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Newman v. Sepanek

United States District Court, E.D. Kentucky, Northern Division, Ashland

October 16, 2014

COREY CARLI NEWMAN, a/k/a CORY NEWMAN, [1] Petitioner,


HENRY R. WILLHOLT, Jr., District Judge.

Corey Carli Newman, a/k/a Cory Newman, is an inmate confined by the BOP in the Federal Correctional Institution located in Ashland, Kentucky. Newman has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his federal sentence resulting from his conviction for several drug and ammunition offenses. [D.E. No. 1] Newman has also filed two motions, a "Motion for Clerk's Entry of Default" [D.E. No. 2] and a "Motion for default Judgment" [D.E. No. 3] Newman has paid the $5.00 filing fee. [D.E. No. 1]

The Court reviews the § 2241 petition to determine whether, based on the face of the petition and any exhibits attached thereto, Newman is entitled to relief. See Rule 4, Rules Governing 28 U.S.C. § 2254 Cases; (applicable to § 2241 petitions under Rule 1(b)). See, e.g., Patton v. Fenton, 491 F.Supp. 156, 158-59 (M.D. Pa. 1979); see also 28 U.S.C. § 2243. A district court may summarily dismiss a petition if it appears from its face that the petitioner is not entitled to relief. See 28 U.S.C. § 2243; Blevins v. Lamanna, 23 F.Appx. 216, 218 (6th Cir. 2001); Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970).

The Court has reviewed Newman's petition, but determines that Newman has not alleged facts as to any of his claims that would entitle him to relief under § 2241. The Court will also deny as moot Newman's two pending motions.


On June 27, 2005, Newman pleaded guilty in a South Carolina federal court to one count of conspiracy to possess with intent to distribute a mixture of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846; one count of possession of equipment and chemicals used to manufacture a controlled substance/aiding and abetting in violation of 21 U.S.C. § 843(a)(6) and 18 U.S.C. § 2; and one count of possession of ammunition by a convicted felon in violation of 18 U.S.C. §§ 922(g), 942(a), and 924(e). United States v. Corey Newman, No. 6:04-CR-01127-GRA-8 (S.D.S.C.2004) [R. 124, therein]

On October 17, 2005, the district court imposed a 151-month prison sentence on each count, and ordered the terms to run concurrently. [R. 175, therein] The Criminal Judgment further provided that Newman's 151-month federal sentence "... shall be concurrent to the state sentence the defendant is currently serving and the state facility is designated as the federal incarceration location." [ Id., p. 2, therein]

On January 26, 2011, Newman filed a motion seeking a reduction of his sentence under 18 U.S.C. § 3582(c)(2), based on Amendment 742 to the United States Sentencing Guidelines ("Sentencing Guidelines"). [R. 229, therein] In that motion, Newman also challenged the predicate offenses used to enhance his federal sentence, arguing that at sentencing, the district court improperly used his prior convictions to increase his criminal history points. [ Id. ] On February 4, 2011, the district court denied Newman's motion for a sentence reduction, finding that because Amendment No. 742 did not apply retroactively to the Sentencing Guidelines, no grounds existed for reducing Newman's sentence under § 3582. [R. 232, pp. 3-4, therein] The district court further construed Newman's challenge to the term of his sentence as a collateral challenge which fell under 28 U.S.C. § 2255, id., at pp. 4-5, and indicated that such a construed motion would likely be time-barred, id., pp. 5-7, but the district court gave Newman twenty (20) days in which to object to the re-characterization before ordering it to be done. Id., pp. 7-8.

On February 25, 2011, the clerk of the district court docketed Newman's previously filed January 26, 2011, § 3582(c)(2) motion (in which he had requested a sentence reduction) as a motion to vacate his sentence under 28 U.S.C. § 2255. [R. 244, therein] On March 18, 2011, the district court denied Newman's § 2255 motion on the grounds that it was barred by the one-year statute of limitation set forth in 28 U.S.C. 2255(f)(1). [R. 251, therein] Newman appealed, but on June 21, 2011, the Fourth Circuit Court of Appeals affirmed the denial of his § 2255 motion. [R. 255, therein] On May 23, 2012, Newman filed a second § 2255 motion [R. 261, therein], which the district court dismissed for lack of jurisdiction as an unauthorized second or successive § 2255 motion. [R. 262, therein] On November 6, 2012, the Fourth Circuit affirmed the dismissal. [R. 285, therein]

While his second appeal was pending, Newman filed a motion for relief from his sentence based on United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). [R. 274, therein] The district court denied that motion, finding that it lacked jurisdiction to consider the motion while Newman's case was on appeal. [R. 275, therein] After the Fourth Circuit's ruling, Newman filed another § 2255 motion, which the district court construed as a second or successive § 2255 motion and dismissed for lack of jurisdiction on December 19, 2012. [R. 288, therein]

On January 10, 2013, Newman filed a motion seeking reconsideration of that dismissal. [R. 291, therein] On January 14, 2013, the district court denied the motion, finding that Newman had not alleged any facts that would warrant relief under Federal Rule of Civil Procedure 59(e), and that the dismissal of the motion was correct because it lacked jurisdiction to entertain an unauthorized second or successive § 2255 motion. [R. 294, therein] Newman again appealed. [R. 296, therein] On April 2, 2013, the Fourth Circuit denied Newman a certificate of appealability, finding that he had not shown that the district court's ruling amounted to a denial of a constitutional right. [R. 303, therein]


Newman asserts three arguments in his § 2241 petition. First, Newman seeks relief from his federal sentence, alleging that that it exceeds the statutory maximum of 10 years (120 months) set forth in 18 U.S.C. § 924(a)(2) by thirty-one (31) months. Newman claims that the district court improperly enhanced his sentence under the federal sentencing guidelines, and that it determined facts as to drug quantity that should have been determined by a jury. Newman alleges that the enhancement of his sentence violates his right to due process of law, guaranteed by the Fifth Amendment of the U.S. Constitution, and his right to have a jury determine any facts that increase the term of his sentence, guaranteed by the Sixth Amendment of the U.S. Constitution.

In support of this argument, Newman 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. Newman contends that because Alleyne applies retroactively and affords ...

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