Wells v. Snyder-Norris

Filing 6

MEMORANDUM OPINION & ORDER 1) petition for writ of habeas corpus is DENIED 2) Court will enter an appropriate judgment 3) 2241 habeas proceeding is DISMISSED AND STRICKEN from court's active docket.. Signed by Judge Henry R. Wilhoit, Jr on 5/15/15.(SMT)cc: COR, Wells via USMail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND

TONY WELLS,
Petitioner,

v.
JODIE L. SNYDER-MORRIS,
Warden,
Respondent.

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CivilActionNo.15-CV-17-HRW

MEMORANDUM OPINION
ANDORDER

**** **** **** ****
Tony Wells is an inmate confined by the Bureau of Prisons ("BOP") in the
Federal Correctional Institution ("FCI")-Ashland, located in Ashland, Kentucky.
Wells has filed a prose petition for writ of habeas corpus pursuant to 28 U.S.C. §
2241 [D. E. No. 1], challenging the enhancement of his federal sentence under the
federal sentencing guidelines. Wells has paid the $5.00 filing fee. [D. E. No. 3]
In conducting an initial review of habeas petitions under 28 U.S.C. § 2243,
the Court must deny the relief sought "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 § 2254 Cases in the United States District Courts (applicable to §
2241 petitions pursuant to Rule l(b)). Because Wells is not represented by an
I

attorney, the Court evaluates his petition under a more lenient standard. Erickson

v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir.
2003). Thus, at this stage of the proceedings, the Court accepts Wells's factual
allegations as true and liberally construes his legal claims in his favor.
The Court has reviewed the habeas petition but for the reasons set forth
below, determines that that it cannot grant the relief which Wells seeks, i.e., an
order either transferring this action to federal court in North Carolina, or setting
aside part of his 235-month sentence. The Court will therefore deny Wells' § 2241
petition and dismiss this proceeding.
LITIGATION HISTORY
On April 25, 2005, a federal grand jury in Statesville, North Carolina,
indicted Wells and four co-defendants, charging them with conspiracy to possess
with intent to distribute at least 500 grams of methamphetamine in violation of 21
U.S.C. §§ 841 and 846. United States v. Tony Wells, No. 5:05-CR-32 (W.D.N.C.
2005) [R. 1, therein] ("the 2005 Criminal Case")

On April 27, 2005, the

Government filed a notice under 21 U.S.C. § 851, stating its intention to seek
enhanced penalties based on Wells' October 31, 2001, felony drug conviction (for
possession of marijuana) from Yadkin County, North Carolina. [Id., R. 5, therein]

2

On January, 3, 2006, Wells entered into a plea agreement with the
Government wherein he agreed to plead guilty to the charge of conspiracy to
possess with intent to distribute at least 500 grams of methamphetamine in
violation of21 U.S.C. §§ 841 and 846. [!d., R. 75, therein] On January 18,2006,
Magistrate Judge David Keesler conducted a hearing to accept Wells' guilty plea,
pursuant to Federal Rule of Criminal Procedure 11. See Transcript of Rule 11
Proceedings at 1-26. Based on Wells' answers to the questions, and based on the
representations and answers from his counsel, the Magistrate Judge accepted
Wells' guilty plea, finding that it was knowingly and voluntarily made with an
understanding of the charges, the potential penalties, and the consequences of the
guilty plea. [!d., R. 84, therein] Wells also signed the Entry and Acceptance of
Guilty Plea (Rule 11 Proceeding), which memorialized his oral responses to the
district court's inquiries. [!d., R, 84, therein]
On March 1, 2006, the Grand Jury returned a second indictment against
Wells, this time charging him with attempting "to obstruct, influence and impede
and official proceeding" by sending text message instructions to a prospective
witness, instructing that witness to "stick to the story" and provide false
information regarding the illegal possession of a firearm in furtherance of a drug
trafficking crime by co-defendant Jason Plemmons, all in violation of 18 U.S.C. §

3

1512(c)(2). See United States v. Tony Wells, No. 06-CR-45-RLV-1 (W.D.N.C.
2006) [R. 3, therein] ("the 2006 Criminal Case").
On May 12, 2006, Wells entered into a second plea agreement with the
Government in the 2006 Criminal Case, agreeing to plead guilty to the obstruction
of justice charge.

