Procedural Background
In 1990, Alexander was convicted in federal court in Houston, Texas, of
numerous counts of manufacturing, distributing, and possessing with intent to distribute
controlled substances (cocaine base), plus a firearms count, and in May 1990, he was
sentenced to several concurrent terms of life imprisonment. United States v. Alexander,
1
No. 4:89-CR-331-1 (S.D. Tex. 1989).1 Alexander appealed, but in March 1992, the Fifth
Circuit Court of Appeals affirmed his convictions. In July 1992, Alexander filed a motion
to vacate his sentence under 28 U.S.C. § 2255, alleging the use of false testimony by
the prosecution, a Brady discovery violation, and ineffective assistance of counsel
during his criminal proceeding. In September 1992, the trial court denied that § 2255
motion without articulating reasons for its denial, Alexander appealed, and the matter
was remanded. United States v. Alexander, 987 F.2d 770 (5th Cir. 1993). On remand,
the trial court entered findings of fact on August 31, 1994, in support of its denial of the
§ 2255 motion. United States v. Alexander, Civ. No. H-92-1979, 1994 WL 494696 (S.D.
Tex. Aug. 31, 1994).
Since that time, Alexander has filed numerous unsuccessful post-conviction
motions in his criminal proceeding, and numerous § 2241 habeas petitions, attempting
to collaterally attack his conviction and sentence. In November 2011, the Fifth Circuit
warned Alexander that his frivolous, repetitive, and abusive filings related to relief under
§ 2255 would invite the imposition of sanctions. See United States v. Alexander, 451 F.
App’x 466, 468 (5th Cir. 2011). Undeterred, Alexander continued to seek relief under §
2255 based on frivolous arguments, which culminated in the Fifth Circuit sanctioning
Alexander by imposing a $100 fine, stating that until Alexander paid that fine, “he may
file no more appeals or initial pleadings challenging the validity of this conviction and
sentence, whether those challenges are governed by § 2241, § 2255, or any other
1
Because Alexander was sentenced in May 1990, many years before the advent and
implementation of the Public Access to Court Electronic Records (“PACER”) system, the federal
judiciary’s on-line database, the Court is unable to electronically view many of the pleadings and
orders, including the Criminal Judgment, entered in Alexander’s federal criminal proceeding.
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statutory provision, in this court or in any court under this court's jurisdiction.” United
States v. Alexander, 544 F. App’x 331, 332 (5th Cir. 2013).
In his § 2241 petition, Alexander first alleges that the district court should have
sentenced him under the applicable provisions of the United States Sentencing
Guidelines (“USSG”) instead of the Armed Career Criminal Act (“ACCA”), 18 U.S.C.A. §
924(e).2 Alexander first claims that at sentencing, the district court verbally stated that it
intended to sentence him to the maximum range under USSG § 4A1.1(a), not under the
ACCA, but that when it entered the Criminal Judgment, it imposed several concurrent
life sentences under the ACCA. (Doc. # 1-1 at 3-5). Second, Alexander contends that
at sentencing the district court treated four prior convictions for armed robbery, all of
which were sentenced on the same day in 1971, as four separate prior offenses under
the ACCA, instead of as one prior offense, and thus improperly calculated his sentences
under 18 U.S.C. §§ 922(g), 924(e)(1). (Id.). Third, Alexander claims that his § 922(g)
firearm sentences exceed the statutory maximum and violate the Due Process Clause
contained in the Fifth Amendment of the U.S. Constitution. (Id. at 5).
Fourth, Alexander claims that his “illegal sentences to Life Imprisonment are
being used by the Federal Bureau of Prisons to Disallow petitioner the right to receive
similar treatment while serving his sentence in violation of the 14th Amendment to the
U.S. Constitution.” (Doc. # 1 at 7). While suffering from a lack of clarity, this statement
suggests that Alexander may be alleging that the BOP has denied him equal protection
2
Generally, the ACCA increases sentences for certain offenders who have three prior
convictions for violent felonies or serious drug offenses. See 18 U.S.C.A. § 924(e)(1).
Specifically, the statute enhances the sentence of a person convicted of a § 922(g) firearm
offense, if that person has three previous convictions for a violent felony or serious drug offense,
or both, committed on different occasions from one another. Id.
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in violation of the Fifth Amendment of the U.S. Constitution. As supporting grounds for
this assertion, Alexander alleges that a United States Probation officer erroneously
concluded that he qualified as an armed career offender under 18 U.S.C. § 924(e), and
he again reiterates that the district court intended to sentence him under USSG §
4A1.2(a)(2)(B) instead of the ACCA. (Id.). In the “Request for Relief” section of his §
2241 petition form, Alexander seeks an order vacating his sentences “under Johnson
and Welch,” (without explaining how these cases pertain to him), and an order
remanding his case to the district court for an evidentiary hearing with the appointment
of counsel. (Id. at 8).
