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Roman-Oliver v. Joyner

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

December 9, 2019

WARDEN JOYNER, Respondent.

          OPINION & ORDER

          Robert E. Wier, United States District Judge.

         Pro se Petitioner German Roman-Oliver-a federal inmate-seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. See DE 1. Roman-Oliver alleges that a Southern District of Ohio District Court impermissibly enhanced his sentence based on conduct underlying charges for which Roman-Oliver was acquitted. See Id. at 9. The Court conducts an initial review under 28 U.S.C. § 2243. For the following reasons and under the applicable standards, the Court DENIES the petition.[1]


         In 2011, a Southern District of Ohio grand jury returned a superseding indictment charging Roman-Oliver with various violations of the Controlled Substances Act, [2] including: conspiring to both distribute 5 kilograms of cocaine and to possess 500 grams of cocaine with distributive intent (Count One); knowingly and intentionally distributing 500 grams of cocaine (Count Two); and separately conspiring to distribute 5 kilograms of cocaine (Count Three). United States v. German Roman-Oliver, No. 2:11-cr-69-EAS-NMK-1 (S.D. Ohio) (hereinafter Roman-Oliver I), ECF No. 32.

         Roman-Oliver proceeded to trial. Ultimately, a jury convicted Petitioner of a lesser included offense of Count One, conspiring to distribute 500 grams of cocaine, and acquitted Roman-Oliver of the Count Two and Three charges. See id. at ECF Nos. 101 (Verdict Form).[3] In March 2012, the trial court imposed a 192-month sentence. Id. at ECF No. 120 (Judgment).

         Roman-Oliver appealed his sentence. Id. at ECF No. 127 (Notice). Before the Sixth Circuit, among other arguments, Roman-Oliver challenged the District Court's consideration of acquitted conduct in calculating the proper Guidelines range. United States v. Roman-Oliver, 564 Fed.Appx. 156, 166-67 (6th Cir. 2014) (hereinafter Roman-Oliver II). The Circuit, rejecting the argument as meritless, explained: “[T]his Court's en banc opinion in United States v. White clearly decided this issue: ‘The Sixth Amendment does not prevent a district court from relying on acquitted conduct in applying an advisory guidelines system.'” Id. at 166-67 (quoting 551 F.3d 381, 384 (6th Cir. 2008)) (alterations omitted) (emphasis in original).

         Roman-Oliver also argued that Alleyne v. United States, 133 S.Ct. 2151 (2013) prohibited the sentencing court from relying on conduct not proven to a jury beyond a reasonable doubt. Id. at 167. The Circuit rejected the additional theory:

In Alleyne, the Court held that “any fact that increases the mandatory minimum is an ‘element' of the crime that must be submitted to the jury and found beyond a reasonable doubt.” Alleyne, 570 U.S. at 103. Unfortunately for Petitioner, Alleyne does not apply to this case. The district court did not apply a mandatory minimum when it determined Petitioner's sentence. In fact, no mandatory minimum was ever at issue in this case. Instead, the district court determined a Guidelines range, which is not mandatory, and then used its discretion to vary downward. Alleyne does not stand for the proposition that any conduct used to determine a sentence must be proved beyond a reasonable doubt.

Id. at 167 (alterations and footnote omitted). Finally, Roman-Oliver contended that the trial court erroneously considered conduct not actually proven by a preponderance of the evidence in determining Petitioner's relevant conduct. Id. The Circuit, unconvinced, found that the record preponderantly supported the District Court's drug-quantity calculation. Id. at 167-68. The Court affirmed the sentence.

         Ten months later, in February 2015, Roman-Oliver filed a § 2255 motion alleging that trial counsel ineffectively failed to advise him of two plea offers. Roman-Oliver I, at ECF No. 154. The trial judge adopted a recommendation to deny the motion, id. at ECF Nos. 162 (R. & R.) & 164 (Order), and rejected Roman-Oliver's request for reconsideration, id. at ECF No. 167 (Op. & Order). Both the District Court and the Sixth Circuit denied Petitioner's requests for a certificate of appealability. Id. at ECF Nos. 169 & 171.

         Now before this Court, via § 2241, Roman-Oliver argues, again, that the trial court erroneously relied on acquitted conduct in calculating the Guidelines range. See generally DE 1. Petitioner contends that the Supreme Court's decision in United States v. Haymond, 139 S.Ct. 2369 (2019), “sheds new light” on consideration of acquitted conduct and shows that the sentencing process violated his Fifth and Sixth Amendment rights. Id. at 9-10. The Court, upon thorough review and for the following reasons, finds that Roman-Oliver plainly is not entitled to relief.


         First-Critically, Roman-Oliver's claim is not properly cognizable under § 2241. For sentencing challenges, this is the general rule. See United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001). Section 2255 is the proper vehicle for collaterally attacking detention legality; § 2241, rather, is reserved “for claims challenging the execution or manner in which the sentence is served[, ]” such as those involving sentence credit computation issues. Id. Foundationally, a § 2241 petition does not function as an additional or alternative remedy to the one available under § 2255, a route Roman-Oliver already travelled. Hernandez v. Lamanna, 16 Fed.Appx. 317, 320 (6th Cir. 2001).

         Section 2255(e)'s so-called “savings clause”[4] provides an-extraordinarily narrow- exception to this rule. A § 2241 petitioner may invoke the savings clause by showing that the § 2255 remedy is “inadequate and ineffective to test the legality of [ ] detention[.]” 28 U.S.C. § 2255(e); Martin v. Perez, 319 F.3d 799, 803 (6th Cir. 2003) (The petitioner faces the § 2255(e) burden.). A prisoner does not clear the § 2255(e) hurdle simply because he failed to file (or timely file) a § 2255 motion or because a previous motion yielded no relief. See Copeland v. Hemingway, 36 Fed.Appx. 793, 795 (6th Cir. 2002); Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002) (holding that § 2241 is available “only when a structural ...

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