Opinion
Cv. No. 04-2585-D/V, Cr. No. 93-20239 (G).
March 28, 2005
On July 29, 2004, defendant, Robert Fulton Humphrey, Bureau of Prisons (BOP) registration number 14399-076, an inmate at the Federal Correctional Institution at Memphis (FCI), filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 attacking his conviction and imprisonment under a conviction for violating 18 U.S.C. § 922(g). Humphrey filed a motion to proceedin forma pauperis, however he subsequently paid the $5 filing fee on August 12, 2004. Accordingly, the motion to proceedin forma pauperis is DENIED as moot. (docket entry #2) Humphrey filed a motion for the Court to take judicial notice of the recent case of Blakely v. Washington, 124 S. Ct. 2531 (2004). No motion is needed to bring the Court's attention to recent decisions of the United States Supreme Court. The motion is DENIED. (docket entry #3) On October 25, 2004, Humphrey filed an amendment to his petition which raises an additional claim.
On September 9, 1993, a grand jury indicted defendant on two counts of possessing a firearm and ammunition after conviction of a felony, and three related firearms counts. On October 20, 1993, the grand jury issued a superseding indictment. On April 3, 1995, the defendant entered a guilty plea to counts 1 and 2 of the indictment pursuant to a negotiated plea agreement. On July 7, 1995, Judge Gibbons conducted the sentencing hearing and sentenced Humphrey to the mandatory minimum sentence of fifteen years imprisonment pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e) plus a five-year period of supervised release. On July 24, 1995, the Court entered its judgment. Counts 3-5 of the indictment were dismissed. Defendant appealed, and the United States Court of Appeals for the Sixth Circuit affirmed the Court's judgment and defendant's sentence. United States v. Humphrey, No. 95-6079 (6th Cir. June 13, 1996).
On July 1, 1994, United States District Judge Julia Gibbons conducted a hearing and determined that Humphrey was competent to stand trial. On September 23, and October 28, 1994, Judge Gibbons ordered additional mental evaluations of the defendant. On January 18, 1995, Judge Gibbons extended the evaluation period. On March 31, 1995, Judge Gibbons conducted an additional competency hearing and again found the defendant competent to stand trial.
Defendant thereafter filed a motion under 28 U.S.C. § 2255, contending that his attorney provided ineffective assistance by failing to raise on appeal the issue of his competency to stand trial and enter a valid guilty plea, and by failing to object to the indictment. In a supplemental motion he also alleged that the predicate convictions used to sentence him under § 924(e) as an armed career criminal did not include a sufficient number of violent crimes. Judge Gibbons summarily denied his motion.United States v. Humphrey, No. 97-2370-G/A (W.D. Tenn. Nov. 19, 1997). Humphrey later filed a notice of appeal and a motion to disqualify the Court. Judge Gibbons denied the motion to disqualify, and the United States Court of Appeals for the Sixth Circuit denied a certificate of appealability. Humphrey v. United States, No. 98-5137 (6th Cir. July 27, 1998), reh'g en banc denied, (Nov. 17, 1998).
On December 18, 1998, defendant filed an irregular document styled as an "Order to Show Cause Why the Plaintiff Should Not Be Granted a Petition for Writ of Habeas Corpus Under Article I, § 9 Cl. 2 of the United States Constitution Show Cause Under 28 U.S.C. § 2247 et seg. Show Cause 28 U.S.C. § 2243(b) (2) (3)." Humphrey again contended that his confinement and conviction are unconstitutional. Judge Gibbons construed the document as a successive motion to vacate, directed the Clerk to docket the motion as a new case, and transferred it to the Sixth Circuit Court of Appeals. The Sixth Circuit dismissed the petition for want of prosecution. United States v. Humphrey, No. 99-2013, No. 99-5063 (6th Cir. Mar. 1, 1999).
The Court first addresses the claim raised in the amended petition. Humphrey challenges the manner in which the BOP calculates his good conduct time. He alleges that he should be allowed good time conduct credits for the entirety of the sentence that was imposed. Under 18 U.S.C. § 3624(b), an inmate may be awarded 54 days of good time credit per year only "at the end of each year of the prisoner's term of imprisonment . . . that, during that year, the prisoner has displayed exemplary compliance with the institutional disciplinary regulations." 18 U.S.C. § 3624(b) (1); see United States v. Martin, 100 F.3d 46, 47 n. 1 (7th Cir. 1996).
