United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL United States District Judge
December 13, 2005, a jury found defendant guilty of
conspiracy to kill a federal witness, attempted murder of a
federal witness and discharge of a firearm during the
commission of a crime of violence. This matter is before the
Court on defendant's Petition For A Writ Of Habeas
Corpus Under 28 U.S.C. § 2241 (Doc. #1 in Civil
Case No. 16-3245-KHV, Doc. #573 in Criminal Case No.
04-20044-01-KHV) filed November 9, 2015, which the Court also
construes as a motion to vacate conviction under 28 U.S.C.
§ 2255. For reasons stated below, the Court dismisses
defendant's petition under 28 U.S.C. § 2241 for lack
of jurisdiction and dismisses defendant's petition under
28 U.S.C. § 2255 as an unauthorized second or successive
26, 2005, a grand jury returned an eleven-count indictment
which, in part, charged defendant with conspiracy to
distribute or possess with intent to distribute more than 50
grams of cocaine base in violation of 21 U.S.C. § 846
(Count 1), distributing and possessing with intent to
distribute cocaine base (Counts 2 through 7), conspiracy to
kill a federal witness in violation of 18 U.S.C. §§
371 and 1512(k) (Count 8), attempted murder of a federal
witness in violation of 18 U.S.C. § 1512(a)(1)(A) (Count
10) and discharge of a firearm during the commission of a
crime of violence in violation of 18 U.S.C. § 924(c)(1)
October 22, 2005, pursuant to 21 U.S.C. § 851, the
government filed an Enhancement Information (Doc.
#310) to establish defendant's prior drug felony
conviction in Wyandotte County (Kansas) District Court,
Juvenile Division, case number 90-JV-1644. The filing of the
information increased the statutory maximum on Counts 2 and 3
from 20 to 30 years in prison and increased the statutory
maximum on Counts 4 through 7 from 40 years to life in
October 27, 2005, without a plea agreement, defendant pled
guilty to Counts 2 through 7. On October 31, 2005, the Court
commenced a jury trial on the remaining counts against
defendant (as well as charges against co-defendants Pamela
Tyler and Mark McGee). On December 13, 2005, the jury
returned a verdict which found defendant not guilty of Count
1 but guilty of Counts 8, 10 and 11.
total offense level was 44, with a criminal history category
VI, resulting in a guideline sentence of life. On May 2,
2006, the Court sentenced defendant to 360 months in prison
on Counts 2 and 3; life in prison on each of Counts 4 through
7; 240 months in prison on Counts 8 and 10; and 120 months in
prison on Count 11 with the sentence on Count 11 to be served
consecutively to the sentence on all other counts. Defendant
appealed his convictions and challenged a number of the
enhancements which the Court applied during the contested
sentencing hearing. On July 14, 2008, the Tenth Circuit
affirmed defendant's convictions and sentence. United
States v. Ivory, 532 F.3d 1095 (10th Cir. 2008).
17, 2009, defendant filed a motion to vacate his sentence
under 28 U.S.C. § 2255. See Motion Under 28 U.S.C.
§ 2255 To Vacate, Set Aside Or Correct Sentence By
Person In Federal Custody (Doc. #514). Liberally
construed, defendant's Section 2255 motion alleged that
(1) the district court erred in considering defendant's
juvenile offender adjudication in 1990 to enhance
defendant's sentence under 21 U.S.C. § 851; (2)
defense counsel provided ineffective assistance because he
did not object to use of defendant's juvenile conviction
in the calculation of his sentence; (3) defense counsel
provided ineffective assistance because he did not seek en
banc review of the Tenth Circuit's decision or file a
petition for writ of certiorari and (4) the Court erred in
not requiring a family member of a juror to testify about a
conversation with the juror. On February 26, 2010, the Court
overruled defendant's motion. See Memorandum And
Order (Doc. #525).
November 9, 2015, defendant filed his present petition in the
United States District Court for the Middle District of
Pennsylvania. Liberally construed, defendant's petition
alleges that (1) he is actually innocent of Count 8
(conspiracy to kill a federal witness in violation of 18
U.S.C. §§ 371 and 1512(k)); (2) he is actually
innocent of Count 10 (attempted murder of a federal witness
in violation of 18 U.S.C. § 1512(a)(1)(A)) and (3) the
Court lacked jurisdiction to impose a sentence under 21
U.S.C. §§ 841(b)(1)(B) and 851.
December 1, 2016, the Honorable Matthew W. Brann of the
Middle District of Pennsylvania transferred defendant's
petition to the District of Kansas. See Order (Doc.
#12) at 2-3. In the order transferring defendant's
petition, Judge Brann also adopted in its entirety the report
and recommendation of Magistrate Judge Karoline Mehalchick.
See id. Neither Judge Brann's order nor the
magistrate judge report and recommendation specifically
addressed whether defendant's petition should be docketed
in this Court as a motion under 28 U.S.C. § 2241 or one
under 28 U.S.C. § 2255. The Clerk of the District of
Kansas docketed the petition as a motion under both statutory
I. Relief Under 28 U.S.C. § 2241
habeas petition under Section 2241 attacks the execution of a
sentence by challenging matters that occur at prison, such as
deprivation of good-time credits and other prison
disciplinary matters. McIntosh v. U.S. Parole
Com'n, 115 F.3d 809, 812 (10th Cir. 1997); see
Haugh v. Booker, 210 F.3d 1147, 1149 (10th Cir. 2000)
(Section 2241 petitions challenge execution, not validity, of
sentence). The Court ordinarily lacks jurisdiction to
consider a petition under Section 2241 which attacks an
underlying federal conviction or sentence. McIntosh,
115 F.3d at 811-12.
under Section 2241, petitioner attacks the validity of his
federal criminal conviction and sentence. After defendant has
exhausted his direct appeal in a criminal action, his
exclusive remedy for raising such a challenge is under
Section 2255 unless that remedy is inadequate or ineffective.
28 U.S.C. § 2255(e) (federal prisoner may file Section
2241 habeas petition only if remedy by motion under Section
2255 is inadequate or ineffective to test legality of
movant's detention); see United States v.
McIntyre, 313 F.App'x 160, 162 (10th Cir. 2009);
Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.
1996). The mere fact that a prisoner is precluded from filing
a time-barred or second Section 2255 petition does not
establish that the remedy under Section 2255 is inadequate or
ineffective. United States v. Montano, 442
F.App'x 412, 413 (10th Cir. ...