United States District Court, E.D. Kentucky, Northern Division, Ashland
MEMORANDUM OPINION AND ORDER
R. Wilhoit Jr. United States District Judge
Steven Martin Delaney is confined at the Federal Correctional
Institution in Ashland, Kentucky. Proceeding without an
attorney, Delaney has filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 [D. E. No, 1] and a
financial statement from his inmate account [D. E. No. 2]
has not paid the $5.00 filing fee required by 28 U.S.C.
§ 1914 or filed a motion to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915, In addition,
Delaney's account statement [D. E. No. 2] indicates that
he possesses more than sufficient assets and income to pay
the modest five dollar filing fee. Because the filing fee is
incurred when the petition is filed, the Court will direct
the Bureau of Prisons ("BOP") to deduct the five
dollars from funds in Delaney's inmate account in
satisfaction of that financial obligation, In February 2013,
Delaney signed a written agreement to plead guilty to a
single count of distributing child pornography in violation
of 18 U.S.C. § 2252(a)(2). Consistent with the terms of
the agreement, in October 2013 the United States District
Court for the Southern District of Indiana sentenced Delaney
to 188 months imprisonment. United States v.
Delaney, No. 1: 13-CR-19-LJM-MJD (S.D. Ind. 2013) [D. E.
No. 31, 55 therein].
his express waiver in the plea agreement of his right to
appeal or collaterally attack his conviction or sentence, in
May 2016 Delaney filed a motion to vacate his conviction
pursuant to 28 U.S.C. § 2255 in the trial court. That
motion remains pending, and the government's response is
due by May 9, 2017. Delaney v. United States, No. 1:
16-CV-1206-LJM-TAB (S.D. Ind. 2016).
present petition Delaney argues that (1) he was never advised
of his rights as required by Miranda v, Arizona, 384
U.S. 476 (1966); (2) he was never indicted nor did he sign a
waiver of his right to be indicted by a grand jury; and (3)
his right to a speedy trial was violated. [D. E, No. 1 at
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 pursuant to 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 the petitioner's
factual allegations as true, and his legal claims are
liberally construed in his favor. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007).
petition must be denied on several procedural grounds.
correct mechanism for a federal prisoner to challenge his or
her conviction or sentence is through a motion to vacate
filed pursuant to 28 U.S.C. § 2255(a). Terrell v.
United States, 564 F.3d 442, 447 (6th Cir. 2009). A
habeas corpus petition under 28 U.S.C. § 2241 may only
be used to challenge a federal conviction where the remedy
provided by § 2255(a) is structurally inadequate or
unavailable to obtain relief. Martin v. Perez, 319
F.3d 799, 804 (6th Cir. 2003). Here, Delaney is currently
challenging his conviction by motion under Section 2255, and
that remedy therefore cannot be deemed structurally
inadequate. His habeas petition is therefore premature.
Besser v. Sepanek, 478 F.App'x 1001 (6th Cir.
2012); Smith v. United States, 89 F.3d 835 (6th Cir.
1996); Hunter v. Holland, No. 6: 15-CV-117-KKC, 2015
WL 4397154, at *1 (E.D. Ky. July 16, 2015) ("Hunter
cannot contemporaneously seek relief from his conviction and
sentence by way of a § 2241 petition in this Court while
his § 2255 motion is pending ...").
this were not so, Delaney is barred from collaterally
attacking his conviction or sentence because he waived the
right to do so in his plea agreement. Such waivers are
enforceable in habeas proceedings under § 2241, and
preclude the assertion of the arguments Delaney pursues here.
Solis-Caceres v, Sepanek, No. 13-21-HRW,
2013 WL 4017119, at *3 (E.D. Ky. Aug. 6, 2013) (collecting
cases); Mabry v. Shartel, No. 122637, 2015 WL
7273817, at *1 (3d Cir. Nov. 18, 2015); Combs v.
Rickey, No. 11-12-JMH, 2011 WL 65598 (E.D. Ky. Jan. 7,
2011); Peete v. United States, No. ll-cv-2242, 2013
WL 3199834, at *l-2 (CD. 111. June 24, 2013); Gonzalez v.
Warden o/MCCNew York, No. 12-Civ. 6910, 2013 WL 144956
(S.D.N.Y. Jan. 14, 2013).
the remedy available under § 2255 considered
"inadequate or ineffective" where, as here, the
petitioner waived his right to seek relief under that
provision as part of a plea agreement. Muse v.
Daniels, 2016 WL 1163836, at *1 (7th Cir. Feb. 24, 2016)
(holding that a collateral attack waiver "would apply
equally in a proceeding under § 2241, had not §
2255(e) taken precedence, for § 2241 is a form of
collateral attack."); Midler v. Savers, 523
F.App'x 110, 112 (3d Cir. 2013) ("Muller's plea
agreement included a waiver of collateral-attack
rightssin any postconviction proceeding,
including-but not limited to-any proceeding under 28 U.S.C.
§ 2255.' Therefore, his plea agreement forecloses
relief pursuant to § 2241 ..."); Johnson v.
Warden, 551 F.App'x 489, 491 (11th Cir. 2013);
Rivera v. Warden, FCI, Elkton, 27
F.App'x 511, 515 (6th Cir. 2001); United States v.
Chavez-Salais, 337 F.3d 1170, 1172 (10th Cir. 2003)
("The conventional understanding of 'collateral
attack' comprises challenges brought under, for example,
28 U.S.C. § 2241, 28 U.S.C. § 2254, 28 U.S.C.
§ 2255, as well as writs of coram nobis.")
Delaney argues that his constitutional rights were violated
in several respects, but these are not claims of "actual
innocence" which may be pursued in a Section 2241
petition. A petitioner can only demonstrate actual innocence
of an offense by showing that after the his conviction became
final, the Supreme Court reinterpreted the substantive terms
of the criminal statute under which he was convicted in a
manner that establishes that his conduct did not violate the
statute. Wooten v. Cairiey, 677 F.3d 303, 307-08
(6th Cir. 2012); Hayes v. Holland, 473 F.App'x
501, 501-02 (6th Cir. 2012) ("To date, the savings
clause has only been applied to claims of actual innocence
based upon Supreme Court decisions announcing new rules of
statutory construction unavailable for attack under section
2255."). Delaney's constitutional claims do not fall
within the narrow scope of the savings clause, and they must
be asserted - if at all ~ by motion under Section
IT IS ORDERED that:
Clerk of the Court shall send a copy of this Order to the
warden of the institution in which Delaney is currently
Delaney's custodian shall send the Clerk of the Court
payment of the $5.00 filing fee from funds in Delaney's
inmate trust fund account ...