[Id., R. 15, therein]

That plea agreement contained nearly

identical provisions to the plea agreement in the 2005 Criminal Case, but also
included a provision stipulating that the parties agreed "that the sentence imposed
for [the obstruction of justice] conviction [would] be combined for sentencing
purposes with the sentence (to be) [sic] imposed" in the drug conspiracy case. [Id.,
~

7(a), therein.)
On June 7, 2006, Magistrate Judge Keesler conducted a Rule 11 hearing and

colloquy concerning Well's guilty plea on the obstruction of justice charge in the
2006 Criminal Case. During the hearing, Magistrate Judge Keesler recited the
elements of the obstruction of justice offense together with the maximum penalties
to which Wells would be subject, and Wells affirmed that he understood the charge
against him and the penalties he faced. 1 After asking Wells a final series of
questions concerning the voluntariness of his plea, Magistrate Judge Keesler
accepted Wells' plea, finding that he was pleading guilty knowingly and
1

After Government counsel summarized the terms of the plea agreement, including the waiver of
Wells' right to appeal or collaterally attack his conviction and/or sentence, except on specific
grounds, Wells affirmed that he understood the agreement and the waiver of his right to appeal
or challenge his conviction and/or sentence in a post-conviction proceeding. [!d. at 14]

4

voluntarily, with an understanding of "the charges, potential penalties, and
consequences of his plea." [Jd. at pp. 15-16] When the hearing concluded, Wells
signed an Entry and Acceptance of Guilty Plea, again acknowledging that he was
guilty of the obstruction of justice offense and that he understood the waiver of his
right to appeal set forth in the plea agreement. [Id., R. 16, therein]
On November 6, 2006, the district court sentenced Wells to a 235-month
prison term on Count One in the 2005 Criminal Case [R. 117, therein], and to a
concurrent 235-month sentence on Count One in the 2006 Criminal Case [R. 19,
therein]. 2 Wells filed a timely notice of appeal, arguing that the appellate waiver
provision in the plea agreement was unenforceable and that his sentence was
excessive. The Government responded that Wells had waived his right to appeal
and that because his counsel had conceded that the guidelines were properly
calculated, his sentence was presumptively reasonable.

2

Prior to sentencing, the district court asked Wells if he understood the charges to which he
was pleading guilty, the potential penalties, and the consequences of his guilty plea. See
Transcript of Sentencing at 3. Wells affirmed he was pleading guilty freely and voluntarily, and
the district court accepted his guilty plea. [Id.] Wells asserted no objections to the PSR but
requested a variance below the applicable Guidelines range based on his cooperation with
investigating agents and the fact that he had provided the evidence of methamphetamine
manufacturing when children were present, upon which the six-level enhancement was based.
[Id. at 7-8] Wells' counsel cited several factors in support of a request for a lower sentence, but
conceded that "the guidelines were properly calculated." [Id. at 8-9] The Goverlllllent agreed to
a sentence at the low end of the Guidelines but objected to a variance sentence. [Id. at 9] The
district court ultimately found no reasons justifying a sentence variance.
5

On October 15, 2007, the Fourth Circuit Court of Appeals dismissed the
appeal, noting that Wells was old enough and experienced enough in criminal
procedure to understand the waiver. United States v. Wells, 250 F. App'x 550 (4 111
Cir. 2007) Wells' counsel filed petitions for rehearing and rehearing en bane, but
those petitions were denied on December 18, 2007. See the 2005 Criminal Case
[R. 162; R. 163, therein]; the 2006 Criminal Case [R. 39; R. 40, therein]

On March 15, 2009, Wells filed a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255 alleging a host of ineffective-assistance-of
counsel claims at all stages of the proceedings; prosecutorial misconduct; and
breach of the plea agreement. See the 2005 Criminal case [R. 177, therein]; the
2006 Criminal Case [R. 42, therein]. 3

On March 30, 2011, the district court

entered an Order denying Wells'§ 2255 motion. !d., R. 185, therein, see also Tony
Wells v. United States, No. 3:09-CV-104; Nos. 5:05-CR-32-V; No. 3:06-CR-45-1,

