United States District Court, E.D. Kentucky, Southern Division, London
OPINION & ORDER
Gregory F. Van Tatenhove, United States District Judge.
Stephen Telemaque has filed a pro se 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 of the petition pursuant to 28 U.S.C. § 2243.
Alexander v. Northern Bureau of Prisons, 419
Fed.Appx. 544, 545 (6th Cir. 2011).
October 2015, Telemaque pleaded guilty in Miami, Florida to
one count of conspiracy to possess with intent to distribute
a controlled substance (ethylone, specifically) in violation
of 21 U.S.C. § 846. Three months later the trial court
imposed a 180-month sentence. Telemaque has challenged his
conviction and sentence through numerous appeals, motions,
and collateral attacks, without success. United States v.
Telemaque, No. 1: 15-CR-20531-UU-1 (S.D. Fla. 2015).
initial motion for relief under 28 U.S.C. § 2255,
Telemaque asserted that his counsel was ineffective. That
motion was denied in October 2018. Two months later,
Telemaque filed a motion for relief from that judgment,
contending that his conviction was invalid under the Eleventh
Circuit's recent decision in United States v.
Phifer, 909 F.3d 372 (11th Cir. 2018). In
Phifer, the Eleventh Circuit held that regulations
promulgated by the Drug Enforcement Agency did not clearly
indicate that ethylone constituted a positional isomer of
butylone, and thus it was unclear whether ethylone was a
controlled substance. The court of appeals therefore remanded
the case to the district court to determine the generally
accepted definition of a positional isomer. Id. at
382, 385-86. In his 60(b) motion, Telemaque argued that
Phifer established that ethylone is not a controlled
substance, rendering his conviction invalid. The trial court
denied that motion, concluding that Telemaque's motion
sought relief on a new legal ground and therefore that he
needed permission to pursue it as a second or successive
§ 2255 motion. Telemaque filed several appeals in that
case. Some of them were dismissed on procedural grounds or
for failure to prosecute. Telemaque v. United
States, No. 1: 18-CV-23516-UU (S.D. Fla. 2018). But one
of those appeals, which includes Telemaque's arguments
under Phifer, remains pending. See Telemaque v.
United States, No. 18-14757 (11th Cir. 2018) [Order of
September 9, 2019].
current petition asserts the same argument that he previously
asserted in his § 2255 motions and which is pending
before the Eleventh Circuit: that under Phifer
ethylone is not a controlled substance and thus he is
actually innocent of violating Section 846. [R. 1-1] The
Court will deny the petition as both premature and
Telemaque may not seek relief in a § 2241 petition to
assert a claim that he has asserted in § 2255
proceedings which remain pending. The correct mechanism for a
federal prisoner to challenge his or her conviction or
sentence is through a motion to vacate filed pursuant to 28
U.S.C. § 2255(a). Terrell v. United States, 564
F.3d 442, 447 (6th Cir. 2009). A habeas corpus petition under
28 U.S.C. § 2241 may only be used to challenge a federal
conviction under very narrow circumstances where §
2255(a) provides a remedy that is structurally inadequate.
Martin v. Perez, 319 F.3d 799, 804 (6th Cir. 2003).
Here, Telemaque's arguments under Phifer are
currently pending in § 2255 proceedings before the
Eleventh Circuit. Because those proceedings may render his
Phifer claim in this proceeding moot, he must
complete the process of seeking relief via § 2255 before
he may make even a colorable argument that his remedy under
that section is “inadequate and ineffective.”
Charles v. Chandler, 180 F.3d 753, 756 (6th Cir.
1999); White v. Grondolsky, No. 6: 06-309-DCR, 2006
WL 2385358, at *3 (E.D. Ky. Aug. 17, 2006).
Telemaque's claim under Phifer is not cognizable
under § 2241. Because this claim challenges his §
846 conviction rather than his sentence, he must show that
after his conviction became final, the Supreme Court issued 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 v. Cauley, 677 F.3d 303,
307 (6th Cir. 2012); Charles v. Chandler, 180 F.3d
753, 756-58 (6th Cir. 1999). Telemaque relies upon
Phifer, but that decision was issued by the Eleventh
Circuit, not the United States Supreme Court. He has thus not
identified a subsequent, retroactive change in statutory
interpretation by the Supreme Court that reveals that he has
been convicted of an offense that the law does not make
criminal. Under Wooten, his claim is not properly
before this Court. Even if this were not so, Phifer
will not bear the weight Telemaque asks it to carry: the
Eleventh Circuit has recently held that his argument is based
upon a clear mischaracterization of Phifer's
holding: “Contrary to Telemaque's argument,
Phifer did not hold that ethylone was not a
controlled substance based on the DEA's
definition.” In re: Stephen Telemaque, No.
19-12444-E (11th Cir. July 19, 2019). He therefore also fails
to establish substantive grounds for relief.
the Court ORDERS as follows:
Court DENIES Telemaque's petition for a
writ of habeas corpus [R. 1].
action is DISMISSED and
STRICKEN from the Court's docket.
 In May 2019 Telemaque filed another
§ 2255 motion seeking relief under Phifer. The
trial court denied that motion on September 5, 2019, because
Telemaque had again failed to obtain permission from the
Eleventh Circuit to file it. Telemaque v. ...