United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE.
Lozaro Corral is a federal inmate currently incarcerated at
the Federal Correctional Institution
(“FCI”)-Manchester in Manchester, Kentucky.
Proceeding without counsel, Mr. Corral has filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2241. [R. 1.] This matter is before the Court to conduct the
initial screening required by 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)).
November 2013, pursuant to a plea agreement with the United
States, Mr. Corral pled guilty in the United States District
Court for the Northern District of Illinois to two counts of
being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g). In April 2014, Mr. Corral was sentence
to a term of imprisonment of 70 months on each count, to run
consecutively to each other, for a total term of imprisonment
of 140 months. United States v. Corral, No.
1:12-cr-440-1 (N.D. Ill. 2012).
Corral appealed his conviction and sentence to the United
States Court of Appeals for the Seventh Circuit. The Seventh
Circuit affirmed, rejecting Mr. Corral's arguments that
the trial court did not properly consider his family
circumstances and “overrepresented” his criminal
history in determining Mr. Corral's sentence. United
States v. Corral, 592 Fed.Appx. 519, 520 (7th Cir.
2015). The Seventh Circuit noted that Mr. Corral's
appellate claim was, in essence, a disagreement with the
trial court's application of the sentencing factors in 18
U.S.C. § 3553(a), which is an issue of substantive
reasonableness. Id. at 521. The Seventh Circuit then
found that the trial court weighed the appropriate factors
and reached a reasonable conclusion before imposing Mr.
Corral's within-guideline sentence, and, accordingly, Mr.
Corral's sentence was affirmed. Id.
Corral has now filed a § 2241 petition in this Court,
identifying four grounds for relief. [R. 1.] He first argues
that his counsel, Alexander M. Salerno, was ineffective
during his plea and sentencing in violation of the Sixth
Amendment. In his brief submitted in conjunction with his
petition, he claims that Mr. Salerno failed to object to an
alleged miscalculation of the Sentencing Guidelines by the
trial court, failed to file proper grounds for appeal, failed
to file a petition for a writ of certiorari with the United
States Supreme Court, failed to file a petition for relief
under 28 U.S.C. § 2255, and was ineffective for
counseling Mr. Corral to “sign paper to waive habeas
corpus, ” which Mr. Corral says he signed without
understanding. [R. 1-2 at p. 1-2] His petition also
alleges that Mr. Salerno passed away before filing Mr.
Corral's petition for relief under 28 U.S.C. § 2255,
thus denying him the opportunity to timely file a § 2255
petition within the one-year statute of limitations. [R. 1 at
Mr. Corral argues that the trial court's imposition of
consecutive sentences violates his due process rights under
the Fifth and Fourteenth Amendments of the Constitution, as
well as his “right to be tried under a perfect
indictment” under the Sixth Amendment and his right to
be free from double jeopardy. [R. 1 at 7.] The allegations of
Mr. Corral's petition and brief in support are somewhat
confusing and disjointed, but he seems to argue that,
although he concedes that he had a prior felony conviction
for second-degree murder, the trial court erred in
considering other prior convictions in imposing a
“career enhancement” of consecutive, rather than
concurrent, sentences on the two counts for which he was
convicted. [R. 1-2 at 3-6.]
third and fourth claims allege due process and double
jeopardy violations based on his argument that the trial
court miscalculated Mr. Corral's offense level under
U.S.S.G. § 2K2.1(a). [R. 1 at 7-8.] In addition, in his
brief in support of his petition, Mr. Corral also argues that
he is entitled to relief because no one told him that he
would be given a consecutive sentence if he pled guilty and
the trial court never explained his right to a jury trial.
[R. 1 at 9.]
Corral's 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.
Mr. Corral's 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, Mr. Corral's claims - including his ineffective
assistance of counsel claim, his claims of due process and
double jeopardy violations, and his claim that the trial
court improperly imposed consecutive sentences - are claims
of ordinary trial error and/or constitutional claims 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). Indeed, to the extent that Mr. Corral's
petition argues that the trial court
“miscalculated” his applicable sentencing
guideline range, he has already raised a similar argument on
appeal, which was considered and rejected by the Seventh
Circuit. Corral, 592 Fed.Appx. at 521.
Corral suggests that he should be able to proceed in a §
2241 proceeding via the “savings clause” of
§ 2255(e) because his criminal attorney, Alexander M.
Salerno, passed away before filing Mr. Corral's petition
for relief under 28 U.S.C. § 2255, thus denying Mr.
Corral the opportunity to timely file a § 2255 within
the one-year statute of limitations. [R. 1 at 6-7.] He also
states that, while his attorney was working on his appeal,
Mr. Corral was not notified in time to file a § 2255
petition or motion in a timely manner. [R. 1 at 8.] However,
while these circumstances are unfortunate, the expiration of
the one-year ...