FOREMAN v. LAPPIN
MEMORANDUM AND OPINION. Signed by Judge Tanya S. Chutkan on 7/13/17. (ms)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BENJAMIN P. FOREMAN,
HARLEY G. LAPPIN, DIRECTOR,
Civil Action No. 17-1278 (TSC)
This matter is before the Court on review of Petitioner’s pro se pleading (“Pet.”) titled
“CONSTITUTIONAL GREAT WRIT OF HABEAS CORPUS PURSUANT TO THE UNITED
STATES CONSTITUTION, ART. 1, § 9, CL. 2.” Petitioner is a federal prisoner serving a 300month prison term imposed by the United States District Court for the Western District of
Michigan on September 7, 2006, on his conviction of possession with intent to distribute cocaine
and cocaine base and possession of a firearm in furtherance of drug trafficking. Pet. at 4. This is
an enhanced sentence: based on Petitioner’s prior criminal history, he is deemed a career
offender who is subject to a longer sentence than otherwise would have been imposed under the
United States Sentencing Guidelines. See id. at 3, 6; see Mem. of Law in Support of Issuance of
Constitutional Writ of Habeas Corpus (“Pet. Mem.”) at 14-16 (asserting that his “25-year
sentence would have been 89-120 months lesser” had he not been designated a career offender).
The two offenses on which the enhanced sentence is based are “Assault With Intent to do
Great Bodily Harm Less Than Murder” and “Delivery/Manufacture Cocaine Less Than 50
Grams.” Pet., Ex. L at 9, 11. Petitioner contends that he is actually innocent of the latter offense
because the Michigan court “dismissed the Delivery conviction.” Pet. at 3; see id. at 6.
Petitioner argues, “there exist[s] no factual basis for [the] Career Offender enhancement,” id. at
6, such that his federal sentence is invalid and his current custody is unlawful, see id. at 3-4, 8.
He demands his immediate release from custody or, alternatively, an evidentiary hearing. Id. at
If there were a remedy available to Petitioner, it would be by motion under 28 U.S.C. §
2255 addressed to the sentencing court. See Ojo v. Immigration & Naturalization Serv., 106
F.3d 680, 683 (5th Cir. 1997) (explaining that the sentencing court is the only court with
jurisdiction to hear a defendant’s complaint regarding errors occurring before or during
sentencing); Day v. Obama, No. 1:15-CV-00671, 2015 WL 2122289, at *2 (D.D.C. May 1,
2015) (concluding that petitioner sentenced by the Eastern District of Virginia cannot pursue
collateral attack on his sentence in the District of Columbia), aff’d sub nom. Day v. Trump, __
F.3d __, __, 2017 WL 2697981, at *4 (D.C. Cir. June 23, 2017).
Section 2255 provides that:
[a] prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground that
the sentence was imposed in violation of the Constitution or laws of
the United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.
28 U.S.C. § 2255(a) (emphasis added). A federal district court may not entertain “[a]n
application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for
relief by motion pursuant to this section . . . if it appears that the applicant has failed to apply for
relief, by motion, to the court which sentenced him, or that such court has denied him relief,
unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of
his detention ” Id. § 2255(e) (emphasis added). Once a § 2255 motion has been adjudicated, any
subsequent motion must be presented to the appropriate court of appeals for permission to
proceed in the sentencing court. 28 U.S.C. § 2244(b)(3)(A).
Petitioner certainly was aware of the process by which to attack his federal conviction
and sentence. See Pet. Mem. at 4-6. He already has sought, and has been denied, relief under §
2255, and the United States Court of Appeals for the Sixth Circuit has not authorized the
Western District of Michigan to entertain a successive § 2255 motion. 1 “The § 2255 remedy is
Petitioner has filed assorted post-conviction actions, none successful, to challenge his conviction and sentence:
His journey began when he pleaded guilty in the Western District of Michigan to possession with intent
to distribute cocaine base, possession with intent to distribute cocaine, and possessing a firearm in
furtherance of a drug trafficking crime under a plea agreement. He was sentenced to concurrent prison
terms totaling 240 months on the drug convictions and a consecutive term of 60 months for the firearm
offense. His appeal to the Sixth Circuit was dismissed because his plea agreement contained a waiver of
his appeal rights. United States v. Foreman, No. 06-2192 (6th Cir. Sept. 6, 2007).
In 2008, the petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255, and that motion was denied by the district court. Foreman v. United States, No. 08-01115 (W.D.
Mich. July 19, 2010). The Sixth Circuit denied a certificate of appealability. Foreman v. United States,
No. 10-2415 (6th Cir. June 3, 2011).
In 2010, the petitioner moved to withdraw his guilty plea on the firearm count. The trial court construed
the motion as a second or successive motion to vacate and transferred the matter to the Sixth Circuit. United
States v. Foreman, No. 06-00030 (W.D. Mich. Aug. 19, 2010). The petitioner appealed, but the Sixth
Circuit dismissed his appeal for want of prosecution. In re Foreman, No. 10-2077 (6th Cir. Oct. 13, 2010).
The petitioner also filed a motion pursuant to Federal Rule of Civil Procedure 59(e) to alter or amend
the trial court's decision denying his motion to vacate sentence, which was denied in part and transferred to
the Sixth Circuit as a second or successive motion to vacate sentence. Foreman v. United States, No. 0801115 (W.D. Mich. Oct. 18, 2010). The Sixth Circuit remanded the case for consideration of all of
Petitioner's claims. In re Foreman, No. 10-2370 (6th Cir. Nov. 1, 2011). On remand, the trial court denied
relief on the remaining claims. Foreman v. United States, No. 08-01115 (W.D. Mich. Aug. 14, 2012). The
Sixth Circuit thereafter denied a certificate of appealability. Foreman v. United States, No. 12-2202 (6th
Cir. March 13, 2013).
The petitioner subsequently filed five more habeas petitions in federal court, all of which summarily
were dismissed. Foreman v. Terris, No. 15-13764 (E.D. Mich. Oct. 29, 2015); Foreman v. Terris, No. 1414925 (E.D. Mich. April 27, 2015); Foreman v. Terris, No. 14-13336 (E.D. Mich. Sept. 17, 2014); Foreman
v. Terris, No. 13-12154 (E.D. Mich. July 12, 2013); Foreman v. Terris, No. 13-10734 (E.D. Mich. March
20, 2013). The Sixth Circuit also denied authorization for the petitioner to proceed on a second or
successive motion to vacate sentence under § 2255. In re Foreman, No. 14-1478 (6th Cir. Oct. 27, 2014).
Foreman v. Terris, No. 16-13578, 2017 WL 67480, at *1-2 (E.D. Mich. Jan. 6, 2017), appeal docketed, No. 17-1326
(6th Cir. Mar. 27, 2017).
not inadequate or ineffective simply because § 2255 relief has already been denied, or because
the [petitioner] has been denied permission to file a second or successive § 2255 motion.” Neal
v. Gonzales, 258 F. App’x 339, 340 (D.C. Cir. 2007) (per curiam) (citing Charles v. Chandler,
180 F.3d 753, 756 (6th Cir. 1999) (collecting cases)).
Petitioner has stated no claim for relief in this court, and his petition for a writ of habeas
corpus will be dismissed. A separate order accompanies this Memorandum Opinion.
DATE: July 13, 2017
TANYA S. CHUTKAN
United States District Judge
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