Habeas corpus is the ordinary remedy for a federal prisoner who is raising issues that challenge the execution of his sentence.United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991);Wright v. United States Bd. of Parole, 557 F.2d 74, 78 (6th Cir. 1977). Accordingly, Humphrey's sole remedy in federal court on this issue is a properly filed habeas petition under 28 U.S.C. § 2241. See Edwards v. Balisok, 520 U.S. 641, 644 (1997);Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).
Federal prisoners are required to exhaust administrative remedies before filing a petition under 28 U.S.C. § 2241. Little v. Hopkins, 638 F.2d 953, 954 (6th Cir. 1981). Humphrey has failed to allege that he has pursued his administrative remedies with the Bureau of Prisons as required. Accordingly, with respect to this issue, "it appears from the application that the applicant or person detained is not entitled" to any relief. 28 U.S.C. § 2243. This issue is DISMISSED without prejudice. Humphrey may file a new habeas petition on this issue after exhausting his administrative remedies.
Humphrey contends that his indictment failed to state an offense and that he was sentenced under a statute not charged in the indictment. These claims are cognizable only under § 2255. The Antiterrorism and Effective Death Penalty Act of 1996,
Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996) (codified, inter alia, at 28 U.S.C. § 2244 et seq.) (AEDPA), amended 28 U.S.C. §§ 2244(b) and 2255 to limit a defendant to his direct appeal and one collateral attack, filed within one year of the time conviction is final. This provision strengthened the existing provisions limiting federal prisoners to one collateral attack on a conviction. These reforms were intended to further protect the finality attached to federal criminal judgments and to reduce the workloads of the federal courts.
As a § 2255 motion is foreclosed by the AEDPA statute of limitations, the petitioner seeks to characterize this case as a habeas petition under 2241. The only reason for this characterization, however, is the need to avoid the limitation on collateral attacks enacted by the AEDPA. This case clearly seeks to attack the validity of petitioner's original sentence and is in reality a motion under § 2255. A series of unpublished opinions has relied on Gray-Bey v. United States, 209 F.3d 986, 990 (7th Cir. 2000), to conclude that § 2255 motions that are disguised as § 2241 petitions should not be transferred but dismissed.
See, e.g., In Re Walker, No. 00-5262, 2000 WL 1517155 (6th Cir. Aug. 4, 2000).
Generally, habeas corpus is available if "the issues raised more accurately challenged the execution of the sentence than its imposition." Wright, 557 F.2d at 78. On the other hand, "[s]ection 2255 . . . has been conceived to be limited to those claims which arise from the imposition of the sentence as distinguished from claims attacking the execution of the sentence." Id. at 77. Cf. Jalili, 925 F.2d at 893 ("Because defendant Jalili is challenging the manner in which the sentence is executed, rather than the validity of the sentence itself, Section 2255 does not apply."). It is clear from Wright andJalili, however, that true attacks on the "execution" of a sentence relate to BOP decisions affecting the duration of the sentence and that such attacks accept, as a matter of course, the validity of the original underlying conviction and sentence. Humphrey's petition does not challenge the execution of his sentence, but attacks its imposition.
Federal prisoners seeking collateral relief from a conviction or sentence must seek relief through a motion to vacate under 28 U.S.C. § 2255. Charles v. Chandler, 180 F.3d 753, 755-56 (1999); In re Hanserd, 123 F.3d 922, 933 (6th Cir. 1997);United v. Sarduy, 838 F.2d 157, 158 (6th Cir. 1988) (challenge to proper sentence calculation should be brought under § 2255, not Rules 32 or 35). See also United States v. Cerna, 1994 U.S. App. LEXIS 27901 at *2-3 (6th Cir. Oct. 4, 1994) (district court has discretion to construe motion erroneously styled as one under § 3582 (c) (2) as a motion to vacate under § 2255); United States v. Auman, 8 F.3d 1268, 1271 (8th Cir. 1993); Wood v. United States, No. 91-2055, 1992 U.S. App. Lexis 3053 (6th Cir. Feb. 25, 1992) (petition for a writ of error coram nobis should be construed as motion under § 2255); Owens v. Benson, 439 F. Supp. 943, 944 (E.D. Mich. 1977) (the proper remedy for a federal prisoner attacking his conviction or sentence is a motion under § 2255). Cf. Capaldi v. Pontesso, 135 F.3d 1122, 1124 (6th Cir. 1998) (adopting per se rule that district court may not consider a § 2255 motion while prisoner's direct appeal is pending and affirming denial of habeas relief to prisoner whose direct appeal was pending in Fifth Circuit).