2011 WL 1234709 (W.D.N.C. Mar. 30, 2011)]. The district court rejected Wells'
challenges to his guilty plea and his sentence (i.e., the denial of his request for a
downward departure), explaining that those particular claims were barred because
the Fourth Circuit had previously addressed and rejected them on direct appeal. Id.
at **5-6. The district court carefully examined Wells' Fifth Amendment claim

3

Wells' § 2255 Motion was also docketed as a separate civil proceeding. See Tony Wells v.
United States, No. 3:09-CV-104-RLV (W.D.N.C. 2009).
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alleging prosecutorial misconduct and his numerous Sixth Amendment claims
alleging ineffective assistance of counsel at all stages of the criminal proceeding,
but determined that none of those claims had merit. Id., at *6-13.
CLAIMS ASSERTED IN THE § 2241 PETITION

Wells seeks relief from his 235-month sentence based on the Fourth
Circuit's decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) and
the United State Supreme Court's decision in Carachuri-Rosendo v. Holder, 560
U.S. 563, 130 S. Ct. 2577 (2010).
In Carachuri-Rosendo, the defendant, who was facing deportation, was
convicted of a crime that the State of Texas categorized as a misdemeanor, but his
offense would have been a felony under the Controlled Substances Act (18 U.S.C.
§ 924(c)(2)) because he had a prior conviction. Carachuri-Rosendo, 560 U.S., at
566-67, 130 S.Ct. at 2580-81. The CoUli held that the offense did not constitute an
"aggravated felony" because the state prosecutor had not charged the existence of a
prior conviction and, thus, the defendant was not " ... actually convicted of a crime
that is itself punishable as a felony under federal law." Id., 560 U.S. at 581-82,
130 S.Ct. at 2589. Thus, the Supreme Court held that coUliS must look at the
defendant's actual conviction, rather than the offense for which the defendant

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could have been convicted, for purposes of determining whether the offense is an
aggravated felony under the Immigration and Nationality Act.
In Simmons, the Supreme Court had vacated the Fourth Circuit's prior panel
opinion for consideration in light of its intervening decision in CarachuriRosendo. On remand, the Fourth Circuit concluded that a prior conviction

constituted a valid predicate offense under the Controlled Substances Act if it was
one "punishable by imprisonment for a term exceeding one year" based only upon
the actual conviction, not upon hypothetical aggravating factors. Simmons, 649 F,
3d at 243--44. Wells argues that in light of these subsequently decided cases, the
district court improperly used his 2001 felony drug conviction from Yadkin
County, North Carolina, to enhance his federal sentence six levels under the
federal sentencing guidelines.
Well contends that when his federal sentence was imposed in November
2006, his prior North Carolina drug offense conviction qualified him for a six-level
sentencing enhancement, but that it can no longer serve as a basis for a sentencing
enhancement based on the subsequent decisions in Simmons and CarchuriRosendo.

Wells contends that both Carachuri-Rosendo and Simmons apply

retroactively to his case; that his enhanced sentence is now illegal based on those
cases; and that these cases entitle him to relief from his 235-month sentence.

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Second, Wells contends that the district court, instead of the jury, improperly
determined facts which resulted in the enhancement of his sentence under the
federal sentencing guidelines, in violation of the ruling set forth in Alleyne v.
United States, 133 S. Ct. 2151 (2013). In Alleyne, the Supreme Court held that

"[a]ny fact that, by law, increases the penalty for a crime is an 'element' that must
be submitted to the jury and found beyond a reasonable doubt." Id. at 2155.
Wells contends that Alleyne applies retroactively to his case and affords him relief
from his enhanced sentence.
Third, Wells relies on the Supreme Court's grant/vacate/remand ("GVR")
order in Persaud v. United States, 134 S.Ct. 1023 (2014).

