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Perez v. Sepanek

United States District Court, E.D. Kentucky, Northern Division, Ashland

April 1, 2014

ISRAEL PEREZ, Petitioner,
v.
MICHAEL SEPANEK, WARDEN, Respondent.

MEMORANDUM OPINION AND ORDER

HENRY R. WILHOIT, Jr., District Judge.

Israel Perez is an inmate confined in the Federal Correctional Institution located in Ashland, Kentucky. Perez has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his 1997 federal drug conviction from the United States District Court for the Southern District of New York. [D. E. No. 1] Perez has paid the $5.00 filing fee. [Id.]

The Court reviews the § 2241 petition to determine whether, based on the face of the petition and any exhibits attached thereto, Perez is entitled to relief. See Rule 4, Rules Governing 28 U.S.C. § 2254 Cases; (applicable to § 2241 petitions under Rule 1(b)). See, e.g., Patton v. Fenton, 491 F.Supp. 156, 158-59 (M.D. Pa. 1979) ; see also 28 U.S.C. § 2243. A district court may summarily dismiss a petition if it appears from its face that the petitioner is not entitled to relief. See 28 U.S.C. § 2243; Blevins v. Lamanna, 23 F.Appx. 216, 218 (6th Cir. 2001); Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970).

The Court has reviewed Perez's habeas petition and attached memorandum, but determines that it must deny the petition because Perez cannot not pursue his claims under 28 U.S.C. § 2241.

PEREZ'S CRIMINAL HISTORY

1. New York Drug Conviction

In May 1990, Perez, Antonio Perrone, and Ramon Emilio Gomez were charged in a New York federal court with conspiracy to manufacture cocaine in violation of 21 U.S.C. §§ 841(a)(I) and (846), and with possession of "listed chemicals" (acetone and ether) with intent to manufacture cocaine, in violation of 21 U.S.C. §§ 802(33), 802 (35), 812, 841(a), 841(d)(1), 841(d)(2) and 18 U.S.C. § 2. United States v. Perrone, et al., No.1: 90-CR-31-LLS-3 (S. D. N.Y. 2003)[1]

A jury convicted Gomez and Perrone of conspiracy to manufacture cocaine and of possession of listed chemicals with intent to manufacture cocaine; they were sentenced respectively to 126 and 140 months' incarceration; and they appealed. On June 13, 1991, the Second Circuit affirmed their convictions in part, reversed in part, and remanded, holding that Gomez's conviction for conspiracy to manufacture cocaine under § 841(a) was not supported by the evidence, and that while Perrone's conviction of possessing listed chemicals with the requisite intent was proper, his conviction for conspiracy to manufacture cocaine under § 841(a) was also not supported by sufficient evidence.[2] United States v. Perrone, 936 F.2d 1403, 1405 (2d Cir. 1991)

In January 1997, Perez pleaded guilty to Count 2 (conspiracy to manufacture cocaine), and the government dismissed the other counts against him. On May 11, 1997, the district court sentenced Perez to a 27-month prison term, which was to run concurrently with a prior sentence imposed on him by the federal court in Puerto Rico. [R. 8, therein ("the New York Sentence")] The New York Sentence was to terminate after the expiration of 27 months, or the date on which Perez completed service of his prior Puerto Rico federal sentence, whichever event occurred first. [Id.] According to the docket sheet from Perez's New York criminal case, Perez neither appealed the New York Sentence nor filed a motion under 28 U.S.C. § 2255 asking that it be vacated or set aside.

2. Florida Drug Conviction

In February 2001, Perez was indicted in Miami, Florida, and charged with committing federal drug offenses. United States v. Perez, No. 1:01-CR0139-ASG-6 (S.D. Fla. 2001). Perez eventually pleaded guilty to conspiracy to possess with intent to distribute five kilograms or more of cocaine, and on October 9, 2002, he was sentenced to a 360-month prison term and a 10-year supervised release term. [R. 169, therein ("the Florida Sentence")]

Perez did not appeal the Florida Sentence, but he filed two unsuccessful motions seeking to vacate or set it aside pursuant to 28 U.S.C. § 2255. In March 2004, Perez filed his first § 2255 motion challenging the Florida Sentence. Perez v. United States, No.1:04-CV-20485-SH (S.D. Fla. 2004) In October 2004, the Magistrate Judge's recommended that the motion be denied untimely under 28 U.S.C. § 2255(t) [D. E. No. 17, therein], and on January 31, 2005, the district court adopted that recommendation and denied Perez's § 2255 motion. [D. E. No. 23, therein] Perez did not appeal that ruling.

In February 2008, Perez filed his second § 2255 motion challenging the Florida Sentence. Perez v. United States, No.1:08-CV-20309-SH (S.D. Fla. 2008) On April 18, 2008, the district court denied the motion as a second, unauthorized § 2255 motion for which Perez had not obtained permission from the Eleventh Circuit Court of ...


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