Although citation to unpublished Sixth Circuit precedents is disfavored, this case is referred to in the absence of clear published case law from this circuit "because it establishes the law governing the present action and `there is no [Sixth Circuit] published opinion that would serve as well.'" Norton v. Parke, 892 F.2d 476, 479 n. 7 (6th Cir. 1989).
See supra note 3.
Habeas corpus will lie, however, if it "appears that the remedy by motion is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255. This "savings clause" operates as an additional exception to the successive motion limits of the AEDPA and permits review by a habeas petition in an even more narrow category of cases.
The movant has the burden of demonstrating that the savings clause applies. Charles, 180 F.3d at 756. The § 2255 remedy is not inadequate or ineffective, for example, merely because the successive motion limits apply to bar consideration of a claim or the motion is barred by the statute of limitations. Charles, 180 F.3d at 756-58. Rather, if the claim is of a type that was cognizable under § 2255, the remedy is not inadequate or ineffective, regardless of whether the movant can obtain a substantive review on the merits in the present motion. As suggested by Gray-Bey, 209 F.3d at 990, in considering the scope of collateral remedies remaining to federal prisoners after the AEDPA, "§ 2255 ¶ 8 means . . . that prisoners today are never entitled to multiple collateral attacks, so that their inability to obtain another round of litigation cannot demonstrate that § 2255 as a whole is `inadequate or ineffective to test the legality of . . . detention.'"
Federal law providing for collateral review of conviction and sentence does not guarantee that every prisoner will obtain a review on the merits of a constitutional claim, but that every prisoner will at some point have the opportunity for such review. See, e.g., Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999). According to Wofford, the entire federal criminal procedure statutory scheme, encompassing trial, direct appeal, and one opportunity for collateral review, ensures that "a petitioner will have had `an unobstructed procedural shot at getting his sentence vacated.' That does not mean that he took the shot . . . the Constitution requires [only] that the procedural opportunity existed." Id. (quoting In Re Davenport, 147 F.3d 605, 609 (7th Cir. 1998)).
Wofford held that the "inadequate or ineffective" savings clause applies to permit a prisoner to set aside a conviction when
1) the claim is based upon a retroactively applicable Supreme Court decision; 2) the holding of that Supreme Court decision establishes the petitioner was convicted for a nonexistent offense; and, 3) circuit law squarely foreclosed such a claim at the time it otherwise should have been raised in the petitioner's trial, appeal, or first § 2255 motion.Wofford, 177 F.3d at 1244.
Humphrey attacks his sentence alleging that he is entitled to relief under Blakely v. Washington, 124 S. Ct. 2531 (2004). Although Humphrey can make a prima facie showing thatBlakely was not available to him during the applicable one-year limitations period for a motion to vacate and presents a new constitutional rule of criminal procedure, he cannot demonstrate that Blakely has been "made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255. New rules of constitutional criminal procedure are generally not applied to cases on collateral review. Teague v. Lane, 489 U.S. 288 (1989).
In the recent cases of United States v. Booker, No. 04-104 and United States v. Duncan Fanfan, No. 04-105, 125 S. Ct. 738 (Jan. 12, 2005), although the Supreme Court determined that its hold in Blakely applies to the Sentencing Guidelines, Booker, 125 S. Ct. at 755-56, the Court also expressly stated that its holding must be applied to all cases on direct review. Booker, 125 S. Ct. at 769 (citing Griffith v. Kentucky, 479 U.S. 314, 328 (1987) ("[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases . . . pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a `clear break' with the past")).
The Sixth Circuit determined in Humphress v. United States, 398 F.3d 855 (Feb. 25, 2005), that the rule of Booker does not fall within the second exception of Teague. Id. at 863 (noting that the Supreme Court has never held that a new rule of criminal procedure falls with the second exception of Teague). Thus, the Sixth Circuit concluded that the rule of Booker does not apply retroactively in collateral proceedings. Humphress, 398 F.3d at 860. Thus, these recent decisions also fail to provide Humphrey with any basis for relief.