Like Wells, the

defendant in Persaud sought to challenge a sentencing enhancement through a §
2241 petition and the savings clause of§ 2255.
Wells claims thus fall under the Fifth Amendment of the U.S. Constitution,
which guarantees due process of law, and the Sixth Amendment of the U.S.
Constitution, which guarantees a trial by jury in any criminal proceeding. Wells
seeks an order transferring his § 2241 petition to the United States District Court
for the Western District ofNotih Carolina, where he was sentenced. [D. E. No. I,
p. 7] Wells asserts that that the transfer would promote judicial economy because
the Western District of North Carolina " .. .is familiar with the underlying

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conviction and sentencing as well as the circumstances resulting from the decision
announced in Simmons." [Id.] Wells also contends that North Carolina federal
court is a "more convenient forum" for all patties involved. [Id.]
DISCUSSION

The Court will first address, and deny, Wells' request to transfer the venue
of this proceeding to the United States District Court for the Western District of
North Carolina.

If a federal prisoner seeks to challenge issues related to the

manner in which his sentence is being executed, he must file a § 2241 habeas
petition in the district comi having jurisdiction over petitioner's custodian.

Robinson v. Morrison, 27 F. App'x 557 (6th Cir. 2001); In re Gregory, 181 F.3d
713, 714 (6th Cir. 1999) (a petition for a writ of habeas corpus under § 2241 is
confined to the district court having jurisdiction over the petitioner's custodian); In

re Hanserd, 123 F.3d 922, 925 (6th Cir. 1997); United States v. Jalili, 925 F.2d
889, 893-94 (6th Cir. 1991); Cohen v. United States, 593 F.2d 766, 770-71 (6th
Cir. 1979). In this proceeding, Wells does not challenge the BOP's execution of
his sentence; he alleges that his remedy under § 2255 was inadequate and
ineffective to challenge his federal detention.

Wells thus invokes the savings

clause of 28 U.S.C. § 2255, by way of a habeas petition filed under 28 U.S.C. §
2241.

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Wells was confined in FCI-Ashland when he filed this action on March 16,
2015, and according to the BOP's website, he remains confined in that facility. 4
Wells's custodian is FCI-Ashland Warden Josie L. Snyder-Morris and this Court
has jurisdiction over Warden Snyder-Morris, which means that Wells properly
filed his § 2241 petition in this district. Had Wells filed his § 2241 petition in the
United States District Court for the Western District of North Carolina, that comi
undoubtedly would have transferred the proceeding here, because Wells is
confined in a federal prison located in this district, and because this Court has
jurisdiction over his custodian. Wells is fi'ee to file whatever type of civil action
he chooses in the United States District Court for the Western District of North
Carolina, but a transfer of the instant§ 2241 petition to that court is not warranted.
The Court now turns to the merits of Wells' claims, which challenge his
enhanced sentence. Generally, 28 U.S.C. § 2255 provides the correct avenue to
challenge a federal conviction or sentence, whereas a federal prisoner may file a §
2241 petition if he is challenging issues which relate to the execution of his
sentence (i.e., the BOP's calculation of sentence credits or other issues affecting
the length of his sentence). See United States v. Peterman, 249 F.3d 458, 461 (6th

4

See http://www.bop.gov/inmateloc/ as to Tony Wells, BOP Register No. 20272-058 (last

visited on May 11, 2015).
II

Cir. 2001); see also Charles Chandler, 180 F.3d 753, 755-56 (6th Cir. 1999). The
Sixth Circuit has explained the difference between the two statutes as follows:
[C]ourts have uniformly held that claims asserted by federal
prisoners that seek to challenge their convictions or imposition of
their sentence shall be filed in the [jurisdiction of the] sentencing
court under 28 U.S.C. § 2255, and that claims seeking to
challenge the execution or manner in which the sentence is
served shall be filed in the court having jurisdiction over the
prisoner's custodian under 28 U.S.C. § 2241.
Terrell v. United States, 564 F.3d 442, 447 (6th Cir.2009) (internal quotation

marks omitted).

