Foreman v. Terris

Filing 8

OPINION AND ORDER Dismissing Petition for Writ of Habeas Corpus. Signed by District Judge David M. Lawson. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BENJAMIN P. FOREMAN,
Petitioner,

Case Number 16-13578
Honorable David M. Lawson

v.
J.A. TERRIS,
Respondent,
________________________________/
OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Benjamin P. Foreman is a federal prisoner presently confined at the Federal
Correctional Institution in Milan, Michigan. He is serving a sentence imposed by the United States
District Court for the Western District of Michigan following his guilty plea to drug and firearms
offenses. Before the Court is his petition for a writ of habeas corpus filed under 28 U.S.C. § 2241.
The petitioner asserts in his present petition that the Court should correct the record of proceedings
to indicate that he is “no longer a career offender.” The Court has completed a preliminary review
of the petition under Rule 4 of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254, and
concludes that the petition must be dismissed for several reasons outlined below. “Although [the]
petitioner brought this petition under § 2241 and not § 2254, the rules governing § 2254 cases may
be applied at the discretion of the district court judge in habeas petitions not brought under § 2254.”
Perez v. Hemingway, 157 F. Supp. 2d 790, 796 (E.D. Mich. 2001) (citing Rules Governing § 2254
Cases, Rule 1(b), 28 U.S.C. foll. § 2254 (“The district court may apply any or all of these rules to
a habeas corpus petition not covered by Rule 1(a).”)).

I.
This is not the first post-conviction challenge the petitioner has mounted against his
convictions and sentences. 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. 08-01115 (W.D. Mich. Oct. 18, 2010). The Sixth Circuit remanded the case

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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. 0801115 (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. 14-14925 (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).
The present petition is yet another rerun of claims and arguments previously raised, and
previously dismissed by this Court. Once again, and for the same reasons already explained by this
and other courts of this district, the petition must be denied.
When a petition for a writ of habeas corpus is filed, the district court “must promptly
examine it . . . [and] dismiss [it] [i]f it plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief in the district court.” Rules Governing § 2254 Cases, Rule
4, 28 U.S.C. foll. § 2254; McFarland v. Scott, 512 U.S. 849, 856 (1994); Carson v. Burke, 178 F.3d
434, 436 (6th Cir. 1999); Allen v. Perini, 424 F. 2d 134, 140 (6th Cir. 1970). As the Court
previously and repeatedly has explained, there are several reasons why the petitioner is not entitled
to relief.

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First, section 2241 is not the appropriate statute for seeking relief on the petitioner’s claims
that he is in custody under a “void” judgment, or that he is “actually innocent” of being a career
offender. As the Sixth Circuit has explained, section 2241 only may be used by a federal prisoner
to challenge the execution of his sentence. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir.
1998). A motion to vacate sentence under 28 U.S.C. § 2255 is the proper avenue for raising a claim
that a sentence was imposed in violation of the federal constitution or laws. Ibid.

There is an

exception to this general rule, but it is narrow and only allows a challenge to a sentence under
section 2241 if it appears that the remedy afforded by 2255 is inadequate or ineffective to test the
legality of the petitioner’s detention. See Wooten v. Cauley, 677 F.3d 303, 307 (6th Cir. 2012). The
petitioner has not shown — or even alleged — that section 2255 is inadequate to provide relief on
the grounds alleged here. That is the petitioner’s burden to carry. The mere fact that a prior motion
to vacate sentence may have proven unsuccessful does not satisfy that burden. In Re Gregory, 181
F.3d 713, 714 (6th Cir. 1999). Denial of a previous section 2255 motion or a procedural bar against
bringing one does not suffice, either. Wooten, 677 F.3d at 303; Charles v. Chandler, 180 F.3d 753,
756 (6th Cir. 1999).
Second, even if the Court were to consider the merits of the claim, the petition fails. In his
present petition, the petitioner once again raises the claim that he is being held in federal custody
under a judgment that is void. In this latest variant of the petitioner’s several attempts to collaterally
attack his conviction and sentence, he has styled his petition as a request for the Court to “correct
the presentence report to indicate that he is no longer a career offender.” But the petitioner does not
allege that the judgment of conviction under which he presently is held has been vacated or
amended, and any indication in the PSR that the petitioner was sentenced as a career offender

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therefore correctly reflects the nature of his status at sentencing. The “correction” of the PSR that
the petitioner seeks necessarily would require the Court first to vacate the judgment of conviction
by which his sentence was imposed, and that is not relief that the petitioner can obtain via section
2241. All of the arguments that the petitioner advances to support his claim that the judgment is
“void” were discussed and summarily rejected by the district court in Foreman v. Terris, No. 1513764 (E.D. Mich. Oct. 29, 2015), and they need not be addressed again here.
Third, the petitioner’s claim that he is “actually innocent” of a sentencing enhancement is
not a sufficient basis to allow him to proceed under § 2241. The Sixth Circuit has not extended the
actual innocence exception to petitioners challenging only their sentence. United States v.
Peterman, 249 F.3d 458, 462 (6th Cir. 2001); see also Hayes v. Holland, 473 F. App’x 501, 502 (6th
Cir. 2012) (citing Peterman); Woods v. Coakley, No. 13-1388, 2013 WL 3818163, *4-5 (N.D. Ohio
July 22, 2013); Ross v. Zuercher, No. 09-152, 2010 WL 568528, *2 (E.D. Ky. Feb. 12, 2010)
(dismissing § 2241 petition raising sentencing challenge); accord Sorrell v. Bledsoe, No. 10-1649,
2011 WL 2728287, *2 (3d Cir. July 14, 2011) (dismissing § 2241 petition seeking sentencing relief
under Supreme Court law). This Court is bound by the controlling Sixth Circuit decisions on point.
The petitioner is not allowed to proceed under § 2241 rather than § 2255 to pursue the challenge to
his sentence posed by the present petition. Therefore it must be dismissed.
III.
The Court concludes that there is no merit to the petition. It is subject to summary dismissal
under Rule 4 of the Rules Governing § 2254 Cases. Because a certificate of appealability is not
needed to appeal the denial of a habeas petition filed under section 2241, Witham v. United States,
355 F.3d 501, 504 (6th Cir. 2004), the petitioner need not apply for one with this Court.

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Accordingly, it is ORDERED that the petition for writ of habeas corpus is DISMISSED
WITH PREJUDICE.
It is further ORDERED that the government’s motion to dismiss [dkt. #5] is DISMISSED
as moot.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: January 6, 2017
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 on January 6, 2017.
s/Susan Pinkowski
SUSAN PINKOWSKI

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