United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
DANNY C. REEVES, District Judge.
Jason Best ("Best") is an inmate currently confined in the United States Penitentiary-McCreary in Pine Knot, Kentucky. Proceeding without an attorney, Best filed a petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the legality of his federal conviction. [Record No. 1] However, because a § 2241 petition is not the proper avenue for obtaining the relief sought, his petition will be denied.
In July 2002, a federal jury in Indiana found Best guilty of five drug-related offenses, including one count of conspiracy to distribute crack cocaine, two counts of possession with intent to distribute crack cocaine, and two counts of maintaining a place for distribution of crack cocaine. [ See United States v. Jason Best, Criminal Action No. 2:00-CR-171 (N.D. Ind. 2000).] In 2004, Best was sentenced to life imprisonment on the conspiracy count, as well as terms of imprisonment ranging from 240 to 480 months on the other four counts - all to be served concurrently. [ Id., at Record No. 554 therein]
Best appealed his sentence, arguing that his trial counsel had been ineffective. However, the Seventh Circuit Court of Appeals rejected his arguments and affirmed Best's conviction and sentences, holding that Best could not demonstrate that his counsel's alleged failings caused him any prejudice because of the "overwhelming evidence" that the government had presented against him, including testimony from twenty-one witnesses. United States v. Best, 426 F.3d 937, 944-47 (7th Cir. 2005).
Best later moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The trial court denied the motion, declining to address Best's ineffective-assistance-of-counsel claims because the Seventh Circuit had already rejected them on direct appeal. United States v. Jason Best, Criminal Action No. 2:00-CR-171, 2008 WL 4414686, at *4 (N.D. Ind., Sept. 22, 2008). On December 16, 2013, Best filed the current petition for habeas relief under § 2241. [Record No. 1]
The Court conducts an initial review of habeas petitions. See 28 U.S.C. § 2243; Alexander v. N. Bureau of Prisons, 419 F.Appx. 544, 545 (6th Cir. 2011). It must deny a petition "if it plainly appears from the [filing] 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)). Because Best is not represented by an attorney, the Court evaluates his petition under a more lenient standard. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts Best's factual allegations as true, and construes all legal claims in his favor. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
Best contends that he is "actually innocent" of the two counts of the indictment charging him with possession of crack cocaine with the intent to distribute (Counts 2 and 3) and that his trial attorneys were ineffective and denied him compulsory process when they failed to call his cousin, Dennis Best, as a witness during trial. According to Best, Dennis Best was charged in state court with the same offense of possession with intent to distribute the same drugs that were the subject of Counts 2 and 3 of Best's federal Indictment. He maintains that his cousin Dennis Best pleaded guilty in state court to that charge. Best claims that if Dennis Best had been called as a witness at his trial, he would have testified that all of the drugs belonged to him and that Jason Best had no involvement with them. According to Best, this testimony would have demonstrated to the jury that he was "actually innocent" of these two counts.
Best's claim is not cognizable in this § 2241 proceeding. As a general rule, 28 U.S.C. § 2255 provides the correct avenue to challenge a federal conviction or sentence, whereas a federal prisoner may file a § 2241 petition if he is challenging the execution of his sentence, i.e., the Bureau of Prisons' calculation of sentence credits or other issues affecting the length of his sentence. See United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001); see also Charles v. Chandler, 180 F.3d 753, 755-56 (6th Cir. 1999). The Sixth Circuit has explained the difference between the two statutes as follows:
[C]ourts have uniformly held that claims asserted by federal prisoners that seek to challenge their convictions or imposition of their sentence shall be filed in the [jurisdiction of the] sentencing court under 28 U.S.C. § 2255, and that claims seeking to challenge the execution or manner in which the sentence is served shall be filed in the court having jurisdiction over the prisoner's custodian under 28 U.S.C. § 2241.
Terrell v. United States, 564 F.3d 442, 447 (6th Cir. 2009) (internal quotation marks omitted). Therefore, 28 U.S.C. § 2255 provides the primary avenue for federal prisoners seeking relief from an unlawful conviction or sentence, not § 2241.
The "savings clause" in § 2255(e) provides a narrow exception to this rule. Under this provision, a prisoner is permitted to challenge the legality of his conviction through a § 2241 petition if his remedy under § 2255 "is inadequate or ineffective" to test the legality of his detention. 28 U.S.C. § 2255(e). This exception does not apply if a prisoner fails to seize an earlier opportunity to correct a fundamental defect in his or her convictions under pre-existing law, or actually asserted a claim in a prior post-conviction motion under § 2255 but was denied relief. Charles, 180 F.3d at 756. A prisoner proceeding under § 2241 can implicate the savings clause of § 2255 if he alleges "actual innocence." Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir. 2003). However, a defendant may only pursue a claim of actual innocence under § 2241 when that claim is "based upon a new rule of law made retroactive by a Supreme Court case." Townsend v. Davis, 83 F.Appx. 728, 729 (6th Cir. 2003). "It is the petitioner's burden to establish that his remedy under § 2255 is inadequate or ineffective." Charles, 180 F.3d at 756.
Here, Best has simply repackaged his ineffective-assistance-of-counsel claim (a claim he raised on direct appeal and in his § 2255 motion) as an "actual innocence" claim. But such a tactic is impermissible. See Hodgson v. Warren, 622 F.3d 591, 601 (6th Cir. 2010) ("[A] claim of actual innocence' is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)). Indeed, several courts have explicitly rejected reliance on ineffective assistance of ...