Gelinas v. Terris

Filing 5

OPINION and ORDER Dismissing 1 Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability and Denying Leave to Proceed in Forma Pauperis on Appeal. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
DAVID A. GELINAS,
Petitioner,

Case No. 14-cv-10888

v

Honorable Thomas L. Ludington

J. A. TERRIS,
Respondent.
__________________________________________/
OPINION AND ORDER DISMISSING PETITION FOR HABEAS CORPUS, DENYING
A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN
FORMA PAUPERIS ON APPEAL
Petitioner David A. Gelinas is a federal inmate incarcerated at the Federal Correctional
Institution in Milan, Michigan. On February 26, 2014, he filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241, contending that his sentence should be vacated
because it was improperly enhanced by facts not submitted to a jury. For the reasons that follow,
the petition will be dismissed.
I
A jury convicted Petitioner of conspiracy to distribute methamphetamine and conspiracy
to commit money laundering. On June 26, 2001, the United States District Court for the Northern
District of Iowa sentenced Petitioner to 240 months in prison to be followed by 5 years of
supervised release.
On October 16, 2003, Petitioner filed a 28 U.S.C. § 2255 motion to vacate, set aside, or
correct his sentence. The district court denied the motion. Gelinas v. United States, No. 99-01005
(N.D. Iowa April 27, 2005). Petitioner then filed a request for a certificate of appealability,

which the Eighth Circuit Court of Appeals denied. Gelinas v. United States, No. 05-2769 (8th
Cir. Dec. 21, 2005).
Petitioner has now filed the pending § 2241 petition, raising a claim that his sentence was
improperly enhanced by findings of fact made by the sentencing judge and not submitted to the
jury.
II
A court must promptly examine a petition to determine “if it plainly appears from the
face of the petition and any attached exhibits that the petitioner is not entitled to relief.” Rule 4,
Rules Governing Section 2254 cases.1 If the court determines that the petitioner is not entitled to
relief, the court shall summarily dismiss the petition. McFarland v. Scott, 512 U.S. 849, 856
(1994) (“Federal courts are authorized to dismiss summarily any habeas petition that appears
legally insufficient on its face.”)
Section 2241 provides a remedy for federal prisoners in two circumstances: (1) to
challenge the execution of a sentence, or (2) to test the legality of a detention when § 2255 is
otherwise inadequate. 28 U.S.C. § 2241; United States v. Peterman, 249 F.3d 458, 460 (6th Cir.
2001). Petitioner is unable to set forth a colorable claim under either prong. After undertaking a
Rule 4 review of the petition, the Court concludes that Petitioner is not entitled to relief under §
2241.
A
First, 28 U.S.C. § 2241 is unavailing to Petitioner because he is not challenging the
execution of his sentence. Instead, he is seeking to challenge the imposition of the sentence—he

1

The Rules Governing Section 2254 Cases may be applied at the discretion of the district court judge to petitions
not filed under § 2254, such as a § 2241 petition. See Rule 1(b), Rules Governing Section 2254 Cases.

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contends that the district court improperly imposed his sentence after considering facts not
submitted to a jury.
“[C]laims asserted by federal prisoners that seek to challenge their convictions or
imposition of their sentence shall be filed in the sentencing court under 28 U.S.C. § 2255 . . . .”
Charles v. Chandler, 180 F.3d 755, 756-57 (6th Cir. 1999). In contrast, “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.” Id. Because Petitioner
is challenging the imposition of his sentence, § 2255 is the correct vehicle for his motion, not §
2241.
B
Second, Petitioner has not shown that a § 2255 motion would be “inadequate”—a term of
art. Section 2255’s “savings clause” permits a petitioner to file a habeas corpus petition
challenging his conviction pursuant to § 2241 rather than § 2255 in limited circumstances:
An application for a writ of habeas corpus on behalf of a prisoner who is
authorized to apply for relief by motion pursuant to this section, shall not be
entertained 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.
28 U.S.C. § 2255 (emphasis added). The petitioner has the burden of showing that a § 2255
remedy is inadequate.
Petitioner contends that § 2255 relief is inadequate because the Supreme Court case upon
which he bases his argument, Alleyne v. United States, 133 S. Ct. 2151 (2013), had not been
decided at the time he filed his direct appeal or his previous § 2255.2 In Apprendi v. New Jersey,

