Allen v. Lamanna

Billy Allen, a pro se federal prisoner, appeals a district court judgment denying his habeas corpus petition filed under 28 U.S.C. § 2241. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a). In 1990, a jury convicted Allen in the United States District Court for the Southern District of Alabama for conspiring to possess with intent to distribute cocaine, attempting to import cocaine into the United States, and possessing cocaine with the intent to distribute, violations of 21 U.S.C. §§ 846, 841 and 963. The court sentenced Allen to 260 months of imprisonment. In July 1994, the Eleventh Circuit Court of Appeals affirmed Allen’s convictions and sentence. United States v. Diaz, 26 F.3d 1533 (11th Cir.1994). Between November 1995 and April 2000, it appears that Allen has filed three unsuccessful collateral attacks on his conviction, and has been denied permission to file a fourth, in the Eleventh Circuit. In May 2000, Allen filed a § 2241 habeas corpus petition in the Northern District of Ohio, arguing that: 1) his due process rights were violated because he was never provided with a copy of the charging documents in his native language (Spanish); 2) his due process and equal protection rights have been violated because he is being housed in a facility that does not provide research materials or legal assistance in Spanish; and 3) the conditions of his confinement have denied him access to the court. In July 2000, the district court dismissed the petition because Allen improperly sought to challenge the imposition of his sentence under § 2241, and yet he had failed to show that his remedy under § 2255 was inadequate or ineffective. The court also noted that, to the extent that Allen sought to challenge the conditions of his confinement, he was re [310] quired to file a civil rights action. Allen has filed a timely appeal, essentially reasserting his grounds for relief. He has also filed a motion to proceed in forma pauperis on appeal. Upon review, we conclude that the district court properly dismissed Allen’s § 2241 petition. This court reviews de novo the district court’s order dismissing a habeas corpus petition filed under 28 U.S.C. § 2241. See Charles v. Chandler, 180 F.3d 753, 755 (6th Cir.1999). Under highly exceptional circumstances, a federal prisoner may challenge his conviction and imposition of sentence under § 2241, instead of § 2255, if he is able to establish that his remedy under § 2255 is inadequate or ineffective to test the legality of his detention. See 28 U.S.C. § 2255 (last clause in fifth paragraph); Charles, 180 F.3d at 755-56. It is the prisoner’s burden to prove that his remedy under § 2255 is inadequate or ineffective. See id. at 756. Reviewing recent decisions that have invoked this savings clause, the Sixth Circuit in Charles concluded that the courts have done so essentially to permit prisoners to submit claims of actual innocence that would otherwise have been barred under the AEDPA. See Charles, 180 F.3d at 756-57. Because the petitioner had failed to submit a facially valid claim of actual innocence in Charles, the court withheld judgment as to whether a claim of actual innocence would permit a petitioner to have a second bite of the apple. Id. at 757; see also Pack v. Yusuff, 218 F.3d 448, 453 (5th Cir.2000) (court declines to articulate circumstances when burden would be met because prisoner had a prior opportunity to present claims and he had not presented a claim of actual innocence); United States v. Barrett, 178 F.3d 34, 52-53 (1st Cir.1999) (same), cert. denied, 528 U.S. 1176, 120 S.Ct. 1208, 145 L.Ed.2d 1110 (2000). Allen has not satisfied this burden for two reasons. First, Allen does not cite to an intervening change in the law which reflects that he may be actually innocent of the crimes for which he was convicted. Unlike other prisoners who have obtained review of their claims because they did not have a prior opportunity to present their claims on appeal or in a prior § 2255 motion to vacate, see In re Davenport, 147 F.3d 605, 609, 611 (7th Cir.1998); Triestman v. United States, 124 F.3d 361, 363, 378-80 (2d Cir.1997); In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.1997), Allen has had multiple opportunities to challenge his convictions and sentence on his asserted grounds on appeal and in his prior § 2255 motions to vacate. In addition, the district court also properly dismissed Allen’s claims because he simply did not assert a claim of actual innocence. See Charles, 180 F.3d at 757 (invalid guilty plea and ineffective assistance of counsel claims are not claims of actual innocence). Second, Allen’s remedy under § 2255 is not rendered deficient for any other reason under the circumstances of. this case. As - the court explained in Charles, the remedy under § 2255 is not rendered inadequate or ineffective simply because a petitioner has been denied relief under § 2255, because the petitioner has been denied permission to file a second or successive motion to vacate, or because the petitioner has allowed the one-year statute of limitations to expire. Charles, 180 F.3d at 756-58; accord United States v. Lurie, 207 F.3d 1075, 1077-78 (8th Cir.2000). The remedy afforded under § 2241 is not an additional, alternative or supplemental remedy to that prescribed under § 2255. See Charles, 180 F.3d at 758. [311] Finally, contrary to Allen’s argument on appeal, a § 2241 habeas petition is not the appropriate vehicle for challenging the conditions of his confinement. Here, Allen essentially argued that his convictions and sentence are improper because he was never provided a copy of the charging documents in Spanish, and because he has been denied access to the courts to challenge his convictions and sentence because he does not have access to Spanish research materials or access to legal assistance in Spanish. These type of claims may not be brought under 28 U.S.C. § 2241, which is reserved for challenges to the execution of a sentence, such as the computation of parole or sentence credits, and may not be used to challenge the validity of a conviction or the conditions of confinement. See Cohen v. United States, 593 F.2d 766, 770-71 (6th Cir.1979). Accordingly, we grant the motion to proceed in forma pauperis for the limited purpose of this review and affirm the district court’s judgment. Rule 34(j)(2)(C), Rules of the Sixth Circuit.