CEDRIC SMITH, a/k/a Cedric J. Smith, Petitioner,
J.C. HOLLAND, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
KAREN K. CALDWELL, District Judge.
Cedric Smith is an inmate confined in the United States Penitentiary-McCreary located in Pine Knot, Kentucky. Smith has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his federal bank robbery and firearm convictions. [R. 1] Smith has paid the $5.00 filing fee. [R. 5]
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 Smith' 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), accepts his factual allegations as true, and construes his legal claims in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). Having reviewed the petition, the Court must deny it because Smith can not pursue his claims under 28 U.S.C. § 2241.
CRIMINAL CONVICTION AND PRIOR COLLATERAL CHALLENGES
A federal grand jury in Shreveport, Louisiana, returned a superseding indictment charging Smith, Larry Wayne McCray, and Eddie Lee Howard with four counts of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d) and 18 U.S.C. § 2, and with four counts of using a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2. United States v. Smith, No. 5:91-CR-50088-DEW-MLH-1 (W.D. La. 1991) ("the Sentencing Court") Count Nine of the superseding indictment charged Smith (alone) with robbing the First National Bank of Mansfield in Stonewall, Louisiana, on June 1, 1990.
Smith and McCray were tried together on counts one through ten of the superseding indictment. The jury found Smith guilty of all ten counts with which he was charged, and found McCray guilty of all eight counts with which he was charged. In November 1992, Smith received an 1128-month prison sentence. Smith appealed, claiming that the Sentencing Court improperly allowed the prosecution to introduce into evidence a confession made by codefendant McCray-which contained an incriminating statement against Smith-through the testimony of a prosecution witness, Detective Schach. Smith argued that the introduction of McCray's incriminating statement violated his Sixth Amendment right to confrontation under Bruton v. United States, 391 U.S. 123 (1968). The Fifth Circuit affirmed Smith's conviction, finding that the introduction of McCray's confession through Schach's testimony did not violate Smith's Sixth Amendment rights because (1) Schach did not mention Smith's name but instead referred only to McCray's "accomplice, " (2) other evidence implicated Smith in the bank robberies. United States v. McCray, 997 F.2d 881, 1993 WL 261095 (5th Cir. July 7, 1993).
On March 28, 2005, Smith filed a motion in the Sentencing Court seeking a sentence reduction under 18 U.S.C. § 3582. See Sentencing Court Docket Sheet [R. 221, therein]. On October 4, 2005, the Sentencing Court re-characterized Smith's motion as one seeking relief from his sentence under 28 U.S.C. § 2255 and United States v. Booker, 543 U.S. 220 (2005), and denied the construed § 2255 motion, stating that its decision to increase Smith's sentence based on factors not determined by the jury did not violate Smith's Sixth Amendment rights. [ Id., R. 223, therein] Smith appealed, but was denied a certificate of appealability because the Fifth Circuit concluded that he had not made a substantial showing of the denial of a constitutional right. United States v. Smith, No. 05-31150 (5th Cir. March 14, 2007); see also, Sentencing Court Docket Sheet [R. 235, therein].
CLAIMS ASSERTED IN § 2241 PETITION
In his § 2241 petition, Smith asserts that the evidence presented at trial failed to establish either that he committed several separate bank robberies, or that he used separate firearms to commit separate bank robberies. [R. 1-1, pp. 4-5] Smith claims that only one offense was committed in a single transaction involving Counts Two, Four, Six, Eight, and Ten. [ Id., p. 5]
Smith also contends that his conviction and sentence violate his constitutional rights because the jury was not given an instruction finding him guilty of either actively employing a firearm or placing another person's life in jeopardy during and in relation to a crime of violence. [ Id., p. 6; p. 8] Smith claims that the Sentencing Court improperly "stacked" the § 924(c) firearm offenses (Counts Two, Four, Six, and Ten of the Superseding indictment) and ordered them to run consecutively to the substantive bank robbery offenses (Counts One, Three, Five, Seven, and Nine of the superseding indictment).
Finally, Smith argues that the Sentencing Court, instead of the jury, improperly made findings of fact which resulted in him receiving a sentence which was 1020 months longer than it should have been. Smith contends that his 1128-month sentence violates both his Fifth Amendment right to due process of law, and his Sixth Amendment right to have a jury determine all of the factual predicates of the charged offenses. In support of his argument, Smith relies on a recent decision of the United States Supreme Court: Alleyne v. United States, 133 S.Ct. 2151 (2013), which held that "[a]ny fact that, by law, increases the penalty for a crime is an element' that must be submitted to the jury and found beyond a reasonable doubt." Id. at 2155.
Smith is not challenging the execution of his sentence, such as the computation of sentence credits or parole eligibility, issues which fall under the ambit of § 2241. United States v. Jalili, 925 F.2d 889, 894 (6th Cir. 1999). Instead, Smith challenges the constitutionality of his underlying federal conviction on Fifth and Sixth Amendment grounds. But § 2241 is not the mechanism for asserting such a challenge: 28 U.S.C. § 2255(a) provides the primary avenue of relief for federal prisoners seeking relief from an unlawful conviction or sentence, Terrell v. United States, 564 F.3d 442, 447 (6th Cir. 2009), and is the mechanism for collaterally challenging errors that occurred "at or prior to sentencing." Eaves v. United States, 4:10-CV-36, 2010 WL 3283018, at *6 (E.D. Tenn. Aug. 17, 2010).
Section 2255(e) provides a narrow exception to this rule, and permits a prisoner to challenge the legality of his conviction through a § 2241 petition, where his remedy under Section 2255 "is inadequate or ineffective" to test the legality of his detention. The only circumstance in which a petitioner may use this provision is where, after his conviction has become final, the Supreme Court re-interprets the terms of the statute the petitioner was convicted of violating in such a way that his actions did not violate the statute. Martin v. Perez, 319 F.3d 799, 804 (6th Cir. 2003). See Barnes v. United States, 102 F.Appx. 441, 443 (6th Cir. 2004) ("A prisoner who can show that an intervening change in the law establishes his actual innocence can invoke the savings clause of § 2255 and proceed under § 2241."); Lott v. Davis, 105 F.Appx. 13, 14-15 (6th Cir. 2004). This exception does not apply where the prisoner failed to seize an earlier opportunity to correct a fundamental defect in his ...