Mark Anderson v. Karen Hogsten

Filing

Per Curiam OPINION filed: AFFIRMED; granting motion to proceed ifp [4570017-2] filed by Mark Anderson, decision not for publication pursuant to local rule 206. Boyce F. Martin , Jr., Circuit Judge; Helene N. White, Circuit Judge and Peter C. Economus, U.S. District Judge for the Northern District of Ohio, sitting by designation.

Case: 12-5173

Document: 006111477965

Filed: 10/26/2012

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1111n.06

FILED

No. 12-5173

Oct 26, 2012

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MARK ANDERSON,
Petitioner-Appellant,
v.
KAREN HOGSTEN,
Respondent-Appellee.

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DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
KENTUCKY

Before: MARTIN and WHITE, Circuit Judges; ECONOMUS, District Judge.*

PER CURIAM. Mark Anderson, a pro se federal prisoner, appeals a district court judgment
denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241.
A jury found Anderson guilty of conspiracy to distribute cocaine in violation of 21 U.S.C.
§ 846 and of possession with the intent to distribute cocaine in violation of 21 U.S.C. § 841. He was
sentenced to 360 months of imprisonment, followed by ten years of supervised release. We affirmed
Anderson’s convictions on appeal. United States v. Simpson, Nos. 97-2305/2307/2316, 98-1050,
1999 WL 777348, at *1 (6th Cir. Sept. 21, 1999).
Anderson filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, which
ultimately proved to be unsuccessful. Anderson filed two petitions for a writ of habeas corpus
pursuant to section 2241. Both petitions were denied. He appealed the denial of one of those

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The Honorable Peter C. Economus, United States Senior District Judge for the Northern
District of Ohio, sitting by designation.

Case: 12-5173

Document: 006111477965

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No. 12-5173
-2petitions, and we affirmed the dismissal. Anderson v. Grondolsky, No. 06-5509 (6th Cir. Mar. 13,
2007).
In 2008, Anderson filed a motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). The
district court denied the motion, and we affirmed the denial. United States v. Anderson, No. 10-1127
(6th Cir. May 23, 2011).
Anderson has now filed this section 2241 habeas corpus petition, his third, challenging his
sentence. Anderson argued that his “indictment fail[ed] to state the necessary amount of controlled
substance, or type, however, he was subject to a statutory maximum of life imprisonment, although
his proper statutory maximum was twenty years [of] imprisonment.” The district court denied
Anderson’s petition. Anderson appeals the district court’s judgment and requests leave to proceed
in forma pauperis.
We review de novo a district court judgment denying a section 2241 habeas corpus petition.
Wooten v. Cauley, 677 F.3d 303, 306 (6th Cir. 2012); Charles v. Chandler, 180 F.3d 753, 755 (6th
Cir. 1999). When a federal prisoner intends to challenge the execution of his sentence, he must file
a section 2241 petition for habeas corpus relief. United States v. Peterman, 249 F.3d 458, 461 (6th
Cir. 2001); Charles, 180 F.3d at 755–56. But when a federal prisoner intends to challenge the
imposition of his sentence, he must file a section 2255 motion to vacate his sentence. Charles, 180
F.3d at 755-56.
Anderson challenges the imposition of his sentence, not the manner in which his sentence
is being served. Thus, section 2255, not section 2241, is the proper mechanism by which Anderson
should proceed. See Peterman, 249 F.3d at 461; Charles, 180 F.3d at 755–56. The “savings clause”
of section 2255 may entitle Anderson to a review of his claim under section 2241 if he is able to
establish that section 2255 “is inadequate or ineffective to test the legality of his detention.” See 28
U.S.C. § 2255(e). The burden is upon Anderson to prove “that his remedy under § 2255 is
inadequate or ineffective.” See Charles, 180 F.3d at 756.

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No. 12-5173
-3Anderson has not shown that his remedy under section 2255 is inadequate or ineffective.
“[T]he § 2255 remedy is not considered inadequate or ineffective simply because § 2255 relief has
already been denied, or because the petitioner is procedurally barred from pursuing relief under
§ 2255, or because the petitioner has been denied permission to file a second or successive motion
to vacate.” Id. at 756 (citations omitted). “The remedy afforded under § 2241 is not an additional,
alternative or supplemental remedy to that prescribed under § 2255.” Id. at 758.
The section 2255 remedy has been held inadequate or ineffective only where a petitioner has
claimed “actual innocence” of his criminal conviction due to a change in the law. Wooten, 677 F.3d
at 307; Peterman, 249 F.3d at 461–62. Anderson has neither asserted that he is actually innocent
of his offenses, nor cited to an intervening change in the law that establishes his innocence.
The motion to proceed in forma pauperis is granted and the district court’s judgment is
affirmed.