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ORDER- 1 

HONORABLE RONALD B. LEIGHTON 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

AT TACOMA 

UNITED STATES OF AMERICA, 

 Plaintiff, 

 v. 

MICHAEL BOLDS, 

 Defendant. 

CASE NO. CR06-5473RBL 

ORDER 

THIS MATTER comes on before the above-entitled court upon Defendant’s 

Motion/Petition “Pursuant to 28 U.S.C. § 2241 ‘Actual Innocence.’” [Dkt. #50] Having 

considered the entirety of the records and file herein, the Court finds and rules as follows: 

I. BACKGROUND 

On December 1, 2006, Bolds was sentenced to 100 months custody based on his guilty 

plea to one count of possession with intent to distribute more than 5 grams of cocaine base in 

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii) and one count of possession of cocaine 

with intent to distribute in violation of 21 U.S.C. §841(a)(1) and 841 (b)(1)(C). In the written 
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ORDER- 2 

plea agreement between the parties, Bolds admitted that he possessed 201 gross grams of cocaine 

base (18.1 grams 75% pure) and 255 grams of cocaine (246.5 grams 75% pure). He also 

admitted that the amount of drugs and their packaging were consistent with distribution and not 

with personal use. He filed a Notice of Appeal of the sentence, but subsequently moved to 

voluntarily dismiss the appeal which the Ninth Circuit granted. 

On November 1, 2007, Bolds filed a motion pursuant to Fed. R. Civ. P. 60(b) alleging 

ineffective assistance of counsel. The Court restyled the motion as a motion pursuant to 28 

U.S.C. § 2255.2 During the pending of Bolds’ § 2255 motion, counsel was appointed to consider 

the application of Sentencing Guidelines Amendment 706 to his sentence. After a review, the 

Government and Bolds’ counsel filed a joint motion pursuant to 18 U.S.C. § 3582(c) to reduce 

his sentence. The Court granted the motion and entered an Amended Judgment imposing a new 

sentence of 84 months. The Court thereafter denied Bolds’ § 2255 motion ruling that his counsel 

did not render ineffective assistance. 

Bolds has now filed the instant motion purportedly pursuant to 28 U.S.C. § 2241 arguing 

that the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372, § 2 (Aug 3, 2010) 

applies to him. He believes that because the Act amended the statutory mandatory sentences for 

cocaine base, raising the amount of drugs necessary for the five and ten-year mandatory 

 

1

 The government mistakenly indicates in their Response that Bolds admitted to 

possessing 30 gross grams of cocaine base. The difference in the amount of cocaine base does 

not affect the Court’s decision. 

2

 The Court properly construed the Rule 60(b) motion as a § 2255 motion; however, the 

Court inadvertently did not warn Bolds of the consequences of the re-characterization and did 

not provide him with the opportunity to withdraw the motion as directed by Castro v. United 

States, 570 U.S. 375 (2003). As explained in this Order, this error does not affect the Court’s 

decision on this motion. 
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ORDER- 3 

sentences, he is “actually innocent” of the crime of possession of cocaine based with intent to 

distribute. 

II. DISCUSSION 

Title 28, United States Code, Section 2241 does not provide relief because § 2241 is only 

available in Bolds’ situation if he is barred from proceeding under § 2255 and he is actually 

innocent. See Alaimalo v. United States, 636 F.3d 1092, 1096 (9th Cir. 2011). The Act did not 

make the possession of cocaine base with intent to distribute legal. It only raised from 5 grams 

to 28 grams and from 50 grams to 280 grams the amount of cocaine base required to trigger the 

five and ten-year mandatory statutory sentences provided in 21 U.S.C. § 841(b)(1). Thus, his 

collateral challenge to his conviction is governed by § 2255. Because he filed this motion more 

than one year after his conviction became final and none of the exceptions apply to extend that 

date, his motion is time barred.3

Bolds may be entitled to relief, however, under 18 U.S.C. § 3582(c). The United States 

Sentencing Commission has recently voted to give retroactive effect to its proposed amendment 

to the United States Sentencing Guidelines implementing the Fair Sentencing Act of 2010. 

Unless Congress acts to disapprove the amendment, retroactivity of the amendment becomes 

effective November 1, 2011. Bolds may then file a motion pursuant to 18 U.S.C. § 3582(c) and 

if the amendment has the effect of reducing his guideline range, he may be entitled to be 

resentenced. Until that date, Bolds is not entitled to relief. 

 

3

 Because the Court did not follow the directives of Castro v. United States, 570 U.S. 375 

(2003), the Court will not consider this a second or successive motion under § 2255(h). (See fn. 

2 above.) 
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ORDER- 4 

Bolds’ Motion/Petition “Pursuant to 28 U.S.C. § 2241 ‘Actual Innocence’” [Dkt. #50] is 

DENIED. 

IT IS SO ORDERED.

The Clerk shall send uncertified copies of this order to all counsel of record, and to any 

party appearing pro se. 

Dated this 6th day of July, 2011. 

A

RONALD B. LEIGHTON 

UNITED STATES DISTRICT JUDGE