United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
KAREN K. CALDWELL, District Judge.
Jammie Terrail Hairston is an inmate confined by the Bureau of Prisons ("BOP") in the Federal Medical Center, in Lexington, Kentucky. Proceeding without counsel, Hairston has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R.1], challenging part of the 240-month federal sentence which he is currently serving. Hairston has paid the $5.00 filing fee. [R. 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 Hairston'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).
As explained below, the Court will deny Hairston's habeas petition because the claims which he asserts cannot be pursued under 28 U.S.C. § 2241.
On August 23, 2000, a federal grand jury in Indiana returned a two-count indictment against Hairston alleging that he possessed more than fifty (50) grams of cocaine base crack with intent to distribute in violation of 21 U.S.C. § 841 (Count 1) and that he brandished, discharged or used or carried a firearm during and relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count 2). United States v. Hairston, No. 1:00-CR-42-WCL-RBC-1 (N.D. Ind. 2000) Hairston pleaded not guilty to both counts and proceeded to trial, but the jury convicted him on both counts. Hairston was originally sentenced to 330 months imprisonment which included 210 months on Count 1 and a mandatory consecutive 120 months on Count 2. The district court enhanced Hairston's sentence by two points based upon a finding that he obstructed justice by providing false testimony at trial.
On appeal, Hairston raised a single issue: that the evidence at trial did not show that he wanted to distribute crack or that the gun he brandished was used during his drug business. In a two-paragraph unpublished opinion, the Seventh Circuit Court of Appeals affirmed Hairston's conviction. United States v. Hairston, No. 01-2386 (7th Cir. Nov. 16, 2001)
In November 2002, Hairston filed a motion to vacate his sentence under 28 U.S.C. § 2255, arguing that the district court erred in enhancing his sentence for obstruction of justice, because the enhancement took his sentence beyond the statutory maximum for the offense in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). [R. 65, therein] Hairston also alleged ineffective assistance of counsel based upon his counsel's alleged failure to advise him properly with respect to whether he should have accepted the government's plea agreement. On February 18, 2003, the district court denied Hairston's § 2255 motion. [R. 72, therein]
Hairston then moved the district court to vacate his sentence under Fed.R.Civ.P. 60(b), arguing that he was entitled to relief from his conviction and sentence pursuant to United States v. Booker, 543 U.S. 220 (2005), which extended the rule in Blakely v. Washington, 542 U.S. 296 (2004), to strike down the mandatory portion of the United States Sentencing Guideline regime. The district court denied Hairston's Rule 60(b) motion, finding that it was actually a second or successive 2255 motion over which it lacked jurisdiction, because Hairston had not obtained the Seventh Circuit's permission to file a successive § 2255 motion. United States v. Hairston, No. 1:00-CR-42, 2006 WL 449206 (N.D. Ind. Feb. 22, 2006). The Court explained that Hairston was not challenging any procedural aspect of the order denying his 2255 motion, but that he was instead repeating the same substantive arguments he had raised in his original § 2255 motion, and asserting new claims for relief under Booker. Hairston, 2006 WL 449206 at *2. Hairston appealed, but the Seventh Circuit denied him a certificate of appealability. See Hairston Criminal Case, 1:00-CR-42 (N. D. Ind.) [R. 94, therein]; Jammie T Hairston v. United States, No. 06-1759 (7th Cir. April 25, 2006).
On April 9, 2009, the district court granted Hairston's motion for a sentence reduction pursuant to 18 U.S.C. § 3582, and reduced Hairston's sentence on Count 1 from 210 months to 168 months. [R. 118, therein] On December 19, 2011, the district court again granted Hairston another sentence reduction, and reduced his sentence on Count 1 from 168 months to 120 months. [R. 130, therein] The district court did not reduce the sentence on Count 2 (Hairston's § 924 (c) conviction) on either date.
CLAIMS ASSERTED IN THE § 2241 PETITION
Hairston alleges that he should have received a 5-year sentence on his § 924(c) conviction for using a firearm during or in relation to a drug transaction, and that the district court improperly sentenced him to a higher 10-year mandatory minimum sentence. Hairston claims that in imposing a higher mandatory minimum sentence, the district court relied on facts not charged in the indictment. Broadly construing Hairston's claim on this issue, he is alleging that the district court violated his right to due process of law guaranteed by the Fifth Amendment of the U.S. Constitution.
Hairston relies 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. Hairston seeks an order which vacates "the firearm count" of his ...