United States District Court, E.D. Kentucky, Northern Division, Ashland
MEMORANDUM OPINION AND ORDER
HENRY R. WILHOIT, Jr., District Judge.
Edgar Muir is an inmate confined by the Bureau of Prisons ("BOP") in the Federal Correctional Institution-Ashland, located in Ashland, Kentucky. Proceeding without counsel, Muir has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 [D. E. No. 1], challenging his 211-month federal sentence, and a motion to amend his § 2241 petition [D. E. No. 4]. Muir has paid the $5.00 filing fee. [D. E. No. 3]
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 Muir'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).
For the reasons set forth below, the Court will deny Muir's habeas petition because the claims which he asserts cannot be pursued under 28 U.S.C. § 2241. The Court will grant Muir's motion to amend his § 2241 petition, but as explained below, will deny him the specific relief he requests in that motion.
On April 3, 2008, Muir pleaded guilty in a Tennessee federal court to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). United States v. Muir, No. 1:07-CR-97-CLC-SKL-1 (E.D. Tenn. 2007) [D. E. No. 22, therein] Three months later, Muir was sentenced to a 211-month prison term, followed by three years of supervised release. [ Id., D.E. No. 26, therein] Muir appealed, arguing that the district court erred in considering uncharged conduct when calculating his sentencing guidelines range. The Sixth Circuit, however, affirmed Muir's sentence. See id., [D. E. No. 30, therein]; see also United States of America, No. 08-5858 (6th Cir. Jan. 26, 2010)].
The Sixth Circuit concluded that when the district court sentenced Muir, it recognized the advisory nature of the federal sentencing guidelines and considered all relevant sentencing factors, including the presentence report, and that it did not err by considering uncharged conduct when calculating Muir's sentencing guidelines range. [ Id., p. 3, therein] The court explained that judicial fact-finding in sentencing proceedings using a preponderance of the evidence standard does not violate either Fifth Amendment due process rights or the Sixth Amendment right to trial by jury under United States v. Booker, 543 U.S. 220 (2005), and that accordingly, the facts supporting Muir's sentence enhancements did not require either Muir's admission or proof to a jury beyond a reasonable doubt. Id. The Sixth Circuit further noted that pursuant to 18 U.S.C. § 924(e), Muir faced a statutory maximum sentence of life imprisonment, but that he received only a 211-month prison sentence, well below the statutory maximum. [ Id., pp. 3-4, therein]
Based on the docket sheet from Muir's criminal proceeding and the information available from the on-line PACER database, Muir did not file a motion in the district court asking that his sentence be vacated, set aside, or corrected pursuant to 28 U.S.C. § 2255. In his habeas petition, Muir does not allege that he filed a motion seeking collateral relief pursuant to § 2255.
CLAIMS ASSERTED IN THE § 2241 PETITION
Muir alleges that the district court improperly sentenced him under the federal sentencing guidelines, in violation of his right to due process of law guaranteed by the Fifth Amendment of the U.S. Constitution. Muir alleges that in calculating the term of his sentence, the district court improperly relied upon incorrect "offense conduct" information contained in his Pre-Sentence Investigation ("PSI") Report, wherein the probation officer concluded that Muir possessed the firearm in connection with another felony offense - kidnapping. Muir contends that the PSI was inaccurate because it did not specify that on April 11, 2008, the State of Tennessee dismissed the state kidnapping charge against him and expunged that charge from his criminal record. See D. E. No. 1, p. 2; see also 4/11/08 "Order for the Expungement of Criminal Offender Record, " Circuit Court of Marion County, Tennessee, at Jasper [D. E. No. 1-4, p. 1].
Muir contends that because of the incorrect information contained in the PSI, the district court improperly relied on an expunged state court charge to enhance his federal prison sentence from 180 months to 211 months. Muir alleges that he is "actually innocent" of the kidnapping offense which the district court used to enhance his sentence, relying on a June 2013 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.
Muir further alleges that at sentencing, he received ineffective assistance of counsel, in violation of his right guaranteed by the Sixth Amendment of the U.S. Constitution. Muir contends that his trial counsel failed to advise the trial court that the PSI was incorrect with respect to the dismissal of the state kidnapping charge, and that had his counsel provided this material information to the district court, he would have received a substantially lower sentence. Muir seeks an order declaring his sentence to be "illegal and improper, " see id., p. 4, or alternatively, an order remanding his case to the district court for re-sentencing. [ Id. ] In a subsequent filing [D. E. No. 4], Muir also seeks permission to amend his 2241 petition to assert a claim challenging his current BOP security classification.
Muir 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, Muir challenges the constitutionality of his 211-month sentence 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 ...