JAMES WRIGHT, a/k/a/James H. Wright, , Petitioner,
J. C. HOLLAND, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
KAREN K. CALDWELL, Chief District Judge.
James Wright is an inmate confined in the United States Penitentiary-McCreary located in Pine Knot, Kentucky. Wright has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his bank robbery and firearms convictions. [R. 1] Wright has been granted in forma pauperis status in this proceeding. See Order, R. 6.
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). 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 Wright'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), 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 Wright can not pursue his claims under 28 U.S.C. § 2241.
On August 24, 1992, a federal jury in Atlanta, Georgia, found Wright guilty of four counts of bank robbery, in violation of 18 U.S.C. § 2113, and four counts of using a handgun during the commission of the crime, in violation of 18 U.S.C. § 924(c). United States v. James H. Wright, No. 91:CR-211-01-GET (N. D. Ga. 1991) [R. 48, therein] On November 4, 1992, the district court sentenced Wright to a prison term of approximately 1030 months. See § 2241 Petition, [R. 1-2, p. 2, "Imprisonment"]
Wright appealed his sentence, but on October 5, 1994, the Court of Appeals affirmed his sentence. See United States v. Wright, 33 F.3d 1349 (11th Cir. 1994), cert. denied, 515 U.S. 1110, 115 S.Ct. 2262 (1995). The Court of Appeals held that the district court properly ordered Wright's four § 924(c) firearm sentences to run consecutively to his four bank robbery sentences, and that it also did not err by ordering the sentences imposed in 91-CR-211 to run consecutively to a prior § 924(c) sentence Wright received as a result of an earlier conviction (the "Augusta" sentence). Id. at 1350-51.
Wright previously filed two motions seeking to vacate, correct, or amend his sentence pursuant to 28 U.S.C. § 2255. He filed his first § 2255 motion on August 17, 1998 [R. 63, therein], but the district court denied it on January 12, 1999. [R. 66, therein] Wright appealed, but the Eleventh Circuit Court of Appeals determined that the § 2255 motion was barred by the applicable statute of limitations. [R. 80, therein]. On June 5, 2003, Wright filed a second § 2255 motion [R. 81, therein], but on October 31, 2003, the district court dismissed it as untimely. [R. 83, therein] Wright appealed, but the Court of Appeals determined that his "petition is plainly time-barred" and that Wright "had not shown good cause for the default." [R. 98, therein] The Court of Appeals therefore denied Wright a certificate of appealability.
On March 15, 2013, Wright filed a motion seeking permission to file a third § 2255 motion, arguing that two Supreme Court cases, Lafler v. Cooper, 132 S.Ct. 1376 (2012), and Missouri v. Frye, 132 S.Ct. 1399 (2012), provided grounds for filing a successive petition under § 2255. [R. 117, therein] Wright alternatively sought relief under 28 U.S.C. § 2241. [ Id. ] On April 29, 2013, the district court denied Wright's motion because he had not obtained the Court of Appeals' permission to file a successive § 2255 motion, but it provided Wright with the appropriate forms for seeking the Court of Appeals' permission to do so. [R. 118, therein]
In June 2013, the Eleventh Circuit denied Wright's application to file a successive § 2255 motion, stating that neither Frye nor Lafler qualified as new rules of constitutional law within 28 U.S.C.] § 2255(h)(2) "... because they merely involved the application of the Sixth Amendment right to counsel, as defined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to a specific factual context, and can not support an application to file a successive motion to vacate. In re Perez, 682 F.3d 930, 932 (11th Cir. 2012)." [R. 119, therein, see also In Re: James Wright, No. 13-12311-F (11th Cir. June 6, 2013)]
Wright also filed a prior habeas petition seeking relief from his sentence under 28 U.S.C. § 2241. James H. Wright v. Michael Bowers, No. 1:96-CV-0493-JEC (N. D. Ga. 1996) Because the activity in this action predated electronic filing, the Court can not electronically review the documents filed in that proceeding through PACER, but the docket sheet reveals that on August 19, 1996, the district court dismissed Wright's § 2241 petition. See Order, [R. 24, therein] Wright appealed that dismissal; the district court denied him pauper status on appeal; and both the district court and the Court of Appeals declined to issue a certificate of probable cause. [R. 28 and 29, therein]
CLAIMS ASSERTED IN § 2241 PETITION
Wright challenges his four consecutive 20-year prison terms imposed as a result of the four § 924(c) firearm convictions. He contends that because the district court had already sentenced him on the four bank robbery counts under § 2113, the imposition of the four consecutive 20-year sentences under § 924(c) subjected him to double jeopardy and violated his right to due process of law guaranteed by the Fifth Amendment of the U.S. Constitution.
Wright also alleges that because the sentence imposed in 91-CR-211 on November 4, 1992, was ordered to run consecutive to a prior sentence imposed for a separate bank robbery in another case, his current 1030-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, Wright 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 ...