In short, 28 U.S.C. § 2255 provides the primary avenue for

federal prisoners seeking relief from an unlawful conviction or sentence, not §
2241. See Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 2003).
Here, Wells is not challenging the manner in which the BOP is executing his
sentence, such as the way its computation of sentence credits or consideration of
parole eligibility, issues which traditionally fall under the purview of § 2241.
Instead, Wells contends that his enhanced sentence violates his constitutional rights
and that he should be resentenced without the six-level enhancement. Wells is thus
challenging the constitutionality his sentence on Fifth and Sixth Amendment
grounds, under§ 2241 via the "savings clause" of§ 2255(e).
However, a federal prisoner may challenge the legality of his detention
under § 2241 only if his remedy under § 2255(e) is found to be inadequate or

12

ineffective. Wooten v. Cauley, 677 F.3d 303, 306-07 (6th Cir. 2012). Wooten, 677
F.3d at 307; Charles, 180 F.3d at 756. This exception does not apply where a
prisoner fails to seize an earlier opportunity to correct a fundamental defect in his
or her convictions under pre-existing law, or actually asserted a claim in a prior
post-conviction motion under § 2255 but was denied relief. Charles, 180 F.3d at
756. Further, a prisoner proceeding under§ 2241 can implicate the savings clause
of§ 2255 if he alleges "actual innocence," Bannerman v. Snyder, 325 F.3d 722,
724 (6th Cir. 2003), and a petitioner may only pursue a claim of actual innocence
under § 2241 when that claim is "based upon a new rule of law made retroactive
by a Supreme Court case." Townsend v. Davis, 83 F. App'x 728, 729 (6th Cir.
2003). "It is the petitioner's burden to establish that his remedy under § 2255 is
inadequate or ineffective." Charles, 180 F.3d at 756.
Wells claims that Alleyne, which was decided after the district comt denied
his § 2255 motion, supports his claims. Wells asserts that under Alleyne, he had a
constitutional right to have all elements used to increase his penalty charged in the
indictment and proven beyond a reasonable doubt to the jury.

If Wells were

currently arguing this particular sentencing issue on direct appeal of his sentence,
he could likely invoke Alleyne as support for his argument. But Wells asse1ts this
sentencing claim in a § 2241 petition, which is merely a collateral challenge to his

13

sentence, and " ... a new rule is not made retroactive to cases on collateral review
unless the Supreme Court holds it to be retroactive." Tyler v. Cain, 533 U.S. 656,
663 (2001).
Unfortunately for Wells, on June 24, 2014, the Sixth Circuit Court of
Appeals joined numerous other appellate courts in holding that Alleyne does not
apply retroactively to cases on collateral review. See In re Mazzio, 756 F.3d 487,
489-91 (6th Cir. 2014); United States v. Winkelman, 746 F.3d 134, 136 (3d Cir.
2014); United States v. Rodriguez, 741 F.3d 1245, 1250 n. 3 (llth Cir. 2014);
United States v. Redd, 735 F.3d 88, 91-92 (2d Cir. 2013) (per curiam); United
States v. Stewart, 540 F. App'x 171, 172 n.* (4th Cir. 2013) (per curiam); In re
Payne, 733 F.3d 1027, 1029 (lOth Cir. 2013) (per curiam); In re Kemper, 735 F.3d
211, 212 (5th Cir. 2013) (per curiam); Simpson v. United States, 721 F.3d 875, 876
(7th Cir. 2013 ). Thus, Alleyne does not support Wells's argument.
Wells next argues that he no longer qualifies as a "career offender" because
of the new rule announced in Carachuri-Rosendo v. Holder, in which the Supreme
Court addressed how a district court should determine whether a defendant
qualifies as a "career offender" for sentencing purposes.

Wells' reliance on

Carachuri-Rosendo is misplaced, because Supreme Court did not hold in

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Carachuri-Rosendo that it was announcing a new rule or that its holding was

retroactive to cases pending on collateral review.
The Sixth Circuit has not addressed the issue, but in United States v. Powell,
692 F.3d 554 (4th Cir. 2012), the Fourth Circuit Court of Appeals held that
Carachuri-Rosendo articulated a procedural rule rather than a substantive rule.
Id.,at 559-60. The court of appeals reasoned that Carachuri-Rosendo did not alter

the range of conduct or the class of persons that could be punished under any
criminal statute; the decision changed the manner of determining whether a
defendant's prior conviction qualifies as an aggravated felony. Id. The Fourth
Circuit therefore held that Carachuri-Rosendo is a procedural rule and does not
apply retroactively to cases on collateral review. Id., at 560.
This Court and several other district courts in this Circuit have adopted this
reasoning. See, e.g., Callins v. United States, No. 04-CR-20009; No. 14-CV14781, 2015 WL 1540678, at *3 (E.D. Mich. Apr. 7, 2015) (refusing to apply
Carachrui-Rosendo retroactively); Hueso v. Sepanek, No. 13-CV-19-HRW, 2013

