Wilburn v. Terris
Filing
5
OPINION AND ORDER SUMMARILY DENYING THE PETITION FOR WRIT OF HABEAS CORPUS BROUGHT PURSUANT TO 28 U.S.C. § 2241 Signed by District Judge Gershwin A. Drain. (Bankston, T)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TIMOTHY D. WILBURN, SR.,
Petitioner,
v.
Case No. 15-cv-11453
Honorable Gershwin A. Drain
J.A. TERRIS,
Respondent.
/
OPINION AND ORDER SUMMARILY DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS BROUGHT PURSUANT TO 28 U.S.C. § 2241
I. INTRODUCTION
Timothy D. Wilburn, Sr., (“Petitioner”), a federal prisoner confined at the Federal
Correctional Institution in Milan, Michigan, seeks the issuance of a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. In his application, filed pro se, petitioner challenges his sentence
enhancement under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). For the
reasons stated below, the petition for writ of habeas corpus will be SUMMARILY DENIED.
II. BACKGROUND
Petitioner was convicted of being a felon in possession of a firearm following a jury trial
in the United States District Court for the Eastern District of Wisconsin. Petitioner was sentenced
to the statutory minimum term of 15 years under the provisions of the Armed Career Criminal
Act after a finding that he had three prior violent felony convictions. Petitioner’s conviction was
affirmed on appeal. United States v. Wilburn, 473 F.3d 742 (7th Cir. 2007), cert. denied, 551
U.S. 1123 (2007).
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Petitioner filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255, which was
denied. United States v. Wilburn, No. 08-C-411 (E.D. Wis. February 10, 2009). Petitioner was
then denied authorization to file a successive motion to vacate sentence twice by the United
States Court of Appeals for the Seventh Circuit. See Wilburn v. United States, No. 10-2558 (7th
Cir. July 8, 2010); Wilburn v. United States, No. 12-3784 (7th Cir. December 21, 2012).
Following the denials from the Seventh Circuit, Petitioner filed a motion for relief from
judgment under Rule 60(b)(6) of the Federal Rules of Civil Procedure in the Wisconsin district
court, which the district court denied, finding it to be an unauthorized second or successive
motion to vacate sentence. See United States v. Wilburn, No. 04-CR-80, 2012 WL 5438990
(E.D. Wis. November 6, 2012).
The district court subsequently denied petitioner’s motion to amend his § 2255 motion
because his original § 2255 motion was no longer pending and had been deemed to be a
successive motion. The Court directed the Clerk of Court to open a new civil action before
dismissing the action for lack of jurisdiction. See United States v. Wilburn, No. 08-C-411, 2013
WL 1403057 (E.D. Wis. Apr. 5, 2013).
Nevertheless, Petitioner filed yet another motion to vacate sentence, which was again
denied because it was an unauthorized successive motion to vacate sentence. See United States v.
Wilburn, No. 04-CR-80, 2014 WL 2807539 (E.D. Wis. June 20, 2014). The Seventh Circuit
denied petitioner’s motion for a certificate of appealability from this dismissal, finding his appeal
to be frivolous. See Wilburn v. United States, No. 2428 (7th Cir. November 18, 2014). Petitioner
has now filed a petition for writ of habeas corpus in this Court seeking habeas relief.
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III. DISCUSSION
A. STANDARD OF REVIEW
A federal prisoner may bring a claim challenging his conviction or the imposition of
sentence under 28 U.S.C. § 2241 only if it appears that the remedy afforded under § 2255 is
inadequate or ineffective to test the legality of the defendant’s detention. See Wooten v. Cauley,
677 F. 3d 303, 307 (6th Cir. 2012). Habeas corpus is not an additional, alternative, or
supplemental remedy to the motion to vacate, set aside, or correct the sentence. See Charles v.
Chandler, 180 F. 3d 753, 758 (6th Cir. 1999).
