United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT.
David Neil Phillips is a prisoner confined at the United
States Penitentiary (“USP”)-McCreary located in
Pine Knot, Kentucky. Proceeding without an attorney, Phillips
has filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241. [R. 1] However, Phillips' petition
was not filed on a form approved for use by this Court as
required by Local Rule 5.2. More critically, Phillips did not
pay the $5.00 filing fee as required by 28 U.S.C. §
1914, nor did he file a motion for leave to proceed in
forma pauperis. Thus, dismissal of Phillips'
petition without prejudice is warranted on this ground alone.
even if the Court overlooked Phillips' failure to pay the
filing fee, Phillips' petition must be denied for failure
to adequately articulate a claim for relief. Petitions filed
under § 2241 are subject to initial screening by the
Court 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)). See also Alexander, 419 Fed.Appx. at
545 (applying the pleading standard set forth in Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) to habeas corpus
5-page bare-bones petition consists mostly of generic legal
arguments and is nearly devoid of factual information
specific to his case. From what the Court is able to
ascertain, Phillips challenges a conviction for violating 18
U.S.C. § 924(c). [R. 1 at p. 1 (requesting that the
Court review his § 924(c) conviction)] However, Phillips
may not assert his claims in a habeas corpus petition filed
pursuant to § 2241. Rather, a federal prisoner must file
a motion under 28 U.S.C. § 2255 to challenge the
legality of his conviction or sentence. United States v.
Peterman, 249 F.3d 458, 461 (6th Cir. 2001). A habeas
corpus petition under 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 Fed.Appx. 317,
320 (6th Cir. 2001). The “savings clause” of 28
U.S.C. § 2255(e) provides a narrow exception to this
rule where § 2255 is structurally “inadequate or
ineffective” to seek relief. The exception does not
apply simply because that remedy under § 2255 is no
longer available, whether because the prisoner did not file a
§ 2255 motion, the time to do so has passed, or the
motion was denied on substantive grounds. Copeland v.
Hemingway, 36 Fed.Appx. 793, 795 (6th Cir. 2002).
Sixth Circuit set forth a rule defining the parameters for
challenging a conviction in a § 2241 petition in
Wooten v. Cauley, 677 F.3d 303, 307 (6th Cir. 2012).
In Wooten, the Sixth Circuit held that § 2241
may be used to challenge the validity of a federal conviction
only where, after the petitioner's conviction became
final, the Supreme Court issues a retroactively-applicable
decision interpreting the federal criminal statute under
which the petitioner was convicted in such a manner that the
conduct underlying the conviction is no longer criminal.
Wooten, 677 F.3d at 307-08; see also Charles v.
Chandler, 180 F.3d 753, 756-58 (6th Cir. 1999).
Phillips asserts that he is entitled to relief based on case
law issued subsequent to his conviction interpreting
sentencing enhancements applied where the defendant has prior
convictions for “violent felonies” or
“crimes of violence, ” including Sessions v.
Dimaya, ___ U.S. ___, 138 S.Ct. 1204 (2018) and
United States v. Davis, 677 Fed.Appx. 933, 935 (5th
Cir. 2017), cert. granted, judgment vacated sub nom.
Glover v. United States, 138 S.Ct. 1979, 201 L.Ed.2d 239
(2018), and cert. granted, judgment vacated, 138
S.Ct. 1979, 201 L.Ed.2d 239 (2018). However, Phillips is not
challenging the use of a prior conviction for a
“violent felony” or “crime of
violence” as a predicate offense for sentencing
enhancement purposes, but, rather, is challenging his actual
§ 924(c) conviction itself.
a review of the record in Phillips' criminal case shows
that, pursuant to a plea agreement with the United States,
Phillips pleaded guilty to one count of conspiracy to
manufacture, distribute, dispense, and possess with intent to
distribute 500 grams or more of a mixture and substance
containing a detectable amount of methamphetamine and five
kilograms or more of cocaine in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A) and 846 (Count One) and one
count of possession of a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c)
(Count Two). United States v. Phillips, No.
5:12-cr-236-FL-1 (E.D. N.C. ). Thus, his § 924(c)
conviction was not for the possession of a firearm in
relation to a crime of violence, but rather for possessing a
firearm in furtherance of a drug trafficking crime.
Accordingly, the case law upon which he relies in his §
2241 petition simply does not apply to him.
addition, to the extent that Phillips argues that §
924(c) is unconstitutional, this claim does not hinge upon a
Supreme Court decision of statutory interpretation: it is a
constitutional claim that must be asserted if at all pursuant
to 28 U.S.C. § 2255(h)(2). Welch v. United
States, ___U.S. ___, 136 S.Ct. 1257 (2016) (holding that
Johnson v. United States, ___ U.S. ___, 135 S.Ct.
2551 (2015) is retroactively applicable to cases on
collateral review, and hence can be asserted as a ground for
relief in a second or successive § 2255 motion pursuant
to 28 U.S.C. § 2255(h)(2)); In re Watkins, 810
F.3d 375, 377 (6th Cir. 2015). See also Rosello v. Warden
F.C.I. Allenwood, 735 Fed.Appx. 766, 768 n.5 (3d Cir.
2018) (holding that claims under Johnson and
Dimaya are “precisely the type of
constitutional claim[s] that can be pursued in a second or
successive § 2255 motion”). Because Phillips'
constitutional claim is of the kind that may be asserted in a
habeas petition filed pursuant to § 2255, that remedy is
not structurally “inadequate and ineffective” to
test the legality of his detention, rendering resort to
§ 2241 impermissible. Truss v. Davis, 115
Fed.Appx. 772, 773-74 (6th Cir. 2004); McDowell v.
Warden, FCC Medium Coleman, 694 Fed.Appx. 692, 693-94
(11th Cir. 2017).
Phillips' claim that he was denied the effective
assistance of counsel as guaranteed by the Sixth Amendment is
a constitutional claim of ordinary trial error which could,
and therefore 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)
(claim under Strickland that counsel was ineffective
may not be pursued under § 2241); Jameson v.
Samuels, 555 Fed.Appx. 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
of these reasons, Phillips fails to allege facts sufficient
to establish that he is entitled to relief and his petition
will be denied.
the Court hereby ORDERS as follows:
1. Phillips' petition for a writ of habeas corpus brought
pursuant to 28 U.S.C. § 2241 [R. 1] is
2. All pending requests for relief are DENIED AS
3. This action is DISMISSED and
STRICKEN from the Court's active ...