United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE
Trevino Mungia is currently confined at the United States
Penitentiary - Big Sandy in Inez, Kentucky. Proceeding
without an attorney, Mungia 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
1995, a federal grand jury indicted Mungia, charging him with
numerous crimes, including but not limited to conspiracy to
interfere with federally protected activities in violation of
18 U.S.C. § 371, interference with federally protected
activities in violation of 18 U.S.C. § 245, and use of a
firearm during and in relation to a crime of violence in
violation of 18 U.S.C. § 924(c). According to the
indictment underlying these charges, Mungia and his friends
tried to intimidate African-Americans by driving through the
streets of Lubbock, Texas, and shooting at them with a
shotgun. Ultimately, Mungia went to trial, and a jury found
him guilty of all charges. The district court sentenced
Mungia to life in prison. See United States v.
Mungia, No. 5:95-cr-017 (N.D. Tex. 1996).
filed a direct appeal, but the United States Court of Appeals
for the Fifth Circuit affirmed his convictions. Mungia then
filed a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255, but the district court
denied that motion, and the Fifth Circuit affirmed. See
Id. Mungia later filed several other motions for relief,
but those motions were denied. See id.; see also Mungia
v. United States, No. 5:09-cv-097 (N.D. Tex. 2009).
2015, Mungia filed a § 2241 petition with this Court and
argued, among other things, that the government failed to
prove the elements necessary to convict him under 18 U.S.C.
§ 924(c). Specifically, Mungia claimed that, in light of
the Supreme Court's decision in Bailey v. United
States, 516 U.S. 137 (1995), the government was required
to show that he “actively employed” a firearm in
relation to a crime of violence, and it failed to do so. This
Court, however, denied Mungia relief because it determined
that he could not use § 2241 to challenge his
convictions or sentence. See Mungia v. Sepanek, No.
7:15-cv-137-ART (E.D. Ky. March 8, 2016).
has now filed another § 2241 petition with this Court,
and he repeats his argument regarding the 1995
Bailey decision. [R. 1]. Indeed, Mungia claims that
“he is actually innocent in light of Bailey .
. . because the Supreme Court made clear that ‘use'
in § 924(c)(1) meant ‘an active employment of the
firearm by the defendant.'” [R. 1 at 10]. Mungia
later echoes this point, arguing that his “convictions
cannot be sustained under 18 U.S.C. § 924(c) because the
government failed to show that [he] actively employed the
weapon . . . beyond a reasonable doubt.” [R. 1 at 19].
§ 2241 petition is once again 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,
Mungia cannot use a § 2241 petition as a way of
challenging his convictions and sentence.
Mungia argues that he can attack his convictions and
sentence through his § 2241 petition by citing and
discussing § 2255(e)'s savings clause. [Record No. 1
at 10]. But that argument 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 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).
Mungia invokes § 2255(e)'s savings clause, he is not
actually relying on an intervening change in the law to
attack his convictions or sentence, and he does not otherwise
meet the requirements set forth in either the Wooten
case or the Hill case. As this Court pointed out in
its last decision, Mungia “either did raise or could
have raised-in his § 2255 motions-all of the arguments
that he raises now. And the facts giving rise to those
arguments-. . . [including the argument] that the government
failed to make the required showing under
Bailey-were either known to Mungia at the time of
his § 2255 motion or else they should have been known to
him. Thus, Mungia is not entitled to make those arguments in
his motion for relief under § 2241.” Mungia v.
Sepanek, No. 7:15-cv-137-ART (E.D. Ky. March 8, 2016) at
R. 11 at 5. In other words, Mungia is simply trying to
re-litigate claims that he either made or could have made in
his previously denied § 2255 motion. That is simply not
proper in a § 2241 petition.
it is hereby ORDERED as follows:
Mungia's petition for a writ of habeas corpus [R. 1] is
action is DISMISSED and STRICKEN from ...