United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
L. Bunning United States District Judge
inmate Fred Miles Thompson has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. # 1).
This matter is before the Court to conduct an initial
screening of Thompson's petition. 28 U.S.C. § 2243;
Alexander v. Northern Bureau of Prisons, 419 F.
App'x 544, 545 (6th Cir. 2011).
March 2012 a grand jury in Fargo, North Dakota issued an
indictment charging Thompson with conspiracy to possess with
intent to distribute more than 500 grams of methamphetamine
in violation of 21 U.S.C. § 846 and to using a firearm
during the commission of a drug trafficking crime in
violation of 18 U.S.C. § 924(c)(1)(A). The government
later filed a notice pursuant to 21 U.S.C. § 851 that
Thompson was subject to an enhanced mandatory minimum
sentence in light of his six prior convictions for drug
trafficking crimes or crimes of violence.
subsequently reached an agreement with the government to
plead guilty to both charges. As part of that agreement,
Thompson acknowledged that he faced a combined statutory
minimum of twelve years imprisonment and a combined maximum
of life plus 40 years imprisonment. Thompson further
expressly waived his right to file a direct appeal or to
collaterally attack his conviction or sentence upon any
ground, save upon ineffective assistance of counsel.
sentencing hearing, defense counsel conceded that Thompson
qualified as a career offender under § 4B1.1(a) of the
Sentencing Guidelines, but argued that the resulting sentence
would be excessive. Nonetheless, in January 2013 the trial
court sentenced Thompson to 480 months imprisonment on the
conspiracy count and to a consecutive term of life
imprisonment on the § 924(c) conviction. United
States v. Thompson, No. 3:12-CR-29-DLH-1 (D.N.D. 2012).
The Eighth Circuit affirmed on direct appeal, rejecting
Thompson's assertion that his assent to the appeal waiver
was not knowing and voluntary. United States v.
Thompson, 770 F.3d 689 (8th Cir. 2014).
2015, Thompson filed a motion to vacate pursuant to 28 U.S.C.
§ 2255 in which he asserted that the trial judge had
improperly participated in plea negotiations and that his
counsel was constitutionally ineffective by failing to object
to that participation, the former argument having been
considered and rejected by the Eighth Circuit on direct
appeal. The trial court rejected the first argument as
procedurally improper and the second argument as without
merit. The Eighth Circuit affirmed in September 2017.
Thompson v. United States, 872 F.3d 560 (8th Cir.
present petition under § 2241, Thompson repeats his
assertion that his trial counsel provided constitutionally
ineffective assistance. (Doc. # 1 at 5-6). Indeed, the
memorandum he filed to support his petition (Doc. # 1-1 at
2-11) is merely a copy of the petition for rehearing his
counsel filed with the Eighth Circuit on October 2, 2017.
Court must deny Thompson's petition because his
ineffective assistance claim under Strickland v.
Washington, 466 U.S. 668 (1984), is not cognizable in a
habeas corpus petition under § 2241. A federal prisoner
challenging the legality of his federal conviction or
sentence must generally do so by filing a motion for
post-conviction 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). A habeas
corpus petition pursuant to 28 U.S.C. § 2241 may not be
used for this purpose because it does not function as an
additional or alternative remedy to the one available under
§ 2255. Hernandez v. Lamanna, 16 F. App'x
317, 320 (6th Cir. 2001).
claim that his right to effective assistance of counsel,
guaranteed by the Sixth Amendment, is a constitutional claim
of ordinary trial error which can, and therefore must, be
pursued on direct appeal or in an initial motion under §
2255. Mallard v. United States, 82 F. App'x 151,
153 (6th Cir. 2003) (claim under Strickland that
counsel was ineffective may not be pursued under §
2241); Jameson v. Samuels, 555 F. App'x 743, 746
(10th Cir. 2014) (habeas petition under § 2241 is not
the proper vehicle to assert claims of prosecutorial
misconduct, ineffective assistance of counsel, and lack of
probable cause for warrant). Because Thompson's remedy
under § 2255 is not “inadequate and
ineffective” to assert this claim, resort to §
2241 is impermissible.
it is ORDERED as follows:
Fred Miles Thompson's petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 (Doc. # 1) is
This action is DISMISSED and
STRICKEN from ...