United States District Court, E.D. Kentucky, Northern Division, Ashland
LUIS E. PEREZ-ORTIZ, Petitioner,
JODIE L. SNYDER-NORRIS, Warden, Respondent.
MEMORANDUM OPINION & ORDER
R. Wilholt Jr., United States District Judge
Luis E. Perez-Ortiz is an inmate confined at the Federal
Correctional Institution Ashland ("FCI-Ashland") in
Ashland, Kentucky. Proceeding without counsel, Perez-Ortiz
has filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241. [D.E. No. 1] This matter is before the
Court to conduct an initial screening of Perez-Ortiz's
petition. 28 U.S.C. § 2243. Because Perez-Ortiz's
claims cannot be asserted in a petition under 28 U.S.C.
§ 2241, the Court will deny the petition.
December 21, 2010, in the United States District Court for
the District of Puerto Rico, Perez-Ortiz was convicted by a
jury of two criminal counts: (1) attempt to possess with
intent to distribute five kilograms or more of cocaine, in
violation of 21 U.S.C. §§ 841 and 846; and (2)
possession of a firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c)(1)(a). On June
16, 2011, Perez-Ortiz was sentenced to imprisonment for a
term of 78 months as to Count One (the drug count), and 60
months as to Count Two (the firearms count), for a total term
of imprisonment for 138 months. Perez-Ortiz filed a notice of
appeal, but this appeal was withdrawn five days after filing.
United States v. Perez-Ortiz, No. 3:10-cr-331-JAF-1
(D. P.R. 2010).
then filed a motion to vacate, set aside or correct sentence
pursuant to 28 U.S.C. § 2255, in which he argued that he
was illegally entrapped by government agents; he was
wrongfully convicted because the transaction involved two
undercover agents and sham cocaine; he was not provided with
sufficient evidence in discovery; the district court erred in
denying his motion for a continuance; and that his counsel
was ineffective for various reasons, including for wrongfully
advising him to withdraw his appeal. The District Court
denied Perez-Ortiz's § 2255 motion. Perez-Ortiz
v. United States, No. 3:1 l-cv-2205-JAF (D. P.R. 2011).
then filed a motion to reduce his sentence pursuant to 18
U.S.C. § 3582(c)(2) and Amendment 782 of the United
States Sentencing Guidelines. This motion was granted with
respect to his sentence on Count One of the indictment. The
District Court reduced Perez-Ortiz sentence to a term of
imprisonment of 63 months as to Count One (reduced from a
term of 78 months), to be served consecutively to the
60-month sentence imposed as to Count Two, for a total term
of imprisonment of 123 months. United States v.
Perez-Ortiz, No. 3:10-cr-331-JAF-1(D.P.R.2010).
now seeks relief from in this Court via a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2241.
Perez-Ortiz identifies four grounds upon which his §
2241 petition is based: (1) that he was convicted despite his
actual innocence as a result of ineffective counsel, (2) that
he was brought to trial 76 days after his initial appearance
before a judicial officer, in violation of the Speedy Trial
Act and his right to have time to prepare for trial, and (3)
his conviction was obtained through entrapment in violation
of his constitutional rights. [D.E. No. 1] However,
Perez-Ortiz's § 2241 petition is an impermissible
attack on his underlying conviction and, accordingly, he is
not entitled to relief.
Court conducts an initial review of habeas corpus petitions.
28 U.S.C. § 2243; Alexander v. Northern Bureau of
Prisons, 419 Fed.Appx. 544, 545 (6th Cir. 2011). A
petition will be denied "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 Perez-Ortiz's petition under a more
lenient standard because he is not represented by an
attorney. Erickson v. Pardus, 551 U.S. 89, 94
(2007). At this stage of the proceedings, the Court accepts
the petitioner's factual allegations as true and
construes all legal claims in his favor. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
petition filed under 28 U.S.C. § 2241 is reserved 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. Terrell v. United
States, 564 F.3d442, 447 (6th Cir. 2009). To challenge
the legality of a federal conviction or sentence, a prisoner
must file a motion for postconviction relief under 28 U.S.C.