WL 4017117, at *6 (E.D. Ky. Aug 6, 2013) (stating that "[c]ourts have ... held that
the decision in Carachrui-Rosendo is not retroactively applicable to cases on
collateral review.") (collecting cases); Rawls v. United States, No. 3:01CR-124-H,
2013 WL 56986, at *2 (W.D. Ky. Jan. 3, 2013) (holding that contrary to Rawls's

15

assertion that Carachuri-Rosendo applied retroactively, the Fourth Circuit had
since held that Carachuri-Rosendo is a procedural rule that does not apply
retroactively to cases on collateral review); St01y v. United States, No. 2:02-CR-22,
2012 WL 2128007, at *2-3 (E.D. Tenn. June 12, 2012) (concluding that "the
Supreme Court did not find the rule in Carachuri-Rosendo to be new or hold that it
applies retroactively to cases on collateral review."); Thomas v. Holland, No. 10CV-98, 2011 WL 2446373, at *5 (E.D. Ky. June 15, 2011) (declaring that the
"Court is ... unwilling to apply [Carachuri-Rosendo] retroactively to a case on
collateral review without further guidance from the Supreme Court.").
While the Fourth Circuit applied the analytical framework described by the
Supreme Court in Carachuri-Rosendo to § 841(b) determinations in Simmons, a
claim under the savings clause must be predicated upon decisions of statutory
interpretation issued by the Supreme Court, not the circuit courts. Cf Miller v.
United States, 735 F.3d 141, 146 (4111 Cir. 2013) ("The fact that this Comt relied on
Carachuri in reaching its decision in Simmons does not mean that Carachuri itself

announced a new rule of substantive criminal law, only that this Court applied
Carachuri in such a way as to announce such a [new substantive rule.]"). Based

on the Fourth Circuit's opinion in Powell and the decisions of other district courts
listed above, the undersigned continues to conclude that absent further instruction

16

from the Supreme Court, Carachuri-Rosendo does not apply retroactively to a case
on collateral review, such as Wells'§ 2241 petition.
More fundamentally, however, Wells may not avail himself of the holdings
in Carachuri-Rosendo, Simmons, or Miller, because he expressly stipulated to the
specific sentencing range in which his sentence fell, and because he waived the
right to contest either the conviction or the sentence in any direct appeal or other
post-conviction action, including any proceedings under 28 U.S.C. § 2255. Such
waivers are enforceable in habeas proceedings under § 2241, and preclude the
assertion of the very argument that Wells pursues in this proceeding.

Solis-

Caceres v. Sepanek, No. 13-CV-21HRW, 2013 WL 4017119, at *3 (E.D. Ky. Aug.
6, 2013) (collecting cases); Combs v. Hickey, No. 11-CV-12-JMH, 2011 WL
65598 (E. D. Ky. Jan.7, 2011); Peete v. United States, No. 11-CV-2242, 2013 WL
3199834, at *1-2 (C.D. Ill. June 24, 2013) (holding that claims asserted in§ 2241
petition barred by plea agreement's waiver of right to collaterally attack
conviction); Triplett v. Debao, No. 5:12CV140, 2014 WL 235521, at *6 (N.D.
W.Va. Jan. 22, 2014) (holding challenge under Carachuri-Rosendo to § 922(g)
conviction in § 2241 petition barred by collateral attack waiver in plea agreement).
Further, Wells does not claim that he is actually innocent of the various drug
offenses of which he was convicted; he challenges only the amount of time which

