Hayes v. Quintana, No. 5:2014cv00023 - Document 5 (E.D. Ky. 2014)

Court Description: MEMORANDUM OPINION AND ORDER: 1) Hayes' 1 Petition for Writ of Habeas Corpus is DENIED. 2) Hayes' 4 "Request for Advancement on the Docket" is DENIED AS MOOT. 3) The Court will enter a judgment contemporaneously with this Order. 4) This matter is STRICKEN from the docket. Signed by Judge Joseph M. Hood on 05/15/2014. (KLB) cc: COR,D,Pro se Pet via US Mail. Modified cc: on 5/15/2014 (KLB).

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON ROBERT HAYES, | | | | | | | | | Petitioner, v. WARDEN FRANCISCO QUINTANA, Respondent. *** *** Civil No. 5: 14-23-JMH MEMORANDUM OPINION AND ORDER *** *** Robert Hayes is an inmate confined at the Federal Medical Center in Lexington, Kentucky. Proceeding without counsel, Hayes has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1] and paid the requisite filing fee. [R. 3] The Court petitions. conducts an initial review of habeas corpus 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 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule 1(b)). The Court evaluates Hayes s 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 the petitioner s factual allegations as true, and his legal claims are liberally construed in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). Hayes alleges that in 1991 he was convicted of reckless homicide by a jury sitting in Jefferson County, Kentucky. years later, Hayes pled guilty to engaging in a Nine 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. United States v. Hayes, No.3: 99-CR26-01-S The (W.D. Ky. 1999). district court sentenced Hayes to a cumulative 235-month term of incarceration, based in part upon application of the career offender enhancement found in U.S.S.G. § 4B1.1 in light of, amongst other things, his prior state conviction for reckless homicide. The Sixth Circuit affirmed on direct appeal over Hayes s objections to both the validity of his guilty plea and his sentence. United States v. Hayes, 9 F. App x 365,366 (6th Cir. 2001). In his petition, Hayes contends that his 1991 Kentucky conviction for reckless homicide was not a proper predicate for application of the career offender enhancement under Begay v. United States, 553 U.S. 137 (2008), particularly in light of the Sixth Circuit s decision in Jones v. United States, 689 F.3d 621 (6th Cir. 2012). Hayes has [R. 1-1, pp. 2-4] made this times without success. petition Begay. to challenging identical claim twice before, both In March 2011, Hayes filed a § 2241 the enhancement of his sentence under This Court rejected that claim, noting that a challenge his sentence, as opposed to his conviction, was not cognizable under § 2241 under the circumstances presented, a conclusion the Sixth Circuit affirmed on direct appeal. Hayes v. Holland, No. 0:11-CV-33-HRW (E.D. Ky. 2011), aff d, No. 115578 (6th Cir. Aug. 7, 2012). Undeterred, Hayes filed a functionally identical petition in July 2013, again asserting a claim for relief under Begay, and noting the Sixth Circuit s decision in Jones that under Section 2255. Begay may provide grounds for relief Jones, 689 F.3d at 624. Because Hayes had again sought relief under Section 2241 instead of applying for relief under Section 2255 in the sentencing court, the Court denied his petition as an abuse of the writ. No. 0:13-CV-104-HRW (E.D. Ky. 2013). that decision, but filed his Hayes v. Sepanek, Hayes took no appeal from petition in this action three months later raising the same claims. The here. Court concludes that the same outcome is warranted 28 U.S.C. § 2244(a) bars the successive presentment of the same claims. McClesky v. Zant, 499 U.S. 467, 483-84 (1991); Thunder v. U.S. Parole Com n., 165 F. App x 666, 668 (10th Cir. 2006); Moses v. United States, No. 95-5472, 1996 WL 132157, at *1 (6th Cir. 1996) ( The merits of petitioner s claims previously decided need not be relitigated pursuant to 28 U.S.C. § 2244 where, served. ). as here, the ends of justice would not be In addition, a district court may apply the abuse of the writ doctrine to refuse to consider claims which could or should have been asserted in a prior habeas proceeding. McClesky, 499 U.S. at 480-84; Schlup v. Delo, 513 U.S. 298, 318 n. 34 (1995) ( An abusive petition occurs where a prisoner files a petition raising grounds that were available but not relied upon in a prior petition, or engages in other conduct that disentitle[s] him to the relief he seeks. ); see also Dunne v. Zuercher, No. 7:10-71-ART (E.D. Ky. 2010), aff d, No. 12-5066 (6th Cir. 2012). Because Hayes s claims have previously been rejected on more than one occasion, the Court declines to reach them on the merits, and will deny his petition as an abuse of the writ. Accordingly, IT IS ORDERED that: 1. Hayes s petition for a writ of habeas corpus [R. 1] is DENIED. 2. Hayes s Request for Advancement on the Docket [R. 4] is DENIED AS MOOT. 3. The Court will enter a judgment contemporaneously with this order. 4. This matter is STRICKEN from the docket. This the 15th day of May, 2014.

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