In his amended § 2241 petition (Doc. # 5), Alexander challenges the validity of
his § 922(g) conviction for being a felon in possession of a firearm, and points to his trial
counsel’s motion during his criminal proceeding, in which his counsel sought an
acquittal on Counts 11, 12, and 13 of the Indictment based on the government’s failure
to prove that Alexander possessed three different firearms.
(Id.).
Alexander also
challenges the sufficiency of the evidence used to convict him of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g). (Id.). Alexander attached the
affidavits of Paul Charles Looney (dated March 27, 2003) and Nelson Jason (dated April
16, 2002), who dispute the accuracy of the government witnesses’ testimony and
evidence submitted against Alexander at trial. (Doc. # 5-1 at 1-4). Alexander also
attached other excerpts from his criminal trial in which his counsel moved for a
judgment of acquittal on the various § 922(g) firearm counts. (Id. at 5).
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II.
Analysis
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 Alexander 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
proceedings, the Court accepts Alexander’s factual allegations as true and liberally
construes his legal claims in his favor.
As a general rule, 28 U.S.C. § 2255 provides the correct avenue to challenge a
federal conviction or sentence. A federal prisoner may file a § 2241 petition if he is
challenging the execution of his sentence (that is, 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 provided the following explanation of
the difference between the two statutes:
[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.
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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 seeking relief from an unlawful conviction or sentence.
See Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 2003).
The “savings clause” of § 2255(e) provides a narrow exception to this general
rule. Under this clause, a prisoner may 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 where a
prisoner failed 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 postconviction motion under § 2255 but was denied relief. Charles, 180 F.3d at 756.
In his § 2241 petition, Alexander is not challenging the manner in which the
Bureau of Prisons is executing his concurrent life sentences.
Instead, Alexander
challenges the sufficiency of the evidence used to convict him of the § 922(g) firearm
counts and the fact that he was sentenced under the ACCA instead of the USSG,
claiming that his sentence exceeds the statutory maximum.
In short, Alexander is
challenging the constitutionality of his conviction on Fifth and Sixth Amendment grounds
under § 2241 via the “savings clause” of § 2255(e). However, § 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 is inadequate or ineffective. See Wooten v. Cauley, 677 F.3d
303, 306-07 (6th Cir. 2012); Charles, 180 F.3d at 756. This exception does not apply
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where a prisoner failed 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 postconviction motion under § 2255 but was denied relief. Id. 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. 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.
Alexander has not carried that burden in this § 2241 proceeding. Alexander
challenges the sufficiency of the evidence presented against him during his criminal
trial; claims that he was improperly sentenced under the ACCA instead of the USSG;
claims that the district court treated his 1971 armed robbery offenses as four predicate
offenses instead of one; and claims that his concurrent life sentences exceed the
statutory maximum. Alexander either knew, or should have known, of the facts and
circumstances supporting all of these arguments when he filed his direct appeal of his
conviction to the Fifth Circuit,3 or at the latest, when he filed his § 2255 motion in the
3
Alexander has attached a copy of the Fifth Circuit’s March 16, 1992, opinion affirming his
conviction and sentence on direct appeal, in United States v. Alexander, No. 90-2508 (5th Cir.
Mar. 16, 1992). (See Doc. # 1-2 at 28-37). In that decision, the Fifth Circuit identified and
rejected as without merit the specific claims that Alexander raised on direct appeal, which were
claims alleging jury tampering; the district court’s improper discussion of the case with a juror;
the improper admission of a tape recording of a conversation with an alleged co-conspirator; the
improper admission of audio-tapes; the district court’s failure to sever the possession of firearm
counts from the drug counts; that the government failed to inform his trial counsel about a health
card bearing his name found near the guns found in his nightclub; the introduction of evidence
procured illegally without a search warrant; and that the district court improperly referred to him
as a “punk” at sentencing. (Id.). In his direct appeal, Alexander did not allege that he was
improperly sentenced under the ACCA instead of the USSG; that the district court improperly
treated his 1971 armed robbery offenses as four separate prior convictions instead of one prior
conviction; or that his sentence exceeds the statutory maximum.
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district court. None of Alexander’s arguments contain new facts or circumstances which
would warrant relief under § 2241. As Charles dictates, Alexander cannot use § 2241 to
recycle the same claims which either could have been asserted, or were asserted and
rejected in a § 2255 motion, because § 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. 7:11-CV-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.”).
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). 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. 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).
In his petition, Alexander invokes the holding of Johnson v. United States, __
U.S. __, 135 S. Ct. 2551 (2015), in which the Supreme Court invalidated the residual
clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), as void for vagueness, in support for
his argument that his concurrent life sentences should be set aside. Without question,
the Supreme Court has held that Johnson applies retroactively to cases on collateral
8
review. Welch v. United States, ___ U.S. ___, 136 S. Ct. 1257, 1265 (2016) (“Johnson
is thus a substantive decision and so has retroactive effect under Teague in cases on
collateral review.”); In re Watkins, 810 F. 3d 375, 377 (6th Cir. 2015).
