United States District Court, E.D. Kentucky
MEMORANDUM OPINION AND ORDER
DAVID L. BUNNING, District Judge.
Anthony Gene Mays ("Petitioner") is an inmate currently confined in the United States Penitentiary-McCreary in Pine Knot, Kentucky. Mays, proceeding pro se, has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the legality of his federal conviction. (Doc. # 1). Mays has also moved for the appointment of counsel. (Doc. # 2).
The Court conducts an initial review of habeas petitions, and will dismiss those petitions that are meritless on their face. 28 U.S.C. § 2243; Allen v. Perini, 424 F.2d 134, 141 (6th Cir.1970). The Court evaluates the 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). At this stage, the Court accepts Petitioner'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).
Despite taking a liberal approach to Petitioner's claims, the Court will dismiss them. His § 2241 petition cannot succeed, and the Court will also deny as moot his motion for the appointment of counsel.
II. Factual and Procedural Background
On April 27, 2010, a federal jury in Arkansas found Petitioner guilty of three federal offenses: being a felon in possession of a firearm, attempting to kill an officer of the United States Government, and carrying a firearm in relation to a crime of violence. Jury Verdict, United States v. Mays, No. 4:10-CR-055 (E.D. Ark. 2010), ECF No. 20. At Petitioner's sentencing hearing on October 25, 2010, the district court imposed a 120-month sentence on Count 1, a 240-month sentence on Count 2 (ordered to run consecutively to the Count 1 sentence), and a 120-month sentence on Count 3, ordered to run consecutively to the sentences on Counts 1 and 2, for a total sentence of 480 months. Judgment, Mays, No. 4:10-CR-055, ECF No. 29.
Petitioner appealed, contending that the trial court had erred in denying his motion to suppress identification evidence and in overruling his objection raised pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), to the government's striking of two prospective jurors. The Eighth Circuit rejected his arguments and affirmed the conviction. United States v. Mays, No. 10-3385 (8th Cir. May 4, 2011) (unpublished).
Petitioner then moved the trial court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Mays claimed that he had received ineffective assistance of counsel for various reasons, both at trial and on appeal. Pro Se Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. 2255, Mays, No. 4:10-CR-055, ECF No. 48. On September 23, 2011, the trial court denied Petitioner's § 2255 motion and ordered that no certificate of appealability would issue. Opinion and Order, Mays, No. 4:10-CR-055, ECF No. 63. Petitioner then applied to the Eighth Circuit for a certificate of appealability, and the Eighth Circuit referred the case to the district court to determine whether a certificate of appealability should issue. Order of United States Court of Appeals for the Sixth Circuit, Mays, No. 4:10-CR-055, ECF No. 66. On January 10, 2012, the district court again determined that Petitioner was not entitled to a certificate of appealability, and the Eighth Circuit concurred. Order Denying Certificate of Appealability, Mays, No. 4:10-CR-055, ECF No. 67; Judgment of United States Court of Appeals for the Sixth Circuit, Mays, No. 4:10-CR-055, ECF No. 68. The U.S. Supreme Court declined to review the case. Letter from Clerk of the United States Court of Appeals for the Sixth Circuit, Mays, No. 4:10-CR-055, ECF No. 71.
On January 24, 2014, Mays filed the present petition for habeas relief under § 2241. (Doc. # 1)
Section 2241 is an odd-and ultimately unsuccessful-launching pad for Petitioner's claims. As a general rule, 28 U.S.C. § 2255 provides the correct avenue to challenge a federal conviction or sentence, while § 2241 petitions challenge the execution of a 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 United States Court of Appeals for 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). Accordingly, claims like the present one usually ...