Hayes v. Sepanek, No. 0:2013cv00104 - Document 3 (E.D. Ky. 2013)

Court Description: MEMORANDUM OPINION & ORDER; 1) Hayes petition for habeas corpus is denied 2) court will enter appropriate judgment 3) Matter is stricken from active docket. Signed by Judge Henry R. Wilhoit, Jr on 10/16/13.(SMT)cc: COR, Hayes via USMail Modified on 10/16/2013 to state mailed to FMC Lex (SMT).

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT ASHLAND ROBERT ANTHONY HAYES, a/kJa/ Robert Hayes, ) ) ) ) ) ) ) ) ) Petitioner, V. MICHAEL SEPANEK, Warden, No. l3-CV-104-HRW MEMORANDUM OPINION AND ORDER Respondent. ** ** ** ** ** Robert Anthony Hayes has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his federal sentence. [D. E. No.1] Hayes has paid the $5.00 filing fee. [Id.] The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F. App'x 544, 545 (6th Cir. 2011). The Court must deny the petition "if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 ofthe Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions under Rule I(b)). The Court evaluates Hayes' petition under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89,94 (2007); Burton v. Jones, 321 F.3d 569,573 (6th Cir. 2003). At this stage, the Court accepts Hayes' factual allegations as true, and construes his legal claims in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). Having reviewed Hayes' § 2241 petition, the Court must deny it as an abuse of the writ. BACKGROUND In 2000, Hayes pleaded guilty to engaging in a continuing criminal enterprise in violation of21 U.S.C. § 848; conspiracy to possess with intent to distribute cocaine and marijuana in violation of21 U.S.C. § 846; and money laundering in violation of 18 U.S.C. §§ 1956 and 1957. UnitedStatesv. Hayes, No.3: 99-CR26-01-S (W.D. Ky. 1999) The district court determined that based on his prior state felonies, Hayes was a career offender under U. S. S. G. § 4B1.1, and sentenced Hayes to a cumulative 235 -month ( 19-year) prison term. On direct appeal, the Sixth Circuit rej ected Hayes' challenges to both his sentence and the validity of his guilty plea. United States v. Hayes, 9 F. App'x 365,366 (6th Cir. 2001). On March 30, 2011, Hayes filed a prior § 2241 petition challenging his enhanced sentence. See Hayes v. Holland, No. 0:II-CV-33-HRW (E.D. Ky. 2011) [D. E. No.2, therein] ("the First § 2241 Petition") In the First § 2241 Petition, Hayes argued that (1) pursuant to Begay v. United States, 553 U.S. 137 (2008),the district court which sentenced him should not have counted his prior reckless homicide conviction as a "crime of violence," and (2) he was actually innocent of his violent felony status. 1 On May 4,2011, the Court denied the First § 2241 Petition, explaining therein that a prisoner could use § 2241 to challenge only his underlying conviction, not some aspect of his sentence, and that because Hayes was relying on Begay to challenge the enhancement of his federal sentence, he could not assert such a claim in a § 2241 petition. [D. E. No.4, pp. 4-5, therein] On appeal, the Sixth Circuit affirmed this Court's denial of the First § 2241 Petition. [D. E. No. 11, therein; see Hayes v. Holland, No. 11-5578 (6 th Cir. Aug. 7, 2012)] In his current § 2241 petition, Hayes again alleges that his pnor state conviction for reckless homicide was not a "crime of violence" within the meaning ofU.S.S.G. § 4B 1.2(a)(l) in light of the Supreme Court's decision in Begay and the Sixth Circuit's subsequent and related ruling in Jones v. United States, 698 F .3d 621, 624 (6th Cir. 2012). Hayes again contends that based on Begay, he is "actually innocent of his predicate felony being classified as a violent felony under the U.S.S.G. § 4B 1.2 (a)(2)." [D. E. No.1, p. 4]. DISCUSSION Hayes asserts the same Begay-based challenge to his sentence In this In the First § 2241 Petition, Hayes also argued that because he entered an Alford plea, the sentencing court was prevented from determining the factual predicates necessary to conclude that his prior state convictions qualified as either a "crime ofviolence" or "controlled substance offense." 3 proceeding which he unsuccessfully asserted in the First § 2241 Petition. Therefore, the abuse ofthe writ doctrine precludes consideration ofhis claim in this proceeding. A district court may refuse to entertain a repeat application for the writ by a federal prisoner "if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255." 28 U.S.C. § 2244(a). While principles of claim and issue preclusion do not apply in the habeas context in the same manner as they do to a civil claim, McClesky v. Zant, 499 U.S. 467, 480-81 (1991) ("res judicata does not apply 'to a decision on habeas corpus refusing to discharge the prisoner."'), but see Smith v. Reno, 3 F. App'x 403 (6th Cir. 2001) (applying the claim preclusion doctrine to bar reassertion of claims previously considered and rejected in prior habeas corpus petition filed under § 2241), the abuse ofthe writ doctrine serves a similar role in counseling against considering the merits of the same claim presented in successive habeas corpus petitions. Dietz v. Us. Parole Comm 'n, 260 F. App'x 763, 766 (6th Cir. 2008); Rosales-Garcia v. Holland, 322 F.3d 386, 398-99 n. 11 (6th Cir. 2003). "[W]here a prisoner files a petition or engages III other conduct that 'disentitle[s] him to the reliefhe seeks,' the federal court may dismiss the subsequent petition on the ground that the prisoner has abused the writ." Kuhlmann v. Wilson, 4 477 U.S. 436, 444 n.6 (1985) (internal citations omitted); see also Zayas v. INS, 311 F.3d 248,255 (3d Cir. 2002) (Section 2241 habeas petitions are subject to abuse of the writ doctrine); Allen v. Wilson, 2011 WL 165389, at *2 (E.D. Ky. Jan. 19,2011) (applying the abuse ofthe writ doctrine to bar consideration of the merits of a claim which had been presented in successive habeas corpus petitions). Because Hayes previously and unsuccessfully challenged his sentence under Begay in the First § 2241 Petition, the Court will not address the merits of the same claim which he now presents in this proceeding. The Court will deny Hayes' current § 2241 petition as an abuse of the writ and dismiss this proceeding with prejudice. CONCLUSION Accordingly, IT IS ORDERED that: 1. Robert Anthony Hayes' petition for a writ of habeas corpus [D. E. No. 1] is DENIED. 2. The Court will enter an appropriate judgment. 3. This matter is STRICKEN from the active docket. October 16, 2013. 5

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