Opinion
Civil No. 7:19-cv-00022-GFVT
03-04-2019
JOE WALLACE PEEPLES, III, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
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Federal inmate Joe Wallace Peeples, III has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. [R. 1] This matter is before the Court to conduct the initial screening of the petition pursuant to 28 U.S.C. § 2243. Alexander v. Northern Bureau of Prisons, 419 F. App'x 544, 545 (6th Cir. 2011). The Court affords Peeples' petition a liberal construction because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Franklin v. Rose, 765 F.2d 82, 84-85 (6th Cir. 1985).
Peeples did not pay the $5.00 filing fee required by 28 U.S.C. § 1914 or file a motion to proceed in forma pauperis. Peeples must pay the required fee within twenty-one (21) days.
While on supervised release from federal prison sentences imposed for robbing banks in Ohio and Colorado, see United States v. Peeples, No. 1:10-CR-602-JLK-1 (D. Colo. 2010) and United States v. Peeples, No. 1: 12-CR-505-PAG-1 (N.D. Ohio 2012), in January 2017 Peeples robbed yet another bank in Rochester, New York of over $100,000.00. Peeples was immediately apprehended, and federal charges were filed shortly thereafter. Peeples represented himself during the federal prosecution and filed several pretrial motions, one of which contended that a magistrate judge "did not sign the jurat on Agent Fleitman's affidavit," allegedly rendering the criminal complaint against him invalid. In a January 2018 Order, the trial court rejected this contention as factually and legally baseless. Following a five-day trial, a jury found Peeples guilty on all three counts of the indictment. In July 2018, the trial court sentenced Peeples to a combined term of 240 months imprisonment. United States v. Peeples, No. 6:17-CR-6032-FPG-JWF (W.D.N.Y. 2017). Peeples filed a notice of appeal, and as of this writing, his appeal remains pending before the United States Court of Appeals for the Second Circuit. Peeples v. United States, No. 18-2309 (2d Cir. 2018).
Documents attached to the petition are from United States v. Peeples, No. 6:17-mj-502 (W.D.N.Y. 2017), see [R. 1-1 at Page ID #9-11], and United States v. Peeples, No. 6:17-CR-6032-FPG-JWF (W.D.N.Y. 2017), see [R. 1-1 at Page ID #12-19]. These are the same case: the two proceedings were merged on February 24, 2017.
In separate proceedings Peeples was also sentenced to an additional 24 months imprisonment for violating the terms of his supervised release for his two prior bank robberies. United States v. Peeples, No. 6: 17-CR-6009-FPG (W.D.N.Y. 2017); United States v. Peeples, No. 6: 17-CR-6010-FPG (W.D.N.Y. 2017).
In his petition Peeples reiterates the same claim asserted and rejected by the trial court: that his conviction is void because the "Affidavit in Support of Criminal Case" filed in his criminal proceedings was not properly signed under oath by the magistrate judge. [R. 1] The Court does not reach the merits of this argument because Peeples' claim is not of the kind that may be pursued in a petition filed pursuant to 28 U.S.C. § 2241. A federal prisoner must present a challenge to the legality of his federal conviction or sentence by filing a motion for post-conviction relief under 28 U.S.C. § 2255 in the court that convicted and sentenced him. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 2003). A habeas corpus petition pursuant to 28 U.S.C. § 2241 may generally not be used for this purpose because it does not function as an additional or alternative remedy to the one available under § 2255. Hernandez v. Lamanna, 16 F. App'x 317, 320 (6th Cir. 2001).
As a preliminary matter, it is too early for Peeples to seek relief under § 2255, let alone § 2241, because his direct appeal is still pending. Smith v. United States, 89 F.3d 835 (6th Cir. 1996) (unpublished disposition) (noting that the "well established general rule is that, absent extraordinary circumstances, the district court should not consider § 2255 motions while a direct appeal is pending.") (quoting United States v. Robinson, 8 F.3d 398, 405 (7th Cir. 1993)). Peeples must complete the appellate process before seeking relief via § 2255, a step he must take before he may make even a colorable argument for the availability of a remedy under § 2241. Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999); White v. Grondolsky, No. 6: 06-309-DCR, 2006 WL 2385358, at *3 (E.D. Ky. Aug. 17, 2006).
Even then, Peeples claims ordinary trial error, a claim that cannot be pursued under § 2241 because the remedies afforded by direct appeal and motion under § 2255 are not "inadequate and ineffective" to assert it. Perez-Ortiz, 2018 WL 5734583, at *2 (6th Cir. July 6, 2018) (noting that relief under § 2241 is unavailable where "the grounds for relief raised in the petition were merely reassertions of issues that Perez-Ortiz had already unsuccessfully raised in his § 2255 motion or were claims of trial error that should have been raised on direct appeal or in his § 2255 motion."); Vassell v. Perez, 53 F. App'x 348 (6th Cir. 2002); Jameson v. Samuels, 555 F. App'x 743, 746 (10th Cir. 2014); Donnell v. DeChristoforo, 416 U.S. 637 (1974).
Accordingly, IT IS ORDERED that:
1. Joe Peeples' petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1] is DENIED.
2. This action is DISMISSED and STRICKEN from the Court's docket.
This 4th day of March, 2019.
/s/
Gregory F. Van Tatenhove
United States District Judge