United States District Court, E.D. Kentucky, Northern Division, Ashland
MEMORANDUM OPINION AND ORDER
HENRY R. WILHOIT, Jr., District Judge.
Blair Arroyo ("Arroyo") is a federal inmate presently confined at the Federal Correctional Institution-Englewood ("FCI-Englewood") located in Littleton, Colorado. Arroyo was formerly an inmate at the Federal Correctional Institution at Ashland, Kentucky. While there, he filed the present habeas corpus petition, pursuant to 28 U.S.C. § 2241, seeking relief from a prison sentence he alleges was erroneously imposed. [D. E. No. 1] Specifically, Arroyo requests that his conviction and sentence on Count 2 of the indictment be vacated. He has paid the requisite $5.00 filing fee. [D.E. No. 1-2]
The Court reviews the § 2241 petition to determine whether, based on the face of the petition and any exhibits attached thereto, Arroyo 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 the petition, but determines that Arroyo has not alleged facts as to any of his claims that would entitle him to relief under § 2241.
On December 11, 2008, Arroyo and three co-defendants were indicted in a four-count indictment for violations of the Federal Controlled Substances Act. Arroyo was charged in Counts 1, 3, and 4 of the indictment. United States v. Blair Arroyo, et al., No. 08-308 (E.D. La. 2008) [D. E. No. 1 therein] Count 1 charged all defendants with a violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Counts 3 and 4 charged Blair with knowingly and intentionally using a communications facility, viz., a telephone, in committing the violations of 21 U.S.C. §§ 841(a)(1) and 846, all in violation of 21 U.S.C. § 843(b). Subsequently, on January 22, 2009, Blair was indicted in a superseding indictment and charged with three additional counts. Count 5 charged him with possessing with the intent to distribute quantities of anabolic steroids, a Schedule III controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D). Counts 6 and 7 were firearms counts, charging Arroyo with the possession of numerous firearms, in furtherance of drug trafficking crimes, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). [D.E. No. 32 therein] Additionally, on May 11, 2009, a three-count superseding information was filed against Arroyo. [D.E. No. 53 therein] Count 1 charged that between May 2007 and December 16, 2008, Arroyo conspired with others to distribute and possess with the intent to distribute 500 grams or more of cocaine hydrochloride, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. Count 2 charged him with the possession of numerous firearms, in furtherance of drug trafficking crimes, in violation of 18 U.S.C. § 924(c)(1)(A), and Count 3 charged that in December of 1999, Arroyo was convicted in Louisiana state court for the distribution and possession with the intent to distribute marijuana, in violation of Louisiana Revised Statute 40:966, a count that was charged pursuant to 21 U.S.C. § 851(a). Id.
Prior to trial, Arroyo entered into a Plea Agreement with the United States, agreeing to plead guilty to the three-count superseding information, with the United States agreeing to dismiss the superseding indictment against Arroyo at the time of sentencing. [D.E. No. 54 therein] As part of his plea agreement, Arroyo waived his right to appeal from his conviction and/or his sentence, and he waived his right to contest his conviction and/or sentence in any collateral proceeding, including proceedings brought under 28 U.S.C. §§ 2241 and 2255, on any grounds, except that he "may bring a post conviction claim if the defendant establishes that ineffective assistance of counsel directly affected the validity of this waiver of appeal and collateral challenge rights or the validity of the guilty plea itself." [D.E. No. 54, Page 2 therein] The Plea Agreement is memorialized in a letter to the presiding district judge, Judge Mary Ann Vial Lemmon, and is signed by Arroyo, Arroyo's counsel, and counsel for the United States.
On January 21, 2010, the district court imposed a 120-month prison sentence on Count 1, and a consecutive, 60-month sentence on Count 2, for a total sentence of 180 months, and then dismissed all remaining counts against Arroyo. [D.E. No. 132 therein]
Arroyo appealed his conviction, but withdrew his appeal shortly after filing. [D.E. No. 135, 141 therein] Arroyo did not file a motion in the trial court to vacate, set aside or correct sentence, pursuant to 28 U.S.C. § 2255.
CLAIM ASSERTED IN THE § 2241 PETITION
Arroyo challenges his conviction on Count 2 of the superseding information, viz., the violation of 18 U.S.C. § 924(c)(1)(A). Arroyo acknowledges that he committed a drug trafficking offense, but he claims that he is "actually innocent" of possessing a firearm in furtherance of a drug trafficking crime; therefore, he was unlawfully convicted and sentenced on that offense. As grounds for his "actual innocence" argument, Arroyo states that he was a gun-collector and lawfully owned firearms, but that all of his firearms, except for one loaded pistol that was locked up in his tool box at his place of employment, Hunter Machining, "were all located and stored in a rental property owned by Arroyo and rented to younger undocumented aliens, and were never around any drugs, drug proceeds, or drug manufacturing materials, nor were any of the firearms used to protect or enforce any drug activity;" [D.E. No. 1, Page ID# 8]
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 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 ...