Humphrey does not attempt to demonstrate actual innocence. Furthermore, it is clear that an actual innocence claim requires "factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623-24 (1998); Hilliard v. United States, 157 F.3d 444, 450 (6th Cir. 1998). The movant must show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent of the crime." Murray v. Carrier, 477 U.S. 478, 496 (1986). Accordingly, Humphrey is not entitled to relief under § 2241 on his claims.
Because Humphrey is not entitled to invoke § 2241, "it appears from the application that the applicant or person detained is not entitled" to any relief. 28 U.S.C. § 2243. An order for the respondent to show cause need not issue. The petition is DENIED and DISMISSED.
Appeals of habeas petitions under 28 U.S.C. § 2254 and motions under 28 U.S.C. § 2255 are governed by 28 U.S.C. § 2253 and require the district court to consider whether to issue a certificate of appealability. Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063 (6th Cir. 1997). Section 2253 does not apply to habeas petitions by federal prisoners under § 2241. McIntosh v. United States Parole Comm'n, 115 F.3d 809, 810 (10th Cir. 1997);Ojo v. I.N.S., 106 F.3d 680, 681-82 (5th Cir. 1997); Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). Nevertheless, a habeas petitioner seeking to appeal is still obligated to pay the $255 filing fee required by 28 U.S.C. §§ 1913 and 1917. Under the Prison Litigation Reform Act of 1995 (PLRA), 28 U.S.C. § 1915, it is unclear how habeas petitioners establish a right to proceed in forma pauperis and avoid this filing fee.
Although the Sixth Circuit has concluded that the various filing fee payment requirements and good faith certifications of amended § 1915 do not apply to § 2254 cases, it has not resolved whether these requirements apply to § 2241 cases. Kincade v. Sparkman, 117 F.3d 949, 951-52 (6th Cir. 1997). Cf. McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997) (instructing courts regarding proper PLRA procedures in prisoner civil-rights cases, without mentioning § 2241 petitions).
The Tenth Circuit, however, has held that the provisions of the PLRA do not apply to habeas cases of any sort or to § 2255 motions. See McIntosh, 115 F.3d at 810; United States v. Simmonds, 111 F.3d 737, 743 (10th Cir. 1997). An unpublished Sixth Circuit opinion has adopted this approach in affirming a decision from this district. Graham v. U.S. Parole Com'n, No. 96-6725, 1997 WL 778515 (6th Cir. Dec. 8, 1997), aff'g, Graham v. United States, No. 96-3251-Tu (W.D. Tenn. Dec. 4, 1996). Because the Court finds the reasoning of McIntosh persuasive, and because the Court finds that this conclusion naturally follows from the Sixth Circuit's decision in Kincade, the Court concludes that the PLRA does not apply to § 2241 petitions.
Pursuant to Kincade, a petitioner must seek leave to proceedin forma pauperis from the district court under Fed.R.App. 24(a), which provides:
A party to an action in a district court who desires to proceed on appeal in forma pauperis shall file in the district court a motion for leave to so proceed, together with an affidavit, showing, in the detail prescribed by Form 4 of the Appendix of Forms, the party's inability to pay fees and costs or to give security therefor, the party's belief that that party is entitled to redress, and a statement of the issues which that party intends to present on appeal.
The Rule further requires the district court to certify in writing whether the appeal is taken in good faith, and to deny the certificate if the appeal would be frivolous.
The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438, 445 (1962). An appeal is not taken in good faith if the issue presented is frivolous. Id. It would be inconsistent for a district court to determine that a complaint does not warrant service on the respondent, yet has sufficient merit to support an appeal in forma pauperis. See Williams v. Kullman, 722 F.2d 1048, 1050 n. 1 (2d Cir. 1983). The same considerations that lead the Court to dismiss this petition also compel the conclusion that an appeal would not be taken in good faith. It is therefore CERTIFIED, pursuant to F.R.A.P. 24(a), that any appeal in this matter by petitioner is not taken in good faith, and he may not proceed on appeal in forma pauperis.
IT IS SO ORDERED.