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Atkins v. Stancil

United States District Court, W.D. Louisiana, Alexandria Division

February 20, 2018

EUGENE ATKINS #12102-040, Petitioner
v.
M. STANCIL, Respondent

          JUDGE DEE D. DRELL

          REPORT AND RECOMMENDATION

          JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE

         Before the Court is a petition for writ of habeas corpus (28 U.S.C. § 2241) filed by pro se Petitioner Eugene Atkins (“Atkins”) (#12102-040). Atkins is an inmate in the custody of the Federal Bureau of Prisons, incarcerated at the United States Penitentiary in Pollock, Louisiana. Atkins challenges the legality of his conviction and sentence imposed in the United States District Court for the Western District of Michigan.

         I. Background

         Atkins was convicted of possession of heroin with the intent to distribute; distributing heroin that resulted in “death from the use of the heroin, ” in violation of 21 U.S.C. § 841(b)(1)(C); conspiracy to distribute heroin involving 100 grams or more; and two counts of distribution of heroin to a person under the age of 21. See United States v. Atkins, 289 Fed.Appx. 872, 873 (6th Cir. 2008). The victim was a 17-year-old drug addict who injected heroin supplied by Atkins and died the following morning. See Atkins, 289 Fed.Appx. at 873. Atkins was sentenced to life imprisonment on the first count (distribution resulting in death) and third count (conspiracy to distribute heroin) and to 360 months of imprisonment on the other three counts. Atkins, 289 Fed.Appx. at 875. Atkins's conviction and sentence were affirmed on appeal. Id.

         Atkins filed a motion to vacate under 28 U.S.C. § 2255, asserting: (1) ineffective assistance of trial and appellate counsel for not challenging supplemental jury instructions; (2) actual innocence because the evidence contradicts the conclusion that Atkins could have been the one who sold the drugs; and (3) actual innocence because the alleged co-conspirator was not convicted. See Atkins v. United States, 2010 WL 4977039 at *1 (W.D. Mich., Dec. 2, 2010). The district court denied Atkins's § 2255 motion, finding that: (1) trial and appellate counsel were not ineffective for not challenging the supplemental jury instructions; (2) evidence from cell phone towers does not actually prove that Atkins was innocent; (3) Atkins is not actually innocent based on the government's failure to charge or convict his alleged co-conspirator; and (4) trial counsel was not ineffective. Id. at *2-9. The court also denied petitioner a certificate of appealability. Id. at *10.

         Atkins sought permission to file a second or successive motion to vacate in the Sixth Circuit Court of Appeals, relying on Burrage v. United States, 134 S.Ct. 881, 892 (2014). In denying the motion, the Sixth Circuit found that Burrage was “a case involving statutory interpretation, ” and “did not establish a new rule of constitutional law that the Supreme Court has made retroactive.” (Case No. 14-2038, 6th Cir., Doc. 41).

         Atkins filed a § 2241 petition in the Northern District of West Virginia, contending he was actually innocent of the charge of Distribution of Heroin Resulting in Serious Bodily Injury and Death, and of the life sentence penalty enhancement under § 841(b)(1)(C). He also claimed the Burrage decision was applicable to his case. See Atkins v. O'Brien, 148 F.Supp.3d 547, 550 (N.D. W.Va. 2015), aff'd, 647 Fed.Appx. 254 (4th Cir. 2016). Specifically, Atkins argued that “Burrage renders his conviction ineffective because the heroin that he distributed was not ‘an independently sufficient cause of death.'” Id. at 551. Atkins argued that “another addict, who was with the victim during the night that he died, should have more carefully attended to McKinney after he injected heroin supplied by petitioner.” Id. Finally, Atkins claimed that if not for the other addict's purported “gross negligence, [the victim] would not have died.” Id. The district court found that Atkins's reliance on Burrage was fundamentally misplaced. Id.

         Atkins again sought permission to file a second or successive motion to vacate in the Sixth Circuit Court of Appeals, citing Burrage. (Case No. 16-1887, 6th Cir., Doc. 10-2). The appellate court denied the motion because “Burrage, a case involving statutory interpretation, did not establish a new rule of constitutional law and has not been made retroactive by the Supreme Court.” (Case No. 16-1887, 6th Cir., Doc. 10-2, p. 2). The court went on to find that “even if Burrage constituted a new rule of constitutional law and was made retroactive by the Supreme Court, it would not affect this case because the victim would not have died without the heroin that Atkins distributed to him. See United State v. Volkman, 797 F.3d 377, 392 (6th Cir. 2015).” (Case No. 16-1887, 6th Cir., Doc. 10-2, p. 2).

         Atkins then filed a habeas petition in this Court, again seeking to proceed under the savings clause based on Burrage.

         II. Law and Analysis

         A federal prisoner may challenge his sentence under either 28 U.S.C. §§ 2241 or 2255. Though closely related, these two provisions are “distinct mechanisms for seeking post-conviction relief.” Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). A § 2241 petition may be filed by a prisoner challenging the manner in which his sentence is being executed or the prison authorities' determination of its duration. See Reyes- Requena v. U.S., 243 F.3d 893, 900-01 (5th Cir. 2001); Pack, 218 F.3d at 451. The proper venue for such a challenge is the district in which the prisoner is incarcerated. See Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000) (citing Pack, 218 F.3d at 451).

         In contrast, a § 2255 motion should be used to vacate, set aside, or correct a sentence based on errors that occurred at or prior to sentencing. See Cox v. Warden, Federal Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990) (citing United States v. Flores, 616 F.2d 840, 842 (5th Cir. 1980)). A § 2255 motion “provides the primary means of collateral attack on a federal sentence” and must be filed in the court that issued the contested sentence. See Cox, 911 F.2d at 1113.

         Atkins seeks to proceed with his challenge under the savings clause of § 2255(e), which provides a limited exception to the rule that a § 2241 petition may not be used to challenge the validity of a federal sentence and conviction. See Pack, 218 F.3d at 452. The savings clause allows a prisoner to rely on § 2241 if the remedy available under § 2255 would be “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). The burden of affirmatively proving that the § 2255 remedy is inadequate is squarely on the petitioner. See McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979). A prisoner may not utilize § 2241 merely to avoid procedural hurdles presented under § 2255, such as the one-year statute of ...


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