United States District Court, W.D. North Carolina, Charlotte Division
Cogburn, Jr. United States District Judge
MATTER is before the Court on Petitioner's
Petition for Writ of Habeas Corpus, filed pursuant to 28
U.S.C. § 2241. [Doc. 1].
August 22, 2018, Petitioner was charged in a Second
Superseding Indictment with one count of conspiracy to commit
Hobbs Act robbery in violation of 18 U.S.C. § 1951(a)
(Count One); aiding and abetting Hobbs Act robbery in
violation of 18 U.S.C. §§ 1951(a) and 2 (Count
Two); one count of using, carrying, and brandishing a firearm
in furtherance of a crime of violence, that is aiding and
abetting Hobbs Act robbery, in violation of 18 U.S.C. §
924(c) (Count Three); one count of possession with intent to
distribute a controlled substance analogue in violation of 21
U.S.C. § 841(a)(1) (Count Four); one count of possession
of a firearm in furtherance of a drug trafficking crime, that
is possession with intent to distribute a controlled
substance analogue, in violation of 18 U.S.C. § 924(c)
(Count Five); two counts of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1) (Counts
Six and Nine); one count of Hobbs Act robbery in violation of
18 U.S.C. § 1951 (Count Seven); and one count of using,
possessing, and discharging a firearm in furtherance of a
crime of violence, that is Hobbs Act robbery, in violation of
18 U.S.C. § 924(c) (Count Eight). [Criminal No.
3:17-cr-00347-MOC-DSK (“CR”), Doc. 23: Second
Superseding Bill of Indictment].
February 5, 2019, while Petitioner was awaiting trial,
Petitioner filed a petition for writ of habeas corpus.
Petitioner sought release under a habeas corpus
theory based on what Petitioner contended was a defect in
state process for Petitioner's arrest. [CR Doc. 37]. This
Court denied this petition and held as follows:
[Petitioner] is not before this federal court on the warrants
issued by the State of North Carolina. Rather [Petitioner] is
before the Court on an Arrest Warrant [CR Doc. 2] properly
issued by the Clerk of this Court and a Writ of Habeas Corpus
Ad Prosequendum [CR Doc. 4] which was properly
applied for and issued by a judge of this court. Even if it
were assumed that defendant was illegally arrested by state
authorities, “[a]n illegal arrest, without more, is
neither a bar to subsequent prosecution nor a defense to a
valid conviction.” United States v.
Pineda-Chinchilla, 712 F.2d 942, 943 (5th Cir. 1983)
(per curiam) (citations omitted). Thus, it matters
not whether the State of North Carolina crossed all the
T's and dotted all the I's in procuring arrest
warrant(s) on any underlying state charges. What is important
here is that defendant was indicted in this federal court
upon a facially valid charging instrument; that a valid
warrant for his arrest was issued by the Clerk of this Court;
and that a judge of this case caused a Writ to be issued
compelling the State of North Carolina to bring defendant to
this court for prosecution on those federal charges.
[CR Doc. 38 at 1-2].
proceeding pro se, filed several other motions before the
trial in this matter, including a “Motion to Quash
Arrest Warrants” [CR Doc. 42], again contesting the
legality of the arrest warrants in the underlying state
proceedings and seeking that all charges against him in the
federal proceedings be dismissed. The Court denied this
motion for the reasons stated in that Order. [CR Doc. 53]. On
May 13, 2019, Petitioner moved to suppress “any and all
items, evidence, contraband[, ] fruits, statements and
documents … that were seized or made as a result of
the lawful arrest of [Petitioner].” [CR Doc. 62].
Hearing on Petitioner's motion to suppress was held on
July 10, 2019. The Court denied Petitioner's motion to
suppress [Doc. 85] and the trial in this matter began on July
15, 2019. The Court dismissed Count Five after the close of
evidence. The jury found Petitioner guilty on Counts One,
Two, Three, Four, and Six and not guilty on Counts Seven,
Eight, and Nine. [CR Doc. 89].
26, 2019, Petitioner filed a pro see motion for new trial [CR
Doc. 92], which the Court denied [CR Doc. 94]. On October 23,
2019, Petitioner again moved for a new trial. [Doc. 105]. The
Court also denied this motion. [CR Doc. 111]. On November 19,
2019, Petitioner moved the Court to reconsider its denial of
Petitioner's motion for a new trial. [CR Doc. 114]. The
Court has calendared this motion to reconsider for hearing on
January 15, 2020. Judgment on Petitioner's conviction has
not been entered and Petitioner has not been sentenced.
Petitioner remains in the physical custody of the Mecklenburg
December 6, 2019, Petitioner filed the instant Petition for a
Writ of Habeas Corpus under 28 U.S.C. § 2241 seeking
immediate release from federal custody or a new trial
conducted without the use of “unlawfully obtained
evidence.” [Doc. 1 at 7-8]
petition for a writ of habeas corpus under 28 U.S.C. §
2241 must attack the way a sentence is executed. Petitions
challenging a federal conviction or sentence, on the other
hand, are properly construed as motions pursuant to §
2255. A federal prisoner seeking to challenge a federal
conviction or sentence may seek relief pursuant to 28 U.S.C.
§ 2241, however, when a petition pursuant to § 2255
is “inadequate or ineffective to test the legality of
his detention.” 28 U.S.C. § 2255; In re
Vial, 115 F.3d 1192, 1194 (4th Cir. 1997). In the
instant case, relief under § 2241 is not available, as a
petition pursuant to § 2255 is not “inadequate or
ineffective” to test the legality of Petitioner's
detention as that term is defined. Rather, any action
Petitioner may ultimately bring on direct appeal or under
§ 2255 is not yet ripe.
as noted, the Court has not yet entered judgment on
Petitioner's conviction and Petitioner has not been
sentenced. On October 23, 2019, Petitioner moved for a new
trial. [CR Doc. 105]. Petitioner's motion to reconsider
the denial of a new trial remains pending, with a hearing on
that motion set for January 15, 2020. There has also, of
course, been no appeal of Petitioner's conviction or
sentence. Plaintiff is, therefore, not entitled to bring a
Section 2241 petition.
a habeas writ is not a substitute for direct review of
Petitioner's conviction in any event. U.S. v.
Martinez, 139 F.3d 412, 415 (4th Cir. 1998). The issue
Plaintiff presents in his ...