17

he was ordered to serve in prison. In other words, he has not alleged that he
"stands convicted of 'an act that the law does not make criminal."' Carter v.
Coakley, No. 4:13 CV 1270,2013 WL 3365139 (N.D. Ohio July 3, 2013) (quoting
Bousley v. United States, 523 U.S. 614, 623 (1998)).
Indeed, the Sixth Circuit has never extended to savings clause to § 2241
petitioner who challenges only the enhancement of his sentence; in fact, the Sixth
Circuit has repeatedly held (and in no uncertain terms): "Claims alleging 'actual
innocence' of a sentencing enhancement cannot be raised under § 2241." Jones v.
Castillo, 489 F. App'x 864, 866 (6th Cir. 2012); see also Reminsky v. United
States, 523 F. App'x 327, 329 (6th Cir. 2013) ("The savings clause under §
2255(e) does not apply to sentencing claims."); Hayes v. Holland, 473 F. App'x
501, 502 (6th Cir. 2012) (same); Contreras v. Holland, 487 F. App'x 287, 288 (6th
Cir. 2012) (holding that a prisoner's challenge to his sentencing enhancement
under§§ 841 and 846 was not cognizable under§ 2241); Anderson v. Hogsten, 487
F. App'x 283, 284 (6th Cir. 2012) (same); Brown v. Hogsten, 503 F. App'x 342,
343 (6th Cir. 2012) ("[C]laims of sentencing error may not serve as the basis for an
actual innocence claim."); see also, Hoskins v. Coakley, No. 4:13-CV-1632, 2014
WL 245095 (N.D. Ohio Jan. 22, 2014) (denying federal prisoner's § 2241 petition

18

in which he challenged only his enhanced sentence). One of our sister courts
correctly summarized this issue as follows:
" ... neither Carachuri-Rosendo nor Simmons have any bearing on
whether Petitioner is actually innocent of a crime. These cases merely
limit the potential punishment the sentencing court may impose.
Stevens v. Farley, No. 1:11CV2260, 2012 WL 1669847, at *4 (N.D.
Ohio May 14, 2012). Claims of sentencing errors do not support a
finding of actual innocence.
Rivera-Cruz v. Coakley, No. 4:14-CV-656, 2014 WL 2946651, at *4 (N.D.

Ohio June 30, 2014) (emphasis added).
Because the savings clause of§ 2255 extends only to petitioners asserting a
claim of actual innocence regarding their convictions, not their sentences, Wells
has not alleged a valid actual innocence claim.
Finally, Wells asks the Court to consider his petition in light of the Supreme
Court's grant/vacate/remand ("GVR") order in Persaud v. United States, 134 S.Ct.
1023 (2014).

Like Wells, the defendant in Persaud sought to challenge a

sentencing enhancement by way of a § 2241 petition and the savings clause of §
2255. And as with Wells, binding circuit precedent foreclosed that avenue of relief.
The Solicitor General confessed en'Ol', taking the view that a petitioner can
challenge a sentencing enhancement through the savings clause, and asked the
Supreme Court to remand the case to the Fourth Circuit for reconsideration in light
of the United States' new position. See Brief of Appellee at *22-23, Persaud, 134
19

S.Ct. at 1023. The Supreme Court acquiesced and issued a GVR order. Persaud,
134 S.Ct. at 1023.
However, the Supreme Court's GVR order was not a reversal on the merits,
nor was it a suggestion that the Fourth Circuit was wrong. See Communities for

Equity v. Mich. High Sch. Athletic Ass'n, 459 F.3d 676, 681 (6th Cir. 2006).
Rather, it is "a device that allows a lower comi that had rendered its decision
without the benefit of an intervening clarification to have an opportunity to
reconsider that decision and, if warranted, to revise or correct it." Gonzalez v.

Justices ofthe Mun. Ct. of Boston, 420 F.3d 5, 7 (1st Cir. 2005). While the GVR
in Persaud gives the Fourth Circuit an opp01iunity to reconsider its own decision,
it does not give district courts free license to ignore binding circuit precedent. And
in this case, binding Sixth Circuit precedent bars Wells from seeking relief through
a § 2241 petition.
For the reasons set forth above, Wells has not demonstrated that he is
actually innocent of the drug offenses of which he was convicted. Because Wells
is not entitled to relief under § 2241, his habeas petition will be denied and this
proceeding will be dismissed.
CONCLUSION

Accordingly, it is hereby ORDERED as follows:

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1.

The 28 U.S.C. § 2241 petition for a writ of habeas corpus filed by

Petitioner Tony Wells [D. E. No. 1] is DENIED.
2.

The Court will enter an appropriate Judgment; and

3.

This § 2241 habeas proceeding is DISMISSED and STRICKEN

from the Court's docket.
This May 15, 2015.

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