United States District Court, E.D. Kentucky, Southern Division, London
WILBERT E. HACKLEY, Petitioner,
J. RAY ORMOND, Respondent.
MEMORANDUM OPINION AND ORDER
K. CALDWELL JUDGE
Wilbert E. Hackley is a federal inmate currently housed at
the United States Penitentiary (“USP”)-McCreary
located in Pine Knot, Kentucky. Proceeding without a lawyer,
Hackley has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 seeking relief from his
conviction. [R. 1] However, his petition will be denied.
initial matter, Hackley has not paid the $5.00 filing fee,
nor has he filed a motion to waive payment of the fee.
Although he attaches a letter to the Clerk of the Court
claiming that a $5.00 money order was being sent “for
the papers” Hackley would be sending to the Court, this
letter is dated June 21, 2019. [R. 1-4] Hackley signed his
§ 2241 petition on November 25, 2019, and it was
received by the Court on December 2, 2019. [R. 1] Filing fees
must be paid upon filing, not as a “placeholder”
for a petition filed over five months later.
putting Hackley's non-payment of the filing fee aside,
his petition will be denied on its merits. Petitions filed
under § 2241 are subject to initial screening by the
Court required by 28 U.S.C. § 2243. Alexander v.
Northern Bureau of Prisons, 419 Fed.Appx. 544, 545 (6th
Cir. 2011). A petition will be denied “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)). See also Alexander, 419 Fed.Appx. at
545 (applying the pleading standard set forth in Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009), to habeas corpus
April 20, 1984, Hackley was found guilty on charges stemming
from his involvement in a prison riot and the murder of
Gregory Gunter. United States v. Hackley, No.
3:83-cr-107 (E.D. Va. 1983). See also United States v.
Hackley, 164 Fed.Appx. 301, 302 (4th Cir. 2006).
Specifically, Hackley was convicted of murder in violation of
18 U.S.C. § 1111; attempting to cause and assist in a
mutiny and riot in violation of 18 U.S.C. § 1792;
conveyance of a weapon within a federal penal institution in
violation of 18 U.S.C. § 1791; and assaulting and
impeding an officer of a United States penal institution, in
violation of 18 U.S.C. § 111. Id. Hackley was
sentenced in the United States District Court for the Eastern
District of Virginia to life imprisonment for the murder
conviction and three consecutive ten-year terms for the
remaining counts, for a total term of imprisonment of life
plus thirty years. Id. His conviction was confirmed
on appeal by the United States Court of Appeals for the
Fourth Circuit. Id.
filed a motion to vacate his conviction pursuant to 28 U.S.C.
§ 2255 (originally filed as a § 2241 petition, but
treated as a § 2255 motion), which was denied by the
District Court and affirmed on appeal by the Fourth Circuit.
Id. at 303, 306. He also filed another § 2241
petition in the United States District Court for the Middle
District of Pennsylvania based on the Parole Commissions
failure to provide him with a release date. Wilbert E.
Hackley v. Warden Bledsoe, No. 3:08-cv-1500-ARC (M.D.
Pa. 2008). This § 2241 petition was also denied and the
denial affirmed on appeal by the United States Court of
Appeals for the Third Circuit. Hackley v. Bledsoe,
350 Fed.Appx. 599, 601 (3d Cir. 2009).
has now filed a new § 2241 petition in this Court,
arguing that he is “actually innocent” of his
murder conviction. [R. 1] Specifically, Hackley claims that
he was not convicted of an “enumerated offense”
within 18 U.S.C. § 1111 and that his conduct
“cannot be said to satisfy § 1111's elements
of ‘perpetrated with malice aforethought, premedicated
or in preparation of one of the statutes' enumerated
offenses.” [R. 1]
the Court must deny relief because Hackley's claims are
not cognizable in a habeas corpus petition filed pursuant to
§ 2241. A federal prisoner generally may not use a
§ 2241 petition to challenge the legality of his
sentence. See United States v. Peterman, 249 F.3d
458, 461 (6th Cir. 2001). Rather, a prisoner who wishes to
challenge the legality of his conviction or sentence must
file a motion under § 2255. Id. (explaining the
distinction between a § 2255 motion and a § 2241
petition). A § 2241 petition may not be used for this
purpose because it does not function as an additional or
alternative remedy to the one available under § 2255.
