Robert Hayes v. J.C. Holland ( 2012 )


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  •                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 12a0850n.06
    No. 11-5578
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    FILED
    ROBERT HAYES,                                       )
    )
    Aug 07, 2012
    Petitioner-Appellant,                        )                     LEONARD GREEN, Clerk
    )
    v.                                                  )       ON APPEAL FROM THE UNITED
    )       STATES DISTRICT COURT FOR
    J. C. HOLLAND, Warden,                              )       THE EASTERN DISTRICT OF
    )       KENTUCKY
    Respondent-Appellee.                         )
    Before: MARTIN and WHITE, Circuit Judges; ECONOMUS, District Judge.*
    PER CURIAM. Robert Hayes, a federal prisoner proceeding pro se, appeals the district
    court’s judgment denying his petition for a writ of habeas corpus filed under 
    28 U.S.C. § 2241
    .
    Hayes has moved for leave to proceed in forma pauperis.
    In 2000, Hayes pleaded guilty to engaging in a continuing criminal enterprise in violation of
    
    21 U.S.C. § 848
    ; conspiracy to possess with intent to distribute cocaine and marijuana in violation
    of 
    21 U.S.C. § 846
    ; and money laundering in violation of 
    18 U.S.C. §§ 1956
     and 1957. The district
    court sentenced Hayes as a career offender under USSG § 4B1.1 to nineteen years and seven months
    of imprisonment. On direct appeal, we affirmed the district court’s judgment. United States v.
    Hayes, 9 F. App’x 365, 367 (6th Cir. 2001). Hayes then filed a motion to vacate his sentence
    pursuant to 
    28 U.S.C. § 2255
    , which the district court denied.
    *
    The Honorable Peter C. Economus, United States Senior District Judge for the Northern
    District of Ohio, sitting by designation.
    No. 11-5578
    -2-
    Nearly a decade later, Hayes filed the instant habeas corpus petition under section 2241,
    asserting that he is actually innocent of the career offender enhancement. Hayes argued that his prior
    state conviction for reckless homicide is not a “crime of violence” within the meaning of USSG
    § 4B1.2(a) in light of the Supreme Court’s decision in Begay v. United States, 
    553 U.S. 137
     (2008).
    Hayes also challenged the district court’s use of prior state convictions based on pleas pursuant to
    North Carolina v. Alford, 
    400 U.S. 25
     (1970), as predicate offenses for career offender status. The
    district court denied Hayes’s habeas corpus petition. This timely appeal followed.
    We review de novo the district court’s judgment denying a habeas corpus petition filed under
    section 2241. Charles v. Chandler, 
    180 F.3d 753
    , 755 (6th Cir. 1999). Generally, a federal prisoner
    must use section 2255 to challenge his conviction or the imposition of his sentence. Section 2241
    is used to challenge the execution or manner in which a sentence is served. 
    Id.
     at 755–56. Hayes
    challenges the imposition of his sentence, not the manner in which his sentence is being served.
    Pursuant to section 2255(e)’s “savings clause,” a federal prisoner may challenge the imposition of
    his sentence under section 2241, rather than section 2255, if he establishes that his remedy under
    section 2255 “is inadequate or ineffective to test the legality of his detention.” 
    28 U.S.C. § 2255
    (e);
    Charles, 
    180 F.3d at 756
    . To date, the savings clause has only been applied to claims of actual
    innocence based upon Supreme Court decisions announcing new rules of statutory construction
    unavailable for attack under section 2255. See Martin v. Perez, 
    319 F.3d 799
    , 804–05 (6th Cir.
    2003); United States v. Peterman, 
    249 F.3d 458
    , 461–62 (6th Cir. 2001).
    Hayes does not assert that he is actually innocent of his federal offenses. Rather, he claims
    actual innocence of the career offender enhancement. The savings clause of section 2255(e) does
    not apply to sentencing claims. See Peterman, 
    249 F.3d at
    461–62.
    Hayes’s motion for leave to proceed in forma pauperis is granted and the district court’s
    judgment is affirmed.