United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
DAVID L. BUNNING, District Judge.
Michael Harris is an inmate confined by the Bureau of Prisons ("BOP") in the Federal Correctional Institution-Manchester located in Manchester, Kentucky. Proceeding without counsel, Harris has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1], challenging the federal drug and firearm sentences which he is currently serving. Harris has paid the $5.00 filing fee. [R. 5]
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 Harris'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). The Court also 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 Harris's habeas petition because the claims which he asserts cannot be pursued under 28 U.S.C. § 2241.
On May 28, 1997, a federal grand jury in Indiana returned an indictment alleging that in December 1996, Harris and two other individuals committed numerous federal drug and firearm offenses. United States v. Michael Harris, et al., No. 1:97-CR-63-LJM-DML (S.D. Ind. 1997). [R. 1, therein] The case proceeded to trial, and Harris and his two codefendants were found guilty of conspiracy to possess with intent to distribute and to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846, and of possession with intent to distribute cocaine and/or cocaine base in violation of 21 U.S.C. § 841(a)(1). In addition, Harris was convicted of numerous firearm offenses,  and he received a life sentence. On appeal, his conviction was affirmed. United States v. Thornton, 197 F.3d 241 (7th Cir. 1999)
The docket sheet from Harris's criminal proceeding reveals that on March 28, 2000, Harris filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, and that on February 26, 2001, the district court denied that motion. See Harris Criminal Action, No. 1:97-CR-63-LJM-DML [R. 1, p. 9, therein] Harris appealed the denial of his § 2255 motion, but the Seventh Circuit Court of Appeals denied him a certificate of appealability. United States v. Harris, No. 01-1791 (7th Cir. Nov. 13, 2011)
On May 17, 2012, Harris filed a second motion to vacate his sentence under § 2255. Michael Harris v. United States, No. 1:12-CV-675-LJM-DML (S.D. Ind., 2012) [R. 1, therein] Harris challenged the enhancement of his sentence based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), and further argued that in numerous instances during his criminal proceeding, he had received ineffective assistance of counsel. On May 24, 2012, the district court denied Harris's motion for lack of jurisdiction, finding that the Seventh Circuit Court of Appeals had not authorized the filing of a second or successive § 2255 motion, and denied Harris a certificate of appealability. [ Id., R. 3, therein] Harris appealed the denial of his second § 2255 motion, but the Seventh Circuit Court of Appeals again refused to issue a certificate of appealability, finding that his second § 2255 motion "...is an unauthorized successive collateral attack." [ Id., R. 13, p. 3, therein; see also Harris v. United States, No. 12-2429, p. 2 (7th Cir. Jan. 31, 2013)] The mandate issued on March 25, 2013. [ Id., pp. 1-2, therein]
CLAIMS ASSERTED IN THE § 2241 PETITION
Harris alleges that the Pre-Sentence Investigations Report ("PSIR"), on which the district court relied in calculating the term of his sentences, contained numerous errors as to his offense level and criminal history. Harris asserts that in calculating the term of his sentences, the district court improperly relied on the inaccurate PSIR and deviated from the United States Sentencing Guidelines ("USSG"), and thus imposed a higher sentence than what was warranted under the USSG. Harris also alleges that the district court improperly imposed a consecutive 30-year sentence on the § 924(c) firearm conviction. Harris's claims on these issues allege a denial of due process of law, guaranteed by the Fifth Amendment of the U.S. Constitution.
Finally, Harris further contends that the Indictment under which he was charged was constitutionally defective because it failed to allege the amount of drugs in question, noting that no special jury verdict as to drug quantity was included with the jury instructions. Harris asserts that because the issue of drug quantity was determined at sentencing by the district court, not the jury, his life sentence on the drug offenses violates his right to a jury trial in a criminal proceeding, which is guaranteed by the Sixth Amendment of the U.S. Constitution.
In support of his Sixth Amendment argument, Harris cites the United States Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151 (2013). In Alleyne, the Supreme Court 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. Harris contends that Alleyne applies retroactively and affords his relief from his sentences, and that accordingly, this Court should vacate sentences pursuant to 28 U.S.C. § 2241.
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 BOP's 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 Chandler, 180 F.3d ...