But the
retroactive application of Johnson requires a sentence that has actually been enhanced
under the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii). Here, Alexander states no
claim for habeas relief based on Johnson and Welch, because the district court did not
employ the residual clause of the ACCA when it imposed Alexander’s seven concurrent
life sentences in May 1990.
Through PACER, this Court has ascertained that on May 13, 2016, Alexander
filed a motion in the Fifth Circuit Court of Appeals, seeking permission to file a second
or successive § 2255 motion in the district court based on Johnson. In re Alexander,
No. 16-20297 (5th Cir. May 13, 2016). On June 21, 2016, the Fifth Circuit denied
Alexander’s request to file a successive § 2255 motion, explaining as follows:
To the extent that [Alexander] was sentenced under the ACCA based
upon his convictions in Louisiana for armed robbery, those offenses are
violent felonies under the elements clause of the ACCA, § 924(e)(2)(B)(i),
which was not addressed in Johnson…. His claim that his convictions
for armed robbery were consolidated and, thus, were not separate
violent felonies for purposes of the ACCA is not implicated by
Johnson.
Id. at 2 (emphasis added).
Thus, as the Fifth Circuit explained just two months ago, Johnson has no bearing
on Alexander’s case. Therefore, Alexander states no possible grounds for habeas relief
under § 2241, or under any other statutory mechanism, based on Johnson and Welch.
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Despite the Fifth Circuit’s ruling of June 21, 2016, Alexander filed the instant § 2241
petition six days later, on June 27, 2016, seeking relief under Johnson and Welch.
Further, another consideration justifies dismissal of Alexander’s § 2241 petition.
To the extent that Alexander complains about alleged sentencing errors, he does not
assert a valid claim under § 2241. The Sixth Circuit has never extended the savings
clause to a § 2241 petitioner who seeks to challenge the enhancement of his or her
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) (a prisoner’s challenge to
his sentencing enhancement under 21 U.S.C. §§ 841 and 846 is 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) (“[C]laims of sentencing error may not
serve as the basis for an actual innocence claim.”).
Finally, Alexander claims that the Bureau of Prisons is denying him equal
protection of the law based on the statement made by a United States Probation officer
that Alexander fell under the sentencing scheme of the ACCA. The Equal Protection
Clause provides that ‘all persons similarly situated should be treated alike.’” Cutshall v.
Sundquist, 193 F.3d 466, 482 (6th Cir. 1999) (quoting City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 439 (1985)).
Under the Equal Protection Clause, the
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government is prohibited from engaging in discrimination that: (1) burdens a
fundamental right; (2) targets a suspect class; or (3) “intentionally treats one differently
than others similarly situated without any rational basis for the difference.” TriHealth,
Inc. v. Bd. of Comm’rs, 430 F.3d 783, 788 (6th Cir. 2005) (citation omitted).
The third prong, commonly known as a “class-of-one theory,” requires a plaintiff
to prove that he was intentionally treated differently from other similarly situated
individuals without a rational basis for the difference in treatment. Vill. of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000). A plaintiff establishes that government action lacks a
rational basis “either by negativing every conceivable basis which might support the
government action, or by showing that the challenged action was motivated by animus
or ill-will.” TriHealth, Inc., 430 F.3d at 788 (citation omitted).
Alexander cites no facts suggesting that he has been singled out or treated
differently from other similarly situated federal prisoners, or that he has been denied
equal protection for any reason with respect to the administration of his federal
sentences. Even if Alexander had made such allegations, the claims would not be
appropriate for a § 2241 petition; such claims would have to be asserted in a civil rights
proceeding. Habeas corpus relief is not available to prisoners who are complaining only
of the conditions of their confinement or mistreatment during their legal incarceration.
See Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004); Sullivan v. United States, 90
F. App’x 862, 863 (6th Cir. 2004); Lutz v. Hemingway, 476 F. Supp. 2d 715, 718 (E.D.
Mich. 2007). Thus, Alexander states no claim for habeas relief with respect to his
alleged “equal protection” claim.
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In summary, because Alexander cites no new rule of law made retroactive by a
Supreme Court case that applies to the facts of his case, and because the savings
clause of § 2255 extends only to petitioners asserting a claim of actual innocence
regarding their convictions, not their sentences, Alexander’s § 2241 habeas petition will
be denied.
III.
Conclusion
Accordingly, for the reasons stated herein, IT IS ORDERED that:
1.
Petitioner’s 28 U.S.C. § 2241 petition for a writ of habeas corpus (Doc. #
1) and the amended § 2241 petition (Doc. # 5) are DENIED;
2.
This habeas proceeding is DISMISSED and STRICKEN from the Court’s
docket; and
3.
Judgment shall be entered contemporaneously with this Memorandum
Opinion and Order.
This 28th day of August, 2016.
K:\DATA\ORDERS\ProSe\Alexander 16-127-DLB Dism 2241 CKS.doc
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