Hernandez v. Lamanna, 16 Fed.Appx. 317, 320 (6th
“savings clause” of 28 U.S.C. § 2255(e)
creates an extraordinarily narrow exception to this
prohibition if the remedy afforded by § 2255 is
“inadequate or ineffective” to test the legality
of the prisoner's detention. Truss v. Davis, 115
Fed.Appx. 772, 773-74 (6th Cir. 2004). A motion under §
2255 is not “inadequate or ineffective” simply
because the prisoner's time to file a § 2255 motion
has passed; he did not file a § 2255 motion; or he did
file such a motion and was denied relief. 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 problem in § 2255 forecloses even one round
of effective collateral review...”). Rather, to
properly invoke the savings clause, the petitioner must be
asserting a claim that he is “actually innocent”
of the underlying offense by showing that, after the
petitioner's conviction became final, the United States
Supreme Court issued a retroactively applicable decision
re-interpreting the substantive terms of the criminal statute
under which he was convicted in a manner that establishes
that his conduct did not violate the statute, Wooten v.
Cauley, 677 F.3d 303, 307-08 (6th Cir. 2012), or
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, 836 F.3d at 599-600. However, “a federal
prisoner cannot bring a claim of actual innocence in a §
2241 petition through the saving clause without showing that
he had no prior reasonable opportunity to bring his argument
for relief.” Wright v. Spaulding, 939 F.3d
695, 705 (6th Cir. 2019).
Hackley cites to no authority in support of his claim, much
less a retroactively-applicable Supreme Court decision
re-interpreting the substantive terms of 18 U.S.C. §
1111 in a manner establishing that his conduct did not
violate that statute. Rather, he simply requests that the
Court review materials from a parole hearing and make its own
determination that, contrary to the jury's finding, his
conduct did not violate § 1111. However, to the extent
that Hackley argues that his conviction was erroneous, such a
claim could and must have been asserted before the trial
court, upon direct appeal, or in a motion pursuant to 28
U.S.C. § 2255. See 28 U.S.C. § 2255(h)(2).
See also In re Conzelmann, 872 F.3d 375, 376
(6th Cir. 2017) (noting that, under 28 U.S.C.
§ 2255(h), “[a] second or successive collateral
attack is permissible only if the court of appeals certifies
that it rests on (1) newly discovered evidence or (2)
“a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable.”); In re Watkins, 810
F.3d 375, 377 (6th Cir. 2015). Thus, Hackley's
“actual innocence” claim clearly falls outside
the purview of § 2241.
Hackley cannot show “he had no prior reasonable
opportunity to bring his argument for relief, ”
Wright, 939 F.3d at 705, in light of his multiple
appeals and post-conviction habeas petitions for relief.
See Sanders v. United States, 373 U.S. 1, 18 (1963)
(“[I]f a prisoner deliberately withholds one of two
grounds for federal collateral relief at the time of filing
his first application, in the hope of being granted two
hearings rather than one or for some other such reason, he
may be deemed to have waived his right to a hearing on a
second application presenting the withheld
ground…Nothing in the traditions of habeas corpus
requires the federal courts to tolerate needless piecemeal
litigation, to entertain collateral proceedings whose only
purpose is to vex, harass, or delay.”). Accordingly, as
in Wright, Hackley cannot now use the saving clause
to get another bite at the apple. Wright, 939 F.3d
of these reasons, Hackley's petition fails to establish
any basis for habeas relief.
it is hereby O ...