United States District Court, E.D. Kentucky, Northern Division
DUANE A. DUVALL, Petitioner,
THOMAS SMITH, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
R. Wilhoit Jr. United States District Judge
Duvall is a prisoner confined at the Federal Correctional
Institution in Ashland, Kentucky. Proceeding without a
lawyer, Duvall has filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. [D. E. No. 1]. For
the reasons set forth below, the Court will deny Duvall's
2000, a jury convicted Duvall of possession with the intent
to distribute more than 50 grams of a mixture containing
methamphetamine, and possession with the intent to distribute
more than 50 grams of a mixture containing
amphetamine.The trial court then sentenced Duvall to a
total term of 360 months in prison. Duvall's convictions
were upheld on direct appeal, and his subsequent motion to
vacate his sentence pursuant to 28 U.S.C. § 2255 was
has now filed a § 2241 petition, and he appears to make
three claims: (1) his sentence is "illegal" in
light of the Supreme Court's decision in United
States v. Booker, 543 U.S. 220 (2006), which held that
the federal sentencing guidelines are advisory; (2) his trial
attorney operated under a conflict of interest; and (3) his
trial attorney provided ineffective assistance of counsel by
effectively abandoning him and failing to file certain
documents while his case was on appeal. [D. E. No. 1 at 6-8].
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 Duvall'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).
claims raised in his § 2241 petition are simply not the
kind which may be pursued under § 2241. A § 2241
petition may typically only be used as 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. Terrell v. United
States, 564 F.3d 442, 447 (6th Cir. 2009). A federal
prisoner who instead wishes to challenge the legality of his
conviction or sentence must file a motion under § 2255.
United States v. Peterman, 249 F.3d 458, 461 (6th
Cir. 2OOl)(explaining the distinction between permissible
uses for a § 2255 motion and a § 2241 petition).
The prisoner may not resort to § 2241 to seek relief
even when § 2255 is not presently "available"
to him, whether because he filed a timely motion and was
denied relief; he did not file a timely § 2255 motion;
or he filed an untimely motion. Copeland v.
Hemingway, 36 Fed.Appx. 793, 795 (6th Cir. 2002). In
other words, prisoners cannot use a habeas petition under
§ 2241 as yet another "bite at the apple."
Hernandez v. Lamanna, 16 Fed.Appx. 317, 360 (6th
"savings clause" of 28 U.S.C. § 2255(e)
creates an extraordinarily narrow exception to this
prohibition. 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 Fed.Appx. 588, 589 (6th Cir. 2012) (citations and
quotation marks omitted).
Duvall does not (and could not) rely on the "savings
clause" of § 2255(e) to authorize his § 2241
petition. 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, 677 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
respect to Duvall's argument that he is entitled to
relief pursuant to the Supreme Court's decision in
Booker, he concedes that he previously raised this
argument in a § 2255 petition, which was denied as
untimely. However, he re-raises his arguments in this
petition because he "remains convinced" that his
Sixth Amendment rights were violated. [D.E. No. 1 at p. 7].
However, the fact that a prior § 2255 was denied does
not render a § 2255 petition "unavailable" for
purposes of the savings clause of § 2255.
Copeland, 36 Fed.Appx. at 795 (6th Cir. 2002).
Moreover, Booker does not apply retroactively to
cases on collateral review. Humphress v. United
States, 398 F.3d 855, 863 (6th Cir. 2005);
United States v. Saikaly, 424 F.3d 514, 517
(6th Cir.2005) (Booker established a new
rule of criminal procedure and thus did not apply
retroactively to cases already final on direct review,
namely, those cases in which a decision had been rendered on
direct appeal and the 90-day period for seeking a writ of
certiorari had expired, at the time Booker was
addition, to the extent that Duvall attempts to raise
arguments regarding ineffective assistance of counsel, these
claims consist of challenges to his conviction that he could
and must have asserted before the trial court, either upon
direct appeal or in a motion pursuant to 28 U.S.C. §
2255. For these reasons, his claims may not be pursued under
28 U.S.C. § 2241.
it is ORDERED that:
1. Duvall's petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241 [D. E. No. 1] is
2. This action is DISMISSED and
STRICKEN from the ...