United States District Court, E.D. Kentucky, Southern Division, London
OPINION AND ORDER
E. Wier, United States District Judge.
Richmond, pro se, seeks a writ of habeas corpus
under 28 U.S.C. § 2241. DE 1. Richmond claims he is
entitled to a sentence reduction. Id. at 1. For the
following reasons, the Court DENIES
March 1, 1996, Richmond was convicted by a federal jury in
the Eastern District of Tennessee on several serious
charges. United States v. Richmond, No.
3:95-CR-126-TAV-DCP (E.D. Tenn.) at ECF No. 199 (Trial
Minutes). On June 7, 1996, Richmond was sentenced to an
aggregate term of 411 months, a five-year term of supervised
release, and $250 special assessment fee. Id. at ECF
No. 224. The Sixth Circuit affirmed his conviction and
sentence, United States v. Richmond, 129 F.3d 1266,
and the Supreme Court denied certiorari, Richmond v.
United States, 118 S.Ct. 1326 (1998).
by the Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2251 (2015) (finding that increasing
sentence under the residual clause of the Armed Career
Criminal Act violates due process), Richmond, on June 6,
2016, filed a § 2255 petition in the Tennessee district
court to vacate one count of his conviction. Richmond v.
United States, No. 3:16-cv-00307-TAV at ECF No. 1
(§ 2255 Motion). According to Richmond, Johnson
invalidated the residual clause in § 924(c)(3)(B)'s
definition of crime of violence and, thus, requires vacatur
of his § 924(c) convictions. Id. at ECF No. 1
at 4-9. Since originally filing his § 2255 petition,
Richmond has twice sought leave to amend his petition to add
claims that his § 924(c) conviction and sentence violate
Alleyne v. United States, 133 S.Ct. 2151 (2013), and
that his counsel was constitutionally ineffective on appeal.
Id. at ECF Nos. 6, 9. On March 1, 2019, Richmond
filed a letter asking the Tennessee district court what
effect the First Step Act of 2018's § 924(c)
stacking clarification had on his sentence calculation.
United States v. Richmond, No. 3:95-CR-126-TAV-DCP
(E.D. Tenn.) at ECF No. 294 (Motion). Specifically, he asked
whether he should “file [a] petition under 28 U.S.C.
§ 2241” or “amend the pending 28 U.S.C.
§ 2255 [petition].” Id.
March 4, 2019, Richmond filed the instant habeas petition
here under § 2241, seeking a sentence reduction under
the First Step Act, arguing he improperly received an
“extra-enhanced” penalty of twenty-five years for
a “second or subsequent” § 924(c) conviction
charged in the same indictment as the first
(“stacking”). DE 1, 4 (Petition) at 5. In his
conclusion, Richmond also asserts that his defense counsel
was ineffective at trial. Id. at 7.
petition is now before this Court for initial screening. At
this stage, a § 2241 petition fails only “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, during screening, evaluates the
pro se petition under a lenient standard, accepts
all factual allegations as true, and construes all legal
claims in Richmond's favor. See Erickson v.
Pardus, 127 S.Ct. 2197, 2200 (2007); Bell Atlantic
Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007);
but see Neitzke v. Williams, 109 S.Ct. 1827, 1831-32
(1989) (describing as “frivolous[, ]” claims
lacking “an arguable basis either in law or in
lenient construction, Richmond's claims do not survive
screening. First, Richmond's petition suffers fatal
technical deficiencies-he failed to either pay the filing fee
or, alternatively, move for leave to file in forma
pauperis. His petition also suffers procedural
deficiencies-the fact that Richmond's § 2255 motion
remains pending in the Tennessee district court prevent him
from challenging sentence legality under § 2241 in this
challenge to sentencing validity must be made under §
2255, unless the defendant demonstrates § 2255 is
“inadequate or ineffective to test the legality of his
detention, ” according to the “savings
clause” of 28 U.S.C. § 2255(e). United States
v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001). This
Court could not determine that Richmond's § 2255
petition is inadequate or ineffective while the motion is
still pending before the Tennessee district court. “A
prisoner's remedy under § 2255 is not inadequate or
ineffective merely because the prisoner is time-barred or
otherwise procedurally barred from seeking relief under
§ 2255, because the prisoner has already filed one
motion to vacate, or because the prisoner has been denied
permission to file a second or successive motion to
vacate.” Barnes v. Booker, 116 Fed.Appx. 560,
561 (6th Cir. 2004) (citing Charles v. Chandler, 180
F.3d 753, 755 (6th Cir.1999)). Motion pendency does not
render the § 2255 vehicle sufficiently inadequate.
See Gorley v. Snyder, 27 Fed.Appx. 464, 466 (6th
Cir. 2001) (pendency of defendant's § 2255 motion
does not render it inadequate or ineffective “simply
because a petitioner may be denied relief under §
2255”). Richmond's motion incorrectly seeks to
utilize § 2241 relief as “an additional,
alternative or supplemental remedy to that prescribed under
§ 2255.” Peterman, 249 F.3d at 461 (6th
aside these technical and procedural deficiencies, the Court
denies Richmond's motion on its merits, because he fails
to establish actual innocence. In order to “to utilize
§ 2241 (via § 2255's ‘savings
clause') as a way of circumventing § 2255's
restrictions on the filing of second or successive habeas
petitions, ” the petitioner must demonstrate an
intervening change in the law that establishes his actual
innocence. Charles, 180 F.3d at 755.
petitioner may demonstrate actual innocence of the underlying
offense in one of two ways: (1) showing that, after the
petitioner's conviction became final, the Supreme Court
issued a retroactively applicable decision reinterpreting the
substantive terms of the criminal statute, rendering the
petitioner's conduct non-qualifying. Wooten v.
Cauley, 677 F.3d 303, 307-08 (6th Cir. 2012); or, (2)
establishing that, as a matter of statutory interpretation, a
prior conviction used to enhance his or her federal sentence
no longer qualifies as a valid predicate offense. Hill v.
Masters, 836 F.3d 591, 599-600 (6th Cir. 2016). Richmond
fails to demonstrate actual innocence of either kind.
is correct that the First Step Act amended §
924(c)(1)(C) to allow stacking only where a prior conviction
was final. See First Step Act of 2018, Pub. L. No.
115-391, December 21, 2018, 132 Stat. 5194, § 403(a).
However, the amendment is not retroactive. See Id.
at § 403(b) (applying the change only “if a
sentence for the offense has not been imposed as of such date
of enactment”). The only retroactive portion of the
First Step Act is § 404, which permits district courts
to reduce a sentence retroactively based on the revised
statutory penalties of the Fair Sentencing Act of 2010.
See First Step Act § 404(a). ...