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United States v. Ivory

United States District Court, D. Kansas

August 1, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ANDRE IVORY, Defendant. Civil Actions Nos. 15-9943-KHV, 16-3245-KHV

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL United States District Judge.

         On 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 petition.

         Factual Background

         On May 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) (Count 11).

         On 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.[1] 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 prison.

         On 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.

         Defendant's 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).

         On July 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).

         On 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.

         On 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 provisions.

         Analysis

         I. Relief Under 28 U.S.C. § 2241

         A 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.

         Here, 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. ...


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