United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE
Milton Dowell is currently confined at the Federal Medical
Center in Lexington, Kentucky. Proceeding without a lawyer,
Dowell has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. [R. 1]. For the reasons
set forth below, the Court will deny Dowell's petition.
2002, a jury convicted Dowell of attempted possession with
the intent to distribute cocaine and possession with the
intent to distribute cocaine in violation of 21 U.S.C.
§§ 841 and 846. The United States District Court
for the Northern District of Illinois then sentenced Dowell
to 360 months in prison. See United States v.
Dowell, No. 1:99-cr-555 (N.D. Ill. 2002) at R. 83.
Dowell filed a direct appeal, but the United States Court of
Appeals for the Seventh Circuit affirmed Dowell's
sentence. See Id. at R. 101. Dowell then filed a
motion to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255, but the trial court denied that
motion and the Seventh Circuit denied Dowell a Certificate of
Appealability. See Dowell v. United States, No.
1:06-cv-519 (N.D. Ill. 2006) at R. 12 and R. 25. Dowell later
filed other motions for relief, but those motions were also
denied. See, e.g., Id. at R. 129. Finally, Dowell
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241 in which he argued that his sentence was
improperly enhanced, but this Court denied that petition.
See Dowell v. Quintana, No.5:17-cv-071-JMH (E.D. Ky.
February 24, 2017).
has now filed another § 2241 petition with this Court in
which he challenges the validity of his convictions and
sentence. Dowell is relying principally on the Supreme
Court's decision in McFadden v. United States,
135 S.Ct. 2298 (2015), and he suggests that, in light of
McFadden, the trial court incorrectly instructed the
jury regarding the mens rea element of at least one of the
charged offenses and also erred in calculating his sentence.
[R. 1 at 2-11].
§ 2241 petition, however, is an impermissible collateral
attack on his convictions and sentence. That is because while
a federal prisoner may challenge the legality of his
convictions 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,
Dowell cannot use his § 2241 petition as a way of
challenging his convictions and sentence.
nevertheless argues that he can attack his
convictions and sentence in his § 2241 petition by
citing and discussing § 2255(e)'s savings clause.
[R. 1 at 2]. But that argument is off base. The Sixth Circuit
has said that “the so-called ‘savings clause'
. . . 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). Then, in subsequent
cases, the Sixth Circuit has explained precisely 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).
claims that the jury instructions in his case were
“ambiguous and misleading, ” and he suggests that
the Supreme Court's 2015 decision in McFadden is
the intervening change in the law that establishes his actual
innocence and proves that his sentence was improper. [R. 1 at
2-7, 11]. But it is not entirely clear from Dowell's
petition which precise jury instruction was allegedly
improper. And, more importantly, it is not clear how
McFadden is relevant to Dowell's case, let alone
proves that he is innocent or was somehow sentenced
improperly. After all, McFadden “concern[ed]
the knowledge necessary for conviction under [21 U.S.C.]
§ 841(a)(1) when the controlled substance at issue is in
fact an analogue”-a substance that is not listed on the
federal drug schedules, like the bath salts at issue in that
case. McFadden, 135 S.Ct. at 2302. Dowell, on the
other hand, was convicted of attempted possession with the
intent to distribute cocaine and possession with the intent
to distribute cocaine, a substance which is specifically
listed on the federal drug schedules. See 21 C.F.R.
§ 1308.12(b)(4). Thus, Dowell's case is clearly
distinguishable from McFadden. Finally, it does not
appear that Dowell otherwise meets all of the requirements
set forth in either the Wooten or Hill
cases. Therefore, Dowell's reliance on §
2255(e)'s savings clause is unavailing.
it is hereby ORDERED as follows:
Dowell's petition for a writ of habeas corpus [R. 1] is
action is DISMISSED and STRICKEN from ...