United States District Court, E.D. Kentucky, Southern Division, Pikeville
OPINION & ORDER
E. Wier, United States District Judge.
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.
2011, a Southern District of Ohio grand jury returned a
superseding indictment charging Roman-Oliver with various
violations of the Controlled Substances Act,  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.
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). In March 2012, the trial court imposed
a 192-month sentence. Id. at ECF No. 120 (Judgment).
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).
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
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.
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.
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.
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).
2255(e)'s so-called “savings
clause” 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