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Telemaque v. Barhart

United States District Court, E.D. Kentucky, Southern Division, London

October 17, 2019

J.A. BARHART, Warden, Respondent.

          OPINION & ORDER

          Gregory F. Van Tatenhove, United States District Judge.

         Inmate 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).

         In 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).

         In his 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.[1] 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].

         Telemaque's 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 procedurally improper.

         First, 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).

         Second, 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.

         Accordingly, the Court ORDERS as follows:

         1. The Court DENIES Telemaque's petition for a writ of habeas corpus [R. 1].

         2. This action is DISMISSED and STRICKEN from the Court's docket.



[1] 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. ...

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