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Delaney v. Holland

United States District Court, E.D. Kentucky, Southern Division, London

July 14, 2015

J. C. HOLLAND, Warden, Respondent.


KAREN K. CALDWELL, Chief District Judge.

Phillip Terry Delaney is a federal inmate confined in the United States Penitentiary-McCreary ("USP-McCreary") located in Pine Knot, Kentucky. Proceeding pro se, Delaney has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his conviction on the firearms offenses for which he was convicted in the Southern District of West Virginia, claiming that he is "actually innocent" of these offenses. [R. 1]. Delaney requests the dismissal of that indictment.

The Court conducts an initial review of habeas petitions. 28 U.S.C. § 2243; Alexander v. N. Bureau of Prisons, 419 F.Appx. 544, 545 (6th Cir. 2011). It must deny a petition "if it plainly appears from the [filing] 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 Delaney'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). At this stage, the Court accepts Delaney'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).

Even liberally construing Delaney's claim, this Court cannot grant him the relief he seeks, i.e., the dismissal of the indictment. The Court will therefore deny Delaney's § 2241 petition and dismiss this proceeding.


On February 22, 2006, Delaney was charged in a two-count indictment with escape from a community correctional facility, in violation of 18 U.S.C. § 751(a), with possession of various firearms, and with being a felon in possession of a firearm, all in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). See United States v. Phillip Terry Delaney, No. 2:06-cr-039 (S.D. West Va. 2006) [R. 13 therein].

On May 5, 2006, Delaney pled guilty to the escape charge contained in Count One of the indictment [ Id., at R. 89; R. 92 therein], but he proceeded to trial on the remaining charges.[1] On May 12, 2006, the jury found him guilty of the remaining charges, the firearms offenses. [ Id., at R. 109 therein]. Delaney was sentenced on July 25, 2006, and received a 5-year sentence on Count One, and a consecutive 10-year sentence on Count Two, for a total sentence of 15 years, to be followed by a 3-year term of supervised release. [ Id., at R. 122 therein].

Delaney appealed his conviction and sentence for being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g) (1), as charged in Count Two of the original indictment. On January 25, 2007, the Fourth Circuit Court of Appeals affirmed his conviction and sentence. United States v. Phillip Terry Delaney, 214 F.Appx. 356, 2007 WL 186790 (4th Cir. W.Va. January 25, 2007) (unpublished). The United States Supreme Court denied Delaney's petition for a writ of certiorari. See Phillip Terry Delaney v. United States, No. 06-10772 (U.S. October 10, 2007).

Delaney did not file a motion in the trial court to set aside, vacate, or correct his sentence under 28 U.S.C. § 2255. He asserts that he is entitled to pursue his claim for relief via a § 2241 habeas petition because the statute of limitations for filing a § 2255 motion has expired.


In the present § 2241 habeas petition, Davis challenges the validity of his conviction on Count 2 of the indictment and his sentence, claiming that he is entitled to relief for the following reasons: (1) he is "actually innocent" of being a felon in possession of a firearm, as charged in Count 2; (2) he was denied due process in numerous respects; (3) he was discriminated against and denied equal protection in numerous respects; (4) he was denied his Sixth Amendment right to a trial by jury on all offenses, and his sentence was erroneously enhanced on the basis of untried charges; (5) he was denied his Fifth Amendment right to be indicted by a grand jury on all offenses alleged; (6) his conviction resulted from an illegal search and seizure, in violation of the Fourth Amendment; (7) his counsel was ineffective in numerous respects, in violation of the Sixth Amendment; (8) his conviction resulted from prosecutorial misconduct; and (9) the trial court erroneously enhanced his sentence for obstruction of justice and for transporting firearms.


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 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 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 ...

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