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Hogan v. Butler

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

August 3, 2015

GARLAND WAMBLE HOGAN, Petitioner,
v.
WARDEN SANDRA BUTLER, Respondent.

MEMORANDUM OPINION & ORDER

GREGORY F. VAN TATENHOVE, District Judge.

Garland Wamble Hogan is a federal inmate confined in the Federal Correctional Institution-Manchester ("FCI-Manchester") located in Manchester, Kentucky. Proceeding pro se, Hogan has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the continuing validity of his conviction in 2002 on two charges of money laundering in the Southern District of Florida, claiming that by reason of United States v. Santos, 553 U.S. 507 (2008), he is "actually innocent" of these offenses. [R. 1]. Hogan requests the vacation of these two convictions and release from custody. [R. 1, Page ID# 8].

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 Hogan'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 Hogan'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 Hogan's claims, this Court cannot grant him the relief he seeks, i.e., the vacation of his convictions for money laundering and for conspiracy to commit money laundering and release from custody, because the basis underlying his petition is without legal foundation. The Court will therefore deny Hogan's § 2241 petition and dismiss this proceeding.

I

On August 30, 1999, Hogan and others were charged in a lengthy, multi-count indictment with numerous charges, including conspiracy to commit wire and mail fraud, mail fraud, conspiracy to commit money laundering, and money laundering. See United States v. Garland Hogan, et al., No. 9:99-cr-08125-DTKH (S.D. Fla. 1999), [R. 1 therein]. Hogan, an attorney, and other attorneys were charged in a massive fraud scheme concerning a viatical investment company, Viatical Asset Management. The indictment charged that from February 1996 continuing through August 1999, in Palm Beach County, Florida, and elsewhere, Hogan and others did knowingly, willfully and unlawfully devise and intend to devise a scheme and artifice to defraud and for obtaining money and property from investors throughout the United States by means of false and fraudulent pretenses, representations and promises, knowing that the pretenses, representations and promises would be and were false and fraudulent when made. Id., Indictment at 4, [R. 1 therein]. The viatical investment company paid Hogan legal fees for his services rendered to the company.

Hogan was convicted of one count of conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. § 371, nine counts of mail fraud, in violation of 18 U.S.C. § 1341, one count of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h), and one count of money laundering, in violation of 18 U.S.C. § 1957. Id. Hogan was sentenced on April 1, 2002, and received a total sentence of 324 months, to be followed by a 3-year term of supervised release. [ Id., at R. 2044 therein]. Hogan was also ordered to make restitution in the amount of $108, 947, 157.73. Id. Hogan unsuccessfully appealed his convictions and sentences. United States of America v. Arroya, No. 02-10368 (11th Cir. June 24, 2004).

Hogan then petitioned the United States Supreme Court for a writ of certiorari. The Supreme Court granted Hogan's petition, vacated and remanded his appeal in light of the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005). On remand to the Eleventh Circuit, the Eleventh Circuit affirmed Hogan's convictions, but vacated and remanded for resentencing in accordance with Booker. United States of America v. Arroya, No. 02-10368 (11th Cir. January 5, 2007). Hogan was resentenced on May 10, 2007, and received a total sentence of 276 months. See United States v. Garland Hogan, et al., No. 9:99-cr-08125-DTKH (S.D. Fla. 1999)[R. 2486 therein]. Hogan unsuccessfully appealed this sentence. See United States of America v. Garland Hogan, No. 07-12454 (11th Cir. May 16, 2008).[1] The Supreme Court denied Hogan's petition for a writ of certiorari.

Hogan then moved the trial court to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. See United States v. Garland Hogan, et al., No. 9:99-cr-08125-DTKH (S.D. Fla. 1999), [R. 2642; R. 2646 therein]. One of the grounds raised in Hogan's § 2255 motion was that his conviction on the money laundering conspiracy charge should be set aside in light of United States v. Santos, supra , decided post-conviction and post-direct appeal. [ Id., at R. 2646, p. 10]. On March 29, 2012, the trial court denied Hogan's § 2255 motion and granted a certificate of appealability on one claim of ineffective assistance of counsel. See Garland Hogan v. United States, No. 9:09-cv-81530 (No. 9:99-cr-08125-DTKH) (S.D. Fla. March 29, 2009) [R. 87 therein]. Hogan unsuccessfully appealed the claim that his counsel was ineffective to the Eleventh Circuit. Garland Hogan v. United States, No. 12-12979 (11th Cir. Dec. 19, 2013), and the Supreme Court denied Hogan's petition for a writ of certiorari. See Garland Hogan v. United States, No. 9:09-cv-81530 (No. 9:99-cr-08125-DTKH) (S.D. Fla. March 29, 2009) [R. 101 therein].

II

In the present § 2241 habeas petition, Hogan challenges the validity of his convictions on Counts 50 and 15 of the Third Superseding Indictment and his sentence, claiming that he is entitled to relief via this habeas petition because under Santos, supra , a case decided subsequent to his conviction that is applicable retroactively to cases like his on collateral review, and that under post- Santos Sixth Circuit precedent, he is "actually innocent" of the money laundering transaction and money laundering conspiracy charges on which he was convicted in the Southern District of Florida.

A

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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