§ 2255 in the court that convicted and sentenced him.
Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir.
2003). The prisoner may not use a habeas corpus petition
pursuant to 28 U.S.C. § 2241 for this purpose, as it
does not constitute an additional or alternative remedy to
the one available under § 2255. Hernandez v.
Lamanna, 16 Fed.Appx. 317, 320 (6th Cir. 2001).
highly exceptional circumstances, the "savings
clause" found in 28 U.S.C. § 2255(e) will permit a
prisoner to challenge the validity of his conviction in a
habeas corpus proceeding under § 2241, but only where
the remedy afforded by § 2255(a) "is inadequate or
ineffective" to test the legality of his detention.
Charles v. Chandler, 180 F.3d 753, 755 (6th Cir.
1999); Bess v. Walton, 468 Fed.Appx. 588, 589 (6th
Cir. 2012). Establishing that the § 2255 remedy is
inadequate or ineffective is a high burden for a petitioner
to meet, as "[t]he circumstances in which § 2255 is
inadequate and ineffective are narrow." See United
States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001).
This standard is not satisfied merely because the
prisoner's time to file a § 2255 motion has passed;
he did not file a § 2255 motion; or he did file such a
motion and was denied relief. Copeland v. Hemingway,
36 Fed.Appx. 793, 795 (6th Cir. 2002); Taylor v.
Gilkey, 314 F.3d 832, 835 (7th Cir. 2002) (§ 2241
available "only when a structural problem in § 2255
forecloses even one round of effective collateral review
..."). Nor does this exception apply where a prisoner
fails to seize an earlier opportunity to correct a
fundamental defect in his or her convictions under
pre-existing law. Nechovski v. Snyder-Norris, No.
0:16-CV-3-HRW, 2016 WL 3552196, at *5 (E.D. Ky. June 23,
2016), affd, No. 16-6082 (6th Cir. July 6, 2016)
(citing Charles, 180 F.3d at 756).
to properly invoke the savings clause, the petitioner must be
asserting a claim that he is "actual innocent" of
the underlying offense by showing that, after the
petitioner's conviction became final, the Supreme Court
re-interpreted 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.
Cauley, 611 F.3d 303, 307-08 (6th Cir. 2012) (citing
Peterman, 249 F.3d at 461-62); Hayes v.
Holland, 473 Fed.Appx. 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."). The Supreme
Court's newly-announced interpretation must, of course,
be retroactively applicable to cases on collateral review.
Wooten, 677 F.3d at 308. The general rule is that
new decisions are not retroactive "unless the new
decision provides a criminal rule of procedure that is of
'watershed' importance or is a substantive change in
the law that imposes a new burden on the states or federal
government." Id. (citing Teague v.
Lane, 489 U.S. 288 (1989)).
Perez-Ortiz's claims fit within the narrow scope of
§ 2255(e). There is no doubt that Perez-Ortiz's
claim that his trial counsel was constitutionally ineffective
under Strickland is one of ordinary trial error
which could have and must have been pursued on direct appeal
or in an initial motion under § 2255. Cf. Mallard v.
United States, 82 Fed.Appx. 151, 153 (6th Cir.2003);
Fuller v. United States, No. 14-CV-714-DRH, 2014 WL
3543703, at *3-4 (S.D. 111. July 16, 2014); Ellis, Jr. v.
Warden, FCC-Coleman Medium, No. 5:1 l-CV-318-OC-29PRL,
2014 WL 3767605, at *4-5 (M.D. Fla. July 31, 2014). Likewise,
Perez-Ortiz's claim that his conviction was obtained
through entrapment in violation of his constitutional rights
is an ordinary trial error that he could have asserted before
the trial court, either upon direct appeal or in a motion
pursuant to 28 U.S.C. § 2255.
his claim that his that he was brought to trial in violation
of the Speedy Trial Act also may not be asserted under §
2241. Although Perez-Ortiz's Speedy Trial Act claim
references a statute, he does not rely upon any Supreme Court
decision post-dating his conviction, direct appeal, and
initial collateral attack proceedings, much less one that has
been deemed to be retroactively applicable to cases on
collateral review. Thus, ...