The burden of showing that the remedy afforded under § 2255 is inadequate or
ineffective rests with the petitioner, and the mere fact that a prior motion to vacate sentence may
have proven unsuccessful does not necessarily meet that burden. In Re Gregory, 181 F. 3d 713,
714 (6th Cir. 1999). The remedy afforded under § 2255 is not considered inadequate or
ineffective simply because § 2255 relief has already been denied, because the petitioner has been
procedurally barred from pursuing relief under § 2255, or because the petitioner has been denied
permission to file a second or successive motion to vacate sentence. Wooten v. Cauley, 677 F. 3d
at 303; Charles v. Chandler, 180 F. 3d at 756.
The mere fact that the provisions of the Antiterrorism and Effective Death Penalty Act
(AEDPA) might prevent a petitioner from filing a second or successive motion to vacate or set
aside the sentence—in the absence of newly discovered evidence or a new rule of constitutional
law—does not render the remedy provided by such motion inadequate or ineffective to allow
him to petition for habeas corpus relief under 28 U.S.C. § 2241. See Hervey v. United States, 105
F. Supp. 2d 731, 733 (E.D. Mich. 2000). Similarly, a habeas petitioner’s § 2255 remedy is not
inadequate merely because the petitioner permitted the one year statute of limitations contained
in the AEDPA to expire. Charles, 180 F. 3d at 758.
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The circumstances under which a motion to vacate sentence brought pursuant to § 2255
might be deemed inadequate and ineffective so as to permit relief via a writ of habeas corpus
under § 2241 are narrow, because the “liberal allowance” of the writ would defeat the
restrictions placed on successive petitions or motions for collateral relief imposed by the
AEDPA. United States v. Peterman, 249 F. 3d 458, 461 (6th Cir. 2001). In fact, to date, no
federal circuit court has permitted a post-AEDPA petitioner who was not effectively making a
claim of “actual innocence” to use § 2241—via § 2255's savings clause—as a way of
circumventing § 2255’s restriction on the filing of a second or successive motion to vacate
sentence. Charles v. Chandler, 180 F. 3d at 757.
B. LEGAL ANALYSIS
Here, Petitioner has filed a petition for writ of habeas corpus in this Court, seeking
habeas relief on the following ground:
Whether the U.S. Supreme Court’s holding in Johnson [v. United States] renders
Petitioner Wilburn Sr.’s ACCA enhancement pursuant to 18 U.S.C. § 924(e)
statutorily ineligible. In light of Johnson, he is no longer an armed career
criminal after Johnson, thus Mr. Wilburn, Sr. has received a punishment that the
law cannot impose upon him. Therefore, Petitioner Wilburn, Sr. argues that his
claim is cognizable pursuant to Section 2241 as it is a fundamental sentencing
claim that results in a sentence [that] erroneously exceeded his statutory
maximum, thus, Section 2241 is available in light of Persaud [v. United States].
Petitioner claims that his 1982 juvenile court adjudication out of the State of Wisconsin for
armed robbery no longer qualifies as a predicate violent felony under the Armed Career Criminal
Act, because the robbery did not necessarily involve “violent force,” as defined by the U.S.
Supreme Court in Johnson v. United States, 559 U.S. 133 (2010). Petitioner further claims that
the Supreme Court’s definition of “violent felony” in Johnson narrowed his exposure to a
sentence enhancement under the Armed Career Criminal Act.
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Despite the fact that the pre-sentence report prepared in Petitioner’s federal criminal case
indicates that a witness saw Petitioner and another individual approach and point guns at her
husband; Petitioner claims that there are no documents or evidence, as contemplated by the
Supreme Court in Johnson and several other Supreme Court cases, to prove that Petitioner
actually used a firearm, knife, or destructive device, in order for his 1982 robbery conviction to
qualify as a predicate felony conviction under the Armed Career Criminal Act.
