United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
JOSEPH M. HOOD, Senior District Judge.
Exie Tatum, Jr., is an inmate confined by the Bureau of Prisons ("BOP") in the Federal Prison Camp located in Duluth, Minnesota. Proceeding without an attorney, Tatum has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his federal convictions and the consecutive 60-month portion of his 190-month prison sentence.
The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F.App'x 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 Tatum's § 2241 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 Tatum's 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 Tatum's habeas petition because the claims which he asserts cannot be pursued under 28 U.S.C. § 2241.
In May 2007, a federal jury in Milwaukee, Wisconsin, convicted Tatum of possession with intent to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(c) (Count I); possession of a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count II); and being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count III). United States v. Exie Tatum, Jr., No. 2:06-CR-231-RTR-1 (E.D. Wis. 2006) [R. 30, therein]
In August 2007, the Wisconsin district court entered an Amended Judgment sentencing Tatum to a 211-month term of imprisonment, comprised of a 151-month sentence on Count I; a concurrent 120-month sentence on Count III; and a consecutive 60-month sentence as to the § 922(g) firearm conviction on Count II. [R. 40, therein (amending R. 37, therein)]
Tatum appealed, but on November 24, 2008, his conviction was affirmed. United States v. Tatum, 548 F.3d 584 (7th Cir. 2008) Tatum challenged his underlying convictions on several evidentiary grounds, but as to his 211-month sentence, he asked only that it be remanded and recalculated under the revised crack sentencing guidelines. Id. at 588. The Seventh Circuit refused to do so but informed Tatum that he was free to file a motion in the district court under 18 U.S.C. § 3582(c)(2), and request a sentence reduction under Amendment 706 to the Sentencing Guidelines. Id.
On November 19, 2009, Tatum filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Exie Tatum, Jr. v. United States, No. 2:09-CV-1093-RTR (D. Wis. 2009) [R. 1, therein]. The sole claim which Tatum asserted in his § 2255 motion was that during his criminal proceeding, he was denied effective assistance of counsel in violation of his Sixth Amendment rights because counsel did not file a motion to suppress the drug evidence that was found on his (Tatum's) person during booking on February 1, 2005, and that was later admitted into evidence at trial. [ Id. ]
On November 30, 2009, the district court denied Tatum's § 2255 motion, finding that it was "plainly without merit" because his ineffective assistance of counsel claim was predicated upon underlying contentions that the court of appeals had previously considered on appeal, and rejected. [R. therein (citing Tatum, 548 F.3d at 587-88)]. Tatum appealed that ruling, but the Seventh Circuit dismissed the appeal and denied as moot the motion for a certificate of appealability because Tatum failed to pay the required docketing fee within the time prescribed. [R. 13, therein; see also Exie Tatum, Jr., v. United States, No. 10-1285 (7th Cir. Mar. 3, 2010)]
On March 8, 2012, Tatum filed a motion seeking a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2). See Tatum Criminal Proceeding, 2:06-CR-231-RTR-1 (D. Wis.) [R. 52, therein] On March 19, 2012, the district court granted Tatum's motion and reduced his total prison term from 211 months to 190 months. [R. 54, therein] Tatum then supplemented his § 3582 motion with a request for an additional reduction, arguing that the district court erred by not reducing his sentence under both Amendment 706 and Amendment 750, and that the Federal Defender Service rendered ineffective assistance of counsel by failing to request a sentencing reduction in 2008, after Amendment 706 took effect. [R. 55, therein]
The district court denied Tatum's supplemental request. [R. 60, therein] Tatum appealed, but the Seventh Circuit affirmed. [R. 66, therein, see also United States v. Exie Tatum, Jr., 500 F.App'x 508 (7th Cir. Jan. 8, 2013)]
CLAIMS ASSERTED IN § 2241 PETITION
In his § 2241 petition, Tatum argues that the district court engaged in "double-counting" when it sentenced him for being a felon in possession of a firearm and for possessing the same firearm in furtherance of a drug crime. See § 2241 Petition, [R. 1, p. 5; p. 7] Tatum contends that the district court allowed him to be charged with a § 922(g) firearm offense and then improperly used that same firearm offense to enhance his sentence under § 924(c). Id., p. 9. Tatum asserts that "... when a single aspect of a ...