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Kenley v. Withers

United States District Court, Sixth Circuit

May 28, 2013

JESSE OLIVER KENLEY, Jr., Petitioner,
v.
SHANNON WITHERS, Acting Warden, Respondent.

MEMORANDUM OPINION AND ORDER

DANNY C. REEVES, District Judge.

Jesse Oliver Kenley, Jr. is currently confined in the United States Penitentiary - McCreary in Pine Knot, Kentucky.[1] Proceeding without counsel, Kenley has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his federal conviction and sentence. [Record No. 1] Having reviewed the petition, the Court will deny the relief requested.

In conducting the initial review of this matter, the Court must 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 under Rule 1(b)). However, the Court evaluates Kenley'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 Kenley's factual allegations as true, and construes his legal claims in his favor. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

I.

Kenley was charged with robbery, conspiracy, and witness tampering in the United States District Court for the Middle District of Pennsylvania. United States v. Kenley, No. 1: 06-CR-09-SHR-1 (M.D. Pa. 2006). On January 4, 2006, Kenley pleaded guilty to these charges in exchange for the termination of criminal proceedings in the Dauphin County Court of Common Pleas. The district court accepted Kenley's guilty plea after conducting an extensive colloquy in which it explained to Kenley the legal elements of the crimes charged and the rights he was surrendering.

On May 10, 2006, Kenley filed a motion to withdraw his guilty plea. After conducting two hearings on the motion, the court denied the requested relief on July 6, 2006. During the sentencing hearing held on July 18, 2006, the Court sentenced Kenley to a combined prison term of 420 months, followed by three years of supervised release. Kenley appealed his conviction and sentence. However, on November 6, 2008, the Court of Appeals for the Third Circuit affirmed the denial of Kenley's motion to withdraw his guilty plea. United States v. Kenley, 299 F.Appx. 184 (3d Cir. 2008), cert. denied, 129 S.Ct. 2410 (2009).

Thereafter, on September 18, 2009, Kenley filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Kenley alleged that he had received ineffective assistance of counsel during his federal criminal proceeding. Additionally, he asserted that the prosecutor had engaged in misconduct by: (1) failing to produce discovery; (2) violating the terms of the proffer agreement; and (3) causing his wife to testify against him in violation of the spousal privilege. The district court denied Kenley's § 2255 motion on January 7, 2010, and the Court of Appeals affirmed. United States v. Kenley, 440 F.Appx. 78 (3d Cir. 2011).

II.

Kenley filed the current petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 on March 8, 2013. [Record No. 1] In his petition, he asserts that he is actually innocent of the federal witness tampering charge. Kenley alleges that the prosecutor told the grand jury that Alicia Kenley was his ex-wife instead of his wife, and then compelled Alicia Kenley to testify against him in violation of the spousal privilege. Kenley is essentially alleging that the Assistant United States Attorney violated his right to due process in violation of the Fifth Amendment to the United States Constitution.

Second, Kenley claims that during various stages of the proceeding, his trial counsel rendered ineffective assistance in violation of the Sixth Amendment to the United States Constitution, rendering his guilty plea unintelligent and involuntary. Regarding this claim, Kenley contends that his trial counsel: (1) failed to review with him the Information prior to his entering the guilty plea, and that accordingly, he was uninformed about the criminal charges to which he pleaded guilty, (2) incorrectly informed him that by pleading guilty to the federal offenses, he would receive a sentence between 140-175 months; and (3) incorrectly assured him that he would serve his sentence in a federal prison in Pennsylvania, near his family. Kenley seeks an order nullifying his guilty plea and setting aside his 420-month sentence.

III.

A federal prisoner may file a § 2241 petition in the district where he is incarcerated 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). In his petition, Kenley is not challenging the execution of his sentence. Rather, he continues to challenge the constitutionality of his underlying conviction for robbery, conspiracy, and witness tampering. However, 28 U.S.C. § 2255(a) provides the primary avenue for federal prisoners seeking relief from an unlawful conviction or sentence, not § 2241. Terrell v. United States, 564 F.3d 442, 447 (6th Cir. 2009).

The "savings clause" in § 2255(e) provides a narrow exception to this rule. Under this provision, a prisoner is permitted 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 where the prisoner failed to seize an earlier opportunity to correct a fundamental defect in his conviction under pre-existing law, or did assert his claim in a prior post-conviction motion under § 2255 but was denied relief. Charles, 180 F.3d at 756.

Kenley's Fifth and Sixth Amendment claims do not fall within this exception. In the direct appeal of his conviction, Kenley argued that the prosecutor violated his due process rights by improperly requiring Kenley's wife to testify against him at the grand jury. The Third Circuit rejected that claim, explaining that "Kenley's marital privilege claim does not advance his factual innocence claim inasmuch as Kenley's ex-wife chose not to assert her marital-privilege right when subpoenaed to testify." Kenley, 299 F.Appx. at 187. Kenley raised the same claim in his § 2255 motion, but the sentencing court dismissed it, noting that the "issue was addressed in a prior opinion of this court and affirmed by the court of appeals... There was no spousal immunity violation." United States v. Kenley, No. 1:CR-06-009, 2010 WL 95098, at *2 n.1 (M.D. Pa. Jan. 7, 2010). Kenley then filed a motion seeking relief under Rule 60(b) asserting the ...


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