UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION DARNELL C. BUTCHER, ) CASE NO. 5:20CV2617 ) Petitioner, ) JUDGE CHRISTOPHER A. BOYKO ) vs. ) ) WARDEN MARK WILLIAMS, ) OPINION AND ORDER ) Respondent. ) CHRISTOPHER A. BOYKO, J: Pro se Petitioner Darnell C. Butcher, a federal prisoner, has filed a Petition for a Writ of Habeas Corpus pursuant to

challenging his criminal conviction in Northern District of Ohio Case No. 5:12-cr-24 (“Criminal Case”). (Doc. No. 1.) The basis for Butcher’s petition is that he is actually innocent of his conviction under

(A)(2). (Id. at 6.) For the reasons that follow, the Petition is dismissed. I. BACKGROUND In the Criminal Case, Butcher was charged with being a felon in possession of a firearm and possession of crack cocaine with intent to distribute. Butcher was convicted by a jury and this Court sentenced him to 240 months of imprisonment. Butcher’s convictions and sentence were affirmed on direct appeal. United States v. Butcher, No. 13-3156 (6th Cir. Oct. 13, 2013). In 2014, Petitioner filed a motion to vacate, correct, or set aside his sentence under

, asserting multiple grounds for relief, including actual innocence. This Court denied his § 2555 motion and the Sixth Circuit subsequently denied him a certificate of appealability. United States v. Butcher, No. 15-3151 (6th Cir. Jan. 1, 2016). Butcher later filed two petitions for habeas relief pursuant to

: NDOH Case No. 5:19-cv-2220 (“First § 2241”) and NDOH Case No. 5:20-cv-541 (“Second § 2241”) . In the First § 2241, Butcher challenged his sentence, claiming that his career offender status is invalid based on the Sixth Circuit’s decision in United States v. Montanez,

(6th Cir.

2006). See First § 2241, Doc. No. 1 at 8. This Court denied the First § 2241, finding that Butcher’s sentence enhancement challenge did not satisfy the very limited circumstances permitted by the Sixth Circuit in Hill v. Masters,

(6th Cir. 2016) to bring such a claim.

Doc. No. 4 at 67. In Butcher’s Second § 2241 petition, he claimed that he is actually innocent of his conviction under

(g) based upon the Supreme Court’s decision in Rehaif v. United States,

(2019) because, in the Criminal Case, the government failed to prove that he knew he possessed a firearm and ammunition and that he knew he was prohibited from possessing a firearm and ammunition. See Second § 2241, Doc. No. 1 at 7. This Court

denied the Second § 2241, finding that Rehaif , the case upon which Butcher relied, does not apply retroactively to cases on collateral review. Id., Doc. No. 3 at 29. In Butcher’s third § 2241 petition now before the Court, he claims that he is actually innocent of his conviction under

(A)(2). Butcher asserts that there was a “fatal variance” in the indictment, and consequently, he was convicted of “an offense other than the one charged in the indictment.” Doc. No. 1 at 12. He also contends that the indictment was duplicitous because it charged him with two different offenses in one count. He asserts that he was charged with possession with intent to distribute a “counterfeit substance,” but the language

in the same count alleged that he possessed with intent to distribute cocaine, which is a 2 “controlled substance.”

. Finally, Butcher claims that this “duplicitous indictment, fatal variance, and constructive amendment” resulted in an “illegal career enhancement.”

. II. DISCUSSION A. Standard of Review

A pro se petitioner’s habeas petition is liberally construed. See Franklin v. Rose,

(6th Cir. 1985). A federal district court must conduct an initial review of habeas corpus petitions. See

; Alexander v. Northern Bureau of Prisons,

(6th Cir. 2011). The Court must summarily dismiss a 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 Habeas Corpus Cases Under Section 2254 (applicable to § 2241 petitions under Rule 1(b)). B. Law and Analysis

Generally, a habeas petition under § 2241 “is appropriate for claims challenging the execution or manner in which [a] sentence is served,” not for claims challenging the validity of a prisoner’s conviction or sentence. United States v. Peterman,

(6th Cir. 2001). Under exceptional circumstances, however, a prisoner may challenge his conviction or sentence under § 2241 pursuant to § 2255(e)’s “savings clause” if he is able to establish that his remedy under § 2255 is inadequate or ineffective to test the legality of his detention. Allen v. Lamanna,

(6th Cir. 2001). But in order to properly invoke § 2255’s savings clause, a petitioner must assert that he is “actually innocent” of the underlying offense by showing that after the petitioner’s conviction became final, the United States Supreme Court issued a

retroactively applicable decision re-interpreting the substantive terms of the criminal statute 3 under which he was convicted in a manner that establishes that his conduct did not violate the statute. See Wooten v. Cauley,

(6th Cir. 2012). Here, Butcher’s Petition fails to cite or rely on any specific Supreme Court decision, unavailable at the time of his conviction, announcing a new, retroactively-applicable rule of

statutory construction demonstrating that his conviction under

(A)(2) is invalid. And to the extent that Butcher attempts to challenge his career offender status, that issue was previously addressed in the First § 2241, and this Court will not revisit the petitioner’s argument in this Petition. Butcher is therefore not entitled to habeas relief from his conviction under

(A)(2) by way of § 2241. III. CONCLUSION Accordingly, the Petition for a Writ of Habeas Corpus pursuant to

is

denied and this action is dismissed pursuant to

and Rule 4 of the Rules Governing Habeas Corpus Cases. Further, the Court certifies, pursuant to

(a)(3), that an appeal from this decision could not be taken in good faith. IT IS SO ORDERED. s/ Christopher A. Boyko CHRISTOPHER A. BOYKO Senior United States District Judge Dated: 3/3/2021

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