United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
C. REEVES UNITED STATES DISTRICT JUDGE.
prisoner Ramon Hueso has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241, seeking
relief from his sentence. [Record No. 1] The matter is
pending for consideration of several issues related to the
conducting an initial screening, the Court entered an Order
on June 20, 2018, finding that, Hueso's petition required
a response before his claims may be adjudicated. [Record No.
4] The Order directed that a response be filed within sixty
days of service on the respondent. [Id.] The record
reflects that the respondent received a copy of the petition
on September 13, 2018. [Record No. 7]
response had been filed by October 22, 2018, Hueso requested
an entry of default against respondent, arguing that the
applicable time limit for filing a response had expired.
[Record No. 9] The Court denied Hueso's motion, noting
that, as respondent did not receive a copy of the petition
until September 13, 2018, the response time had not yet
expired. [Record No. 10] Hueso then moved for reconsideration
of the Order pursuant to Federal Rule of Civil Procedure
59(e). [Record No. 11]
may grant relief under Rule 59(e) only to (1) correct a clear
error of law; (2) account for newly discovered evidence; (3)
accommodate an intervening change in controlling law; or (4)
prevent a manifest injustice. American Civil Liberties
Union of Ky. v. McCreary Co., Ky., 607 F.3d 439, 450
(6th Cir. 2010); Besser v. Sepanek, 478 Fed.Appx.
1001, 1001-02 (6th Cir. 2012). Hueso's motion does not
satisfy any of these criteria.
first argues that the Court erroneously calculated the time
within which a response to his habeas petition must be filed.
He contends that, because the warden is named as the
respondent to the petition only in his official capacity,
service of the petition on the United States Attorneys'
Office and the United States Attorney General is sufficient
for service upon the respondent. However, to serve an
employee of the United States sued only in an official
capacity, “a party must serve the United States
and also send a copy of the summons and of the
complaint by registered or certified mail to
the…employee.” Fed. R. Civ. P 4(i)(2) (emphasis
added). Thus, for service to be complete, it must be made on
the United States, and a copy of the petition must be sent to
the respondent. Because the respondent did not receive a copy
of the petition until September 13, 2018 [Record No. 7], the
response was due within sixty days from that date. [Record
No. 4] Therefore, this period had not expired prior to
Hueso's motion for default.
next argues that the Court erred in allowing the respondent
60 days to file a response. He argues that 28 U.S.C. §
2243 requires the Court to “forthwith” issue the
writ or require the respondent to show cause why it should
not be granted within three days, or no more than twenty
days. But this assertion is simply incorrect.
screening of the petition, the Court possesses the discretion
to require a response, but only when necessary and within a
time it concludes was reasonable. Rule 4 of the Rules
Governing Section 2254 Cases states that “the judge
shall order the respondent to file an answer or other
pleading within the period of time fixed by the court or to
take such other action as the judge deems appropriate.”
Rule 1(b) of the 2254 Rules makes this rule applicable to
proceedings under 28 U.S.C. § 2241. Under the Rules
Enabling Act, 28 U.S.C. § 2072, Rule 4 takes precedence
over § 2243. Hendon v. Burton, No.
2:14-CV-14023, 2014 WL 8186698, at *1 (E.D. Mich. Nov. 17,
2014). Thus, the Court acted within its discretion in
providing 60 days within which respondent may file a response
to the petition. For these reasons, the Court adheres to its
prior conclusion that Hueso's motion for entry of default
was properly denied.
Court previously screened Hueso's petition under 28
U.S.C. § 2243 and concluded that a response to the
petition was needed before this matter could proceed. [Record
No. 4] However, 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)). In light of authority from the Sixth Circuit
issued after the Court initial screening, it is now clear
that Hueso is not entitled to relief. Thus, a response is no
longer required, and the petition will be dismissed for the
reasons outlined below.
a jury trial in October 2009, Hueso was convicted in the
United States District Court for the District of Alaska of
one count of unlawfully and knowingly conspiring with another
to distribute and possess with intent to distribute a
controlled substance (i.e., 50 grams or more of a mixture and
substance containing actual methamphetamine), in violation of
21 U.S.C. §§ 846 and 841(b)(1)(A). Before trial,
the United States filed a notice pursuant to 21 U.S.C. §
851 identifying Hueso's two prior drug felony drug
convictions from the State of Washington. As a result, he was
subject to enhanced statutory penalties under 21 U.S.C.
§ 841(b)(1)(A), including a maximum sentence of life
imprisonment and a mandatory minimum sentence of 20 years. In
January 2010, Hueso was sentenced to a term of imprisonment
of 240 months. United States v. Hueso, No.
3:09-CR-48-RRB-1 (D. Alaska 2009).
conviction and sentence were affirmed on appeal to the United
States Court of Appeals for the Ninth Circuit, United
States v. Hueso, 420 Fed.Appx. 776 (9th Cir. 2011).
Thereafter, his motions for post-conviction relief filed with
the trial court, including a motion to vacate filed pursuant
to 28 U.S.C. § 2255 and a motion for modification or
reduction of sentence pursuant ...