United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE.
Roshaun Reid is a prisoner confined at the United States
Penitentiary (“USP”)-Big Sandy in Inez, Kentucky.
Proceeding without an attorney, Reid has filed a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R.
1] and a motion to waive payment of the $5.00 filing fee. [R.
3] The Court has reviewed the financial information provided
by Reid in support of his fee motion, and concludes that he
lacks sufficient income to pay the filing fee.
2006, Reid was convicted by a jury in the United States
District Court for the District of South Carolina for
conspiracy to distribute cocaine base in violation of 21
U.S.C. § 846 (Count 1), murder through the use of a
firearm in the course of a drug trafficking crime (Count 4),
and two counts of unlawful possession of a firearm (Counts 12
and 14). United States v. Reid, No. 0:04-cr-353
(D.S.C. 2004). He was sentenced to a term of imprisonment of
life on the murder charge, a term of 240 months of
imprisonment for the drug conspiracy charge, and two terms of
120 months imprisonment on both of the firearm charges, all
to run concurrently. Id. His conviction and sentence
were both confirmed on appeal by the United States Court of
Appeals for the Fourth Circuit. United States v.
Reid, 523 F.3d 310 (4th Cir. 2008), cert.
denied, 555 U.S. 1061 (2008).
has filed multiple post-conviction requests for relief in
various courts in the forms of petitions for a writ of habeas
corpus pursuant to both 28 U.S.C. § 2255 and 28 U.S.C.
§ 2241. See Reid v. Ebbert, No. 1:17-cv-1062
(M.D. Pa. 2017) at R. 8, p. 2-4 (compiling a list of the
multiple § 2255 and § 2241 petitions filed by
Reid). Given the lengthy procedural history of Reid's
underlying criminal case, his various requests for relief
from his conviction and sentence will only be discussed to
the extent that they are relevant to the claims made in his
§ 2241 petition filed in this Court.
Reid's current § 2241 petition is somewhat
disjointed and repetitive, the gist of his argument is that
he is entitled to relief because he is “actually
innocent” of Count 1 of the Indictment, conspiring to
distribute cocaine base in violation of 21 U.S.C. § 846,
because there was no finding by the jury as to the amount of
drugs attributable and reasonable foreseeable to Reid. He
invokes Apprendi v. New Jersey, 530 U.S. 466 (2000)
and argues that, because there was no threshold drug finding
by the jury, he is “actually innocent” of Count
1. In addition, according to Reid, in order for the statutory
mandatory minimums of 21 U.S.C. § 841(b) to apply at
sentencing in a drug conspiracy case, the jury must determine
that the threshold drug amount was reasonable foreseeable to
the individual defendant. Thus, as there was no drug quantity
finding by the jury under 21 U.S.C. § 841(b), there was
no way for the Court to set a penalty range with respect to
Count 1. [R. 1 at p. 5; R. 1-1 at p. 10]
argues that, because he was acquitted of Count 3, which
charged Reid with aiding and abetting the intentional killing
of Ernest Hollis while engaged in the conspiracy charged in
Count 1, this acquittal necessarily establishes that there
was insufficient evidence to convict on the drug conspiracy
charged in Count 1, as well as the murder charge of Count 4.
As relief, he seeks immediate release from custody. [R. 1-1
at p. 1, 8, 18]
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 Reid'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. 2001) (explaining the distinction between a § 2255
motion and a § 2241 petition). A § 2241 petition
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
Fed.Appx. 317, 320 (6th Cir. 2001).
“savings clause” of 28 U.S.C. § 2255(e)
creates an extraordinarily narrow exception to this
prohibition if the remedy afforded by § 2255 is
“inadequate or ineffective” to test the legality
of the prisoner's detention. Truss v. Davis, 115
Fed.Appx. 772, 773-74 (6th Cir. 2004). 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 Peterman, 249
F.3d at 461. A motion under § 2255 is not
“inadequate or ineffective” simply 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) (holding that
§ 2241 is available “only when a structural
problem in § 2255 forecloses even one round of effective
collateral review ...”). In other words, prisoners
cannot use a habeas petition under § 2241 as yet another
“bite at the apple.” Hernandez, 16
Fed.Appx. at 360.
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 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)).
“actual innocence” claims presented in his §
2241 petition do not rely on any such Supreme Court decision
announcing a new, retroactively applicable rule of statutory
construction. Rather, Reid's claims are claims 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); Jameson v. Samuels, 555
Fed.Appx. 743, 746 (10th Cir. 2014). In fact, Reid has
previously raised these claims with the trial court and with
the United States Court of Appeals for the Fourth Circuit and
they were rejected. See United States v. Reid, 523
F.3d 310, 315-317 (4th Cir. 2008); United States v.
Reid, 0:04-cr-353-CMC (D.S.C. 2004) at R. 424, 519-1,
520-1, 524, 529. See also Reid v. Daniels, No.
12-CV-01780-BNB, 2012 WL 3099996, at *2 (D. Colo. July 30,
2012) (denying Reid's § 2241 petition filed with
respect to similar claims because Reid could not demonstrate
that the remedy provided by § 2255 is inadequate or
ineffective, as Reid had previously raised these claims with
the trial court and “the District of South Carolina
agreed with the government's argument that because the
jury found Mr. Reid guilty of conspiracy to possess with
intent to distribute and distribute cocaine base, the
conviction was not dependent on any finding of a particular
to the extent that Reid claims that he is entitled to relief
because of an Apprendi violation, the Sixth Circuit
has clearly held that “[a] challenge to a sentence
based on Apprendi cannot be the basis for an actual
innocence claim, ” brought in a § 2241 petition
pursuant to the savings clause of § 2255(e).
Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir.
2003). See also Padgett v. Grondolsky, No.
06-cv-024-KKC, 2006 WL 269940, at *3 (E.D. Ky. Feb. 2, 2006).
In addition, the rule announced in Apprendi is a
constitutional rule, not a statutory rule, and it has not
been made retroactive on collateral ...