MEMORANDUM OPINION AND ORDER
DAVID L. BUNNING, District Judge.
Michael Ray Posey ("Posey") is an inmate confined in the United States Penitentiary ("USP")-McCreary in Pine Knot, Kentucky. Proceeding without an attorney, Posey has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1] and an amended petition [R. 2] challenging his federal sentences imposed in 1988. Posey has paid the $5.00 filing fee.
The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F.Appx. 544, 545 (6th Cir. 2011). The Court must deny the petition "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)). The Court evaluates Posey'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). Having reviewed the petition, the Court must deny it because Posey can not pursue his claims in a habeas corpus proceeding under § 2241.
The Court can not obtain complete information about Posey's criminal convictions because they predated the advent of federal court system's online PACER database. Based on the allegations in Posey's § 2241 petition and the limited information available through PACER, it appears that in 1988, Posey was indicted in an Alabama federal court for nine theft and theft-related offenses on a government reservation. United States v. Posey, No. 5:88-CR-00076-RBP-MHM-1 (N.D. Ala. 1988). Posey states that Counts 1, 2, 3, 5, and 9, of the indictment charged him with theft on a government reservation in violation of 18 U.S.C. § 661, and that Counts 4, 6, 7, and 8, of the indictment charged him with breaking and entering a government reservation with intent to commit theft in violation of 18 U.S.C. § 13.
Given the fact that the Court can not electronically access the entire docket sheet in Posey's 1988 criminal proceeding, it is unclear (a) whether Posey pled guilty to these offenses or whether a jury convicted him, and (b) what exact sentence was imposed. In one of his filings, Posey states that he "... was sentenced to 10 years for breaking and entering, a crime punishable under 18 USC 661, a class(a) misdemeanor...." [R. 1, p. 5, § IV (A)] In another filing, however, Posey states that on July 6, 1988, he was sentenced to a two-year prison term on Count 1; a two-year sentence to run concurrently with the sentence on Count 7; and that as to Counts 2-6, 8, and 9, he was "... placed on probation for a period of five years to begin upon due and lawful release from custodial sentence imposed under counts 1 and 7." [R. 2, p. 2] In his § 2241 petition, Posey stated that he neither appealed his sentence [R. 1, p. 2, ¶ I(A)], nor filed a motion under 28 U.S.C. § 2255 challenging his conviction and/or sentence. [ Id., p. 3, ¶ III(A)]
Posey states that after being sentenced in federal court, he was returned to the custody of the the State of Alabama to complete his state sentence; that in February 1992, the Alabama Department of Corrections ("DOC") released him from state custody and returned him to federal custody to begin serving his federal sentence; and that while serving his federal sentence, he escaped from the Federal Prison Camp in Talledega, Alabama. Id. Posey states that he was apprehended and charged with one count of Escape from a Federal Prison. See United States v. Posey, No. 1:92-CR-00143-RBP-1 (N.D. Ala. 1992). Court filings in that case between 1992 and March 1996 are not available through PACER, but Posey states that on July 27, 1992, he was sentenced to a 30-month prison term on the escape charge, followed by a one-year term of supervised release; that after sentencing, he was returned to federal prison; and that in May 1996, he was released from federal prison and began serving his probation and supervised release term imposed in his 1988 case. [R. 2, p. 3]
Posey states that in December 1996, he was arrested on new state charges, and that as a result, federal authorities placed a detainer on him for violating the terms of his probation and supervised release. [ Id. ] On January 31, 1997, Posey appeared at a revocation hearing, at which Judge Sharon L. Blackburn (1) sentenced Posey to a 24-month prison term for violating his probation and supervised release; (2) revoked the probation and supervised release terms originally imposed in 88-CR-00076-RBP and committed Posey to the Bureau of Prisons' ("BOP") custody to serve the full 10-year sentence imposed in 88-CR-00076-RBP; and (3) ordered the 10-year sentence from 1988 and the newly imposed 24-month sentence to run consecutively. See United States v. Posey, 92-CR-00143-RBP-1 [R. 16, therein] It does not appear from the docket sheet of that proceeding that Posey either appealed that conviction and/or sentence, or that he filed a motion under 28 U.S.C. § 2255 to alter, amend, or set aside the sentence imposed on January 31, 1997.
Posey states that after he was sentenced in 92-CR-00143-RBP-1, he was returned to the State of Alabama to complete service of his state sentence, and that in September 2009, the Alabama DOC released him from its custody to begin serving his two federal sentences. Posey's projected BOP release date is September 2, 2017.
On October 11, 2012, shortly before filing his § 2241 habeas petition, Posey filed a Federal Criminal Rule of Criminal Procedure 35(a) motion in his 1988 criminal proceeding, seeking relief from his sentence. United States v. Posey, No. 5:88-CR-00076-RBP-MHM-1 (N.D. Ala. 1988) [R. 17, therein] Posey alleged that his 1988 conviction was illegal because as to some counts, he was charged with violating the wrong federal statute; that because he was convicted under the wrong statute, his sentence should be corrected; and finally, that as to other counts of the indictment, his sentence exceeded the statutory maximum.
Specifically, Posey alleged that based on the case of United States v. Lavender, 602 F.2d 641 (4th Cir. 1979), he should have been charged under 18 U.S.C. § 661 as to Counts 4, 6, and 8 of the indictment, instead of 18 U.S.C. § 13, which he identified as the Assimilative Crimes Act ("ACA"). [ Id., p. 5] Posey alleged that based on Lavender, the ACA would not have applied to Counts 4, 6, and 8 of the indictment because Congress had enacted § 661 to govern "theft of personal property related crimes." [ Id. ] Posey further asserted that the sentences imposed as to Counts 2-6, 8, and 9, of the indictment were also illegal because they pertained to loss of personal property valued at less than $1, 000.00, and that under § 661, he could not have been imprisoned for more than one year if convicted of taking property valued at less than $1, 000.00. [ Id., pp. 5-6]
On January 25, 2013, Posey filed another motion to compel the sentencing court to act on his prior motion and to appoint counsel for him, stating that his sentence "... exceeded the maximum allowed by law...." [ Id., R. 18, therein] Both of Posey's motions seeking post-judgment relief from his sentence remain pending in the sentencing court.
On October 29, 2012, Posey filed this § 2241 petition, challenging both his underlying conviction and the sentences imposed in his 1988 criminal proceeding. [R. 1; R. 2] Just as he argued in his recent Rule 35(a) motion, Posey again asserts that under Lavender, he should have been prosecuted under 18 U.S.C. § 661 instead of under 18 U.S.C. § 13 as to Counts 4, 6, and 8 of the 1988 indictment. [R. 2, p. 4] This allegation is essentially a claim alleging the denial of due process of law in violation of the Fifth Amendment of the U.S. Constitution.
Posey also challenges the sentences imposed as to Counts 2-6, 8, and 9 of the indictment, claiming that they are "illegal sentences." [R. 1, p. 9] Just as he alleged in his Rule 35(a) motion, Posey again contends that because each of those counts pertained to thefts of property valued at less than $1, 000.00, he could not have been sentenced to more than one year of imprisonment on any of them. [ Id. ] Posey asserts that the sentencing court lacked jurisdiction under 18 U.S.C. § 3561(a)(3) to impose the 5-year probated sentences on these counts. Finally, Posey argues that because he received two separate ...