Greene-Bey v. Lynch et al

Filing 7

MEMORANDUM OPINION AND ORDER: 1. Clerk shall MODIFY docket to identify petitioner as Lavance Greene, with "Lavance Greene-Bey" as an alternative designation. 2. Clerk shall REMOVE former U.S. Attorney General Loretta Lynch as a respondent in this proceeding. 3. Lavance Greene's petition for a writ of habeas corpus 1 is DENIED. 4. This action is DISMISSED and STRICKEN from Court's docket. 5. Judgment shall be entered contemporaneously with this Order. Signed by Judge Karen K. Caldwell on 6/5/2017. (RCB)cc: COR, Greene

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
LAVANCE GREENE,
Petitioner,

Civil No. 7: 16-31-KKC

V.
MICHAEL SEPANEK, Warden,

MEMORANDUM OPINION
AND ORDER

Respondent.

*** *** *** ***
In 1971, Randolph Greene was serving a 20-year sentence for armed bank robbery in the
District of Columbia. His father died in September of that year, and his mother sought and
obtained permission for Randolph to attend the funeral. Randolph was escorted by four armed
federal marshals to the crowded church.
But Lavance Greene1, the petitioner in this case, saw this solemn occasion as a chance to
break his half-brother Randolph out of jail. He disarmed the four marshals, released his brother,
shot one pursuing marshal to death, and then commandeered a vehicle at gunpoint. But local police
gave chase and the pair surrendered after a high-speed pursuit.
Randolph was convicted of escape; Lavance was convicted of four counts of armed robbery
and felony murder (all D.C. Code offenses), as well as rescue of a federal prisoner and
premeditated murder of a federal officer (two federal crimes). On appeal, the District of Columbia
Circuit Court of Appeals affirmed Lavance’s convictions under the D.C. Code. But the court found

Petitioner identifies himself as “Lavance Greene-Bey,” but the Bureau of Prisons identifies him as “Lavance Greene”
in its online Inmate Locator database, the name under which he was prosecuted. See https://www.bop.gov/inmateloc/;
United States v. Greene, 489 F. 2d 1145 (D.C. Cir. 1973). To maintain consistency in the Court’s records, the Clerk
of the Court will identify him by that name, with “Lavance Greene-Bey” as an alternative designation.
1

troubling the application of disparate standards for assertion of an insanity defense to state and
federal offenses, and chose to avoid a constitutional question by vacating Lavance’s convictions
for the two federal offenses. Greene, 489 F. 2d at 1147, 1156-58; see also United States v. Greene,
834 F. 2d 1067 (D.C. Cir. 1987).
At that point, Lavance Greene stood sentenced to 15 years to life imprisonment on both of
the armed robbery charges, the sentences to run concurrently with one another, and to 20 years to
life on the felony murder charges, to run consecutively to the sentences for the armed robbery, for
a total sentence of 35 years to life. [R. 1-1 at 5-6]
In his petition,2 Greene argues that the trial court lacked the authority to run his felony
murder sentence consecutively to his armed robbery sentences because in 1998, more than twenty
years after he was convicted, the D.C. Code provisions cited in the grand jury indictments for that
authority were repealed and recodified by Congress. He also asserts that the failure to state the
statutory basis for imposing consecutive sentences in the judgment itself renders both his sentences
and his underlying convictions invalid. [R. 1 at 10-11] He also asserts without explanation that
Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015) somehow “declared” the D.C. statutes
that criminalized his conduct unconstitutional. [R. 1 at 11-12]
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). However,
Greene may not challenge his D.C. Code convictions and sentences pursuant to 28 U.S.C. § 2241
in this instance. Greene’s federal convictions were vacated on appeal, and he challenges only his
D.C. Code convictions. The District of Columbia is not a state, and hence he may not seek habeas

2

Greene identified former U.S. Attorney General Loretta Lynch as a second respondent to his petition, but only the
warden of the facility where the petitioner is confined is the proper respondent. Rumsfeld v. Padilla, 542 U.S. 426,
435 (2004). The Clerk will therefore remove Attorney General Lynch as a respondent in this proceeding.
2