2

Because Petitioner has already filed a previous § 2255 motion, he must seek permission from the Sixth Circuit
Court of Appeals before filing another § 2255 motion. 28 U.S.C. 2244(3)(A) (“Before a second or successive

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530 U.S. 466 (2000), the Supreme Court held that a fact must be submitted to a jury and found
beyond a reasonable doubt if it increases a defendant’s statutory mandatory maximum sentence.
In Alleyne, the Court held that the same rule applies to “facts that increase mandatory minimum
sentences.” Alleyne, 133 S. Ct. at 2163 (emphasis added).
The circumstances under which § 2255 might be deemed inadequate are narrow, because
an expansive definition would defeat § 2244’s restrictions on successive motions. United States
v. Peterman, 249 F.3d 458, 491 (6th Cir. 2001). “[T]he § 2255 remedy is not considered
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 motion to vacate.” Id.
(quoting Charles, 180 F.3d at 756).
More specifically, the Sixth Circuit has held that § 2255’s savings clause “may only be
applied when the petitioner makes a claim of actual innocence.” Bannerman v. Snyder, 325 F.3d
722, 724 (6th Cir. 2003). To establish actual innocence, the petitioner “must demonstrate that, in
light of all the evidence, it is more likely than not that no reasonable juror would have convicted
him.” Bousley v. United States, 523 U.S. 614, 623 (1998). Claims of sentencing errors do not
serve as the basis for an actual innocence claim. See id. (holding Apprendi could not be the basis
for actual innocence claim).
Because Petitioner claims the district court made a sentencing error, he has not asserted a
claim for actual innocence. Therefore, Petitioner has not shown that a § 2255 motion would be
inadequate to assert his claim. Section § 2255’s savings clause is not applicable, and Petitioner
cannot maintain his claims in a § 2241 petition. Accord Alsop v. Chandler, 2014 WL 68913, at
*1 (5th Cir. Jan. 9, 2014) (federal inmate’s claim that his sentence was improperly enhanced by

application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of
appeals for an order authorizing the district court to consider the application.”).

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an element not submitted to the jury in violation of Alleyne not properly filed under § 2241);
Jackman v. Shartle, 535 F. App’x 87, 89 (3d Cir. Aug. 20, 2013) (motion to vacate sentence
under § 2255, rather than petition under § 2241, is the proper remedy for claim under Alleyne);
Porter v. Wilson, 2014 WL 356731, at *2 (E.D. Va. Jan. 31, 2014) (holding that the decision in
Alleyne fails to provide a basis for filing a § 2241 petition).
III
Before Petitioner may appeal the Court’s decision, a certificate of appealability must
issue. 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability may issue
“only if the applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). When a court denies relief on the merits, the substantial showing threshold
is met if the petitioner demonstrates that reasonable jurists would find the court’s assessment of
the constitutional claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000);
see also Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). When a court denies relief on
procedural grounds without addressing the merits, a certificate of appealability should issue if it
is shown that jurists of reason would find it debatable whether the petitioner states a valid claim
of the denial of a constitutional right, and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling. Slack, 529 U.S. at 484-85.
Having conducted the requisite review, the Court concludes that jurists of reason would
not find the dismissal of this habeas action on jurisdictional grounds debatable. Furthermore, the
Court will deny leave to proceed in forma pauperis on appeal because any appeal would be
frivolous and cannot be taken in good faith. See Fed. R. App. P. 24(a).

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IV
The Court concludes that it plainly appears from the face of the petition that Petitioner is
not entitled to habeas corpus relief pursuant to 28 U.S.C. § 2241.
Accordingly, it is ORDERED that Petitioner’s petition for a writ of habeas corpus (ECF
No. 1) is DISMISSED WITH PREJUDICE.

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: March 7, 2014

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail and on David Gelinas #08079-029, Milan, Federal
Corrrectional Institution, Inmate Mail/Parcels, P.O. Box 1000, Milan,
MI 48160 by first class U.S. mail on March 7, 2014.
s/Tracy A. Jacobs
TRACY A. JACOBS

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