After reviewing Petitioner’s argument, the Court will summarily deny the petition for
writ of habeas corpus. Petitioner’s sentencing claim does not fall within the actual innocence
exception that would allow him to file a § 2241 petition, because the Sixth Circuit has held that a
habeas petitioner’s challenge to his sentence cannot serve as the basis for an actual innocence
claim under § 2241. See Gibbs v. United States, 655 F.3d 473, 479 (6th Cir.2011).
This Court emphasizes that Petitioner does not allege or argue that he is innocent of the
underlying felon in possession of a firearm conviction. Instead, he argues that his case falls
within the actual innocence exception because the Supreme Court narrowed the definition of
what constitutes a violent felony under the Armed Career Criminal Act. Petitioner’s claim that
he is innocent of the sentencing enhancement under the Armed Career Criminal Act does not
come within the actual innocence exception under § 2241 because petitioner does not allege that
he is innocent of the underlying firearms conviction. See Brown v. Hogsten, 503 Fed. Appx. 342,
343 (6th Cir. 2012); Jones v. Castillo, 489 Fed. Appx. 864, 866 (6th Cir. 2012); Raymer v.
Barron, 82 Fed. Appx. 431, 432 (6th Cir. 2003).
Without any allegation that his remedy under § 2255 is inadequate or ineffective,
Petitioner is not entitled to habeas relief from his criminal conviction and sentence pursuant to 28
U.S.C. § 2241. Moreover, this Court cannot construe this petition as a motion to vacate sentence
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brought pursuant to 28 U.S.C. § 2255. See In re Shelton, 295 F. 3d 620, 622 (6th Cir. 2002).
Petitioner’s petition for a writ of habeas corpus must set forth facts that give rise to a cause of
action under federal law or it may summarily be dismissed. See Perez v. Hemingway, 157 F.
Supp. 2d 790, 796 (E.D. Mich. 2001). Petitioner’s petition does not meet this standard.
Federal courts are authorized to dismiss any habeas petition that appears legally
insufficient on its face. McFarland v. Scott, 512 U.S. 849, 856 (1994). A federal district court is
authorized to summarily dismiss a habeas corpus petition if it plainly appears from the face of
the petition or the exhibits that are attached to it that the petitioner is not entitled to federal
habeas relief. See Carson v. Burke, 178 F. 3d 434, 436 (6th Cir. 1999); Rules Governing § 2254
Cases, Rule 4, 28 U.S.C. foll. § 2254.
Indeed, the Sixth Circuit has indicated that it “disapprove[s] the practice of issuing a
show cause order [to the respondent] until after the District Court first has made a careful
examination of the petition.” Allen v. Perini, 424 F. 2d 134, 140 (6th Cir. 1970). This court has a
duty to screen out a habeas corpus petition which should be dismissed for lacks merit on its face.
Id. at 141. No return to a habeas petition is necessary when the petition is frivolous, or obviously
lacks merit, or where the necessary facts can be determined from the petition itself without
consideration of a return by the state. Id.
Courts have used Rule 4 of the habeas corpus rules to summarily dismiss facially
insufficient habeas petitions brought under § 2241. See e.g. Perez, 157 F. Supp. 2d at 796
(additional citations omitted). All of this considered, and because the instant petition is facially
insufficient to grant habeas relief, the petition is subject to summary dismissal. See e.g. Perez,
157 F. Supp. 2d at 796.
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IV. CONCLUSION
For the reasons discussed, IT IS HEREBY ORDERED that the Petition for Writ of
Habeas Corpus brought pursuant to 28 U.S.C. § 2241 is SUMMARILY DENIED WITH
PREJUDICE. Because a certificate of appealability is not needed to appeal the denial of a
habeas petition filed under § 2241, Witham v. United States, 355 F. 3d 501, 504 (6th Cir. 2004),
petitioner need not apply for one with this Court or with the Sixth Circuit before filing an appeal
from the denial of his habeas petition.
SO ORDERED.
Dated: April 30, 2015
/s/Gershwin A Drain
Hon. Gershwin A. Drain
United States District Court Judge
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