United States District Court, E.D. Kentucky, Central Division, Lexington
EDWARD P. MAY, Petitioner,
FRANCISCO QUINTANA, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge
Edward May is currently confined at the Federal Medical
Center in Lexington, Kentucky. Proceeding without an
attorney, May has filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. [Record No. 1] For
the reasons set forth below, May's petition will be
2009, a federal grand jury indicted May, charging him with 59
counts of mail fraud in violation of 18 U.S.C. § 1341
for his operation of a longstanding and widespread Ponzi
scheme to defraud hundreds of investors between 1997 and
2007. May eventually pled guilty to all of the charges, and
the trial court sentenced him to 192 months in prison and
ordered him to pay more than $49, 000, 000 in restitution.
See United States v. May, No. 2:09-cr-20482 (E.D.
filed a direct appeal, but that appeal was later withdrawn.
May then filed several motions for relief, including a motion
to vacate pursuant to 28 U.S.C. § 2255. However, the
United States District Court for the Eastern District of
Michigan denied those motions and the Sixth Circuit denied
May a Certificate of Appealability. See Id. May also
filed multiple § 2241 petitions, but those petitions
were also denied. See May v. Kirby, No.
3:14-cv-056-KRG-KAP (W.D. Pa. 2014); May v.
Quintana, No. 5:15-182-DCR (E.D. Ky. 2015).
now filed another § 2241 petition. [Record No. 1] In
this latest filing, May challenges the validity of his
convictions and sentence. Among other things, he claims that
his trial attorney provided ineffective assistance of counsel
because that attorney allegedly “had in his possession
medical documentation that [May] was mentally and medically
unstable” and “failed to provide [the] court with
[that] medical testimony.” [Record No. 1 at 6-7] May
also claims that his attorney failed to advise him of the
rights he was waiving and failed to present all mitigating
evidence at his sentencing. [Record No. 1 at 8; No. 1-1 at
18] May further claims that his guilty plea was not knowing
and voluntary. [Record No. 1-1 at 19] Finally, May alleges
that the trial “court and U.S. attorney knew of [his]
documented mental and medical instability, ” and he
argues that the “failure of the court to conduct or
order [a] competency hearing . . . deprived him of his right
to due process.” [Record No. 1 at 7; No. 1-1 at 12]
These are just some of the claims that May makes challenging
the validity of his convictions and sentence. [Record No. 1-1
§ 2241 petition is an impermissible collateral attack on
his convictions and sentence. That is because while a federal
prisoner may challenge the legality of his conviction or
sentence in a § 2255 motion, he generally may not do so
in a § 2241 petition. See United States v.
Peterman, 249 F.3d 458, 461 (6th Cir. 2001) (explaining
the distinction between a § 2255 motion and a §
2241 petition). After all, a § 2241 petition does not
function as an additional or alternative remedy to the one
available under § 2255. Hernandez v. Lamanna,
16 F. App'x 317, 360 (6th Cir. 2001). Instead, a §
2241 petition is usually only a vehicle for challenges to
actions taken by prison officials that affect the manner in
which the prisoner's sentence is being carried out, such
as computing sentence credits or determining parole
eligibility. See Terrell v. United States, 564 F.3d
442, 447 (6th Cir. 2009). Simply put, May cannot use a §
2241 petition as a way of challenging his convictions and
suggests that he can attack his convictions and sentence
through his § 2241 petition by citing and discussing
§ 2255(e)'s savings clause. [Record No. 1-1 at 3-4].
But that suggestion is off base. To be sure, the Sixth
Circuit has said that “the so-called ‘savings
clause' of section 2255 provides that if section 2255 is
‘inadequate or ineffective to test the legality of his
detention, . . . then a federal prisoner may also challenge
the validity of his conviction or sentence under §
2241.” Bess v. Walton, 468 F. App'x 588,
589 (6th Cir. 2012) (citations and quotation marks omitted).
However, the Sixth Circuit has further explained that
“[i]nvocation of the savings clause is restricted to
cases where prisoners can show ‘an intervening change
in the law that establishes their actual
innocence.'” Id. (quoting
Peterman, 249 F.3d at 462). In subsequent cases, the
Sixth Circuit has explained how a prisoner can rely on an
intervening change in the law to establish his actual
innocence, see Wooten v. Cauley, 677 F.3d 303,
307-08 (6th Cir. 2012), or even challenge a sentence
enhancement. See Hill v. Masters, 836 F.3d 591,
599-600 (6th Cir. 2016).
May tries to rely on § 2255(e)'s savings clause, it
does not appear from his petition that he is relying on an
intervening change in the law to attack his convictions or
sentence or that he otherwise meets the requirements set
forth in either the Wooten or Hill cases.
Rather, it appears that May is simply trying to re-litigate
claims that he either made or could have made in his
previously denied § 2255 motion. Since that is not
proper in a § 2241 petition, the Court will deny that
in light of the foregoing analysis, the Court will also deny
May's latest motion, which asked the Court to reconsider
its decision refusing to release him on bond. [Record No. 13]
Accordingly, it is hereby
May's petition for a writ of habeas corpus [Record No. 1]
May's motion asking the Court to reconsider its decision
refusing to release him on bond [Record No. 13] is DENIED.
action is DISMISSED and STRICKEN from ...