relief under 28 U.S.C. § 2254. Rather, he must challenge his convictions in the Superior Court for
the District of Columbia utilizing the District’s own mechanism for collateral attacks, D.C. Code
§ 23-110. That statute, which is modeled after 28 U.S.C. § 2255, provides a mechanism for postconviction motions by prisoners convicted of D.C. Code offenses. Swain v. Pressley, 430 U.S.
372, 376-78 (1977); Palmore v. United States, 411 U.S. 389, 395 (1973). Greene must therefore
seek relief under that provision in the Superior Court for the District of Columbia. Ford v. Wiley,
168 F. App’x 877, 880 (11th Cir. 2006) (“[f]ederal courts ... are generally without jurisdiction to
entertain motions to vacate, set aside, or correct a sentence imposed by the D.C. Superior Court.”).
Section 23-110 does contain a “savings clause” that is nearly identical to the one found in
Section 2255:
An application for a writ of habeas corpus in behalf of a prisoner who is authorized
to apply for relief by motion pursuant to this section shall not be entertained by the
Superior Court or by any Federal or State court if it appears that the applicant has
failed to make a motion for relief under this section or that the Superior Court has
denied him relief, unless it also appears that the remedy by motion is inadequate or
ineffective to test the legality of his detention.
D.C. Code § 23-110(g). Thus, to pursue his claims in this Court, Greene must demonstrate that
his remedy under Section 23-110 is “inadequate or ineffective” to challenge his D.C. Code
convictions. Rogers v. Zuercher, No. 09-03-ART, 2009 WL 499118, at *2 (E.D. Ky. Feb. 27,
2009) (citing Blair-Bey v. Quick, 151 F.3d 1036, 1042-43 (D.C. Cir. 1998)); Perkins v. Henderson,
881 F. Supp. 55, 57 (D.D.C. 1995).
Here, Greene cannot invoke Section 2241 to seek habeas relief. Section 23-110 is not an
inadequate or ineffective mechanism to challenge prior convictions simply because a petitioner
has been denied relief under it. Wilson v. Office of the Chairperson, 892 F. Supp. 277, 280 (D.D.C.
1995). And that remedy is not unavailable merely because Greene has never sought relief based
on his present claims under that provision at all. Totten v. Ives, No. 12-23-GFVT, 2012 WL
3

1409667, at *1 (E.D. Ky. Apr.23, 2012) (citing James v. Edwards, 1989 WL 4972, at *1 (D.D.C.
1989) (“[P]etitioner’s claim of ineffective assistance must be dismissed because petitioner has not
raised this claim in the local courts.”)).
Nor does Greene assert that he is “actually innocent” of his offenses on the ground that
after his convictions became final, the Supreme Court re-interpreted the substantive terms of the
criminal statutes under which he was convicted in a manner that establishes that his conduct did
not violate the statutes. Wooten v. Cauley, 677 F.3d 303, 307-08 (6th Cir. 2012); Hayes v. Holland,
473 F. App’x 501, 501-02 (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.”).

Instead, Greene argues that his

convictions are void because the grand jury indictments and criminal judgment did not cite valid
authority for imposing consecutive sentences. Those claims are, if anything, claims of ordinary
trial error that could and must have been raised on direct appeal or in an initial motion for collateral
review, and hence fail to open the gateway to federal habeas review in this proceeding. Cf. James
v. Warden, FCI El Reno, Okla., No. CIV 13-641-HE, 2014 WL 1330015, at *5 (W.D. Okl. March
12, 2014) (habeas claim that trial court should have run sentences concurrently rather than
consecutively is challenge to validity of sentence that must be pursued under Section 2255, not
Section 2241) (collecting cases).
Finally, while Greene refers to the Johnson decision as a basis for relief, the Supreme Court
has declared that decision to be retroactively applicable to cases on collateral review, Welch v.
United States, __ U.S. __ 136 S. Ct. 1257 (2016), and hence his remedy under Section 23-110 is
not inadequate and ineffective to assert a claim under it. Cf. Woodson v. Meeks, No. 0:15-4209-

4

BHH, 2016 WL 8669184, at *1 (D.S.C. Oct. 14, 2016); Lewis v. Butler, No. 16-135-DLB, 2016
WL 4942005, at *2-3 (E.D. Ky. Sept. 14, 2016).
Accordingly, IT IS ORDERED that:
1.

The Clerk of the Court shall MODIFY the docket to identify the petitioner as

Lavance Greene, with “Lavance Greene-Bey” as an alternative designation.
2.

The Clerk of the Court shall REMOVE former United States Attorney General

Loretta Lynch as a respondent in this proceeding.
3.

Lavance Greene’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241

[R. 1] is DENIED.
4.

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

5.

Judgment shall be entered contemporaneously with this Order.

Dated June 5, 2017.

5