Smith v. Terris

Filing 3

OPINION AND ORDER Dismissing Petition for Writ of Habeas Corpus Without Prejudice Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DEMOND DESHON SMITH,
Petitioner,
v.

CASE NO. 2:17-CV-10512
HONORABLE VICTORIA A. ROBERTS

J. A. TERRIS,
Respondent.
_________________________________/
OPINION AND ORDER DISMISSING WITHOUT PREJUDICE
THE PETITION FOR A WRIT OF HABEAS CORPUS
I. Introduction
Federal prisoner Demond Deshon Smith (“Petitioner”), currently confined at the Federal
Correctional Institution in Milan, Michigan, has filed a pro se Petition for a Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241 challenging his federal sentencing enhancement. He seeks the
vacation of his sentence and a remand for re-sentencing.
Promptly after the filing of a habeas petition, the Court must undertake a preliminary review
of the petition to determine whether “it plainly appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules
Governing § 2254 Cases; see also 28 U.S.C. § 2243 (directing courts to grant the writ or order the
respondent to answer “unless it appears from the application that the applicant or person detained
is not entitled thereto”); Perez v. Hemingway, 157 F. Supp. 2d 790, 796 (E.D. Mich. 2001)
(discussing authority of federal courts to summarily dismiss § 2241 petitions). If, after preliminary
consideration, the Court determines that the petitioner is not entitled to relief, the Court must

summarily dismiss the petition. See Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court
has duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes
those petitions which raise legally frivolous claims, as well as those containing factual allegations
that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After
undertaking such review, and for the reasons stated herein, the Court concludes that the petition
must be dismissed.

II. Facts and Procedural History

On October 18, 2012, Petitioner pleaded guilty to felon in possession of a firearm in violation
of 18 U.S.C. § 922(g) in the United States District Court for the Eastern District of Michigan. On
April 11, 2013, he was sentenced, as an armed career criminal, to 144 months imprisonment. United
States v. Smith, No. 2:12-CR-20103 (E.D. Mich.) (Rosen, J.). His direct appeal to the United States
Court of Appeals for the Sixth Circuit was dismissed as untimely. United States v. Smith, No. 131741 (6th Cir. Aug. 15, 2013).
Petitioner then filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255 with the
District Court, which was denied on November 17, 2015. United States v. Smith, Nos. 2:12-CR20103, 2:14-CV-12862 (E.D. Mich.) (Rosen, J.). The District Court denied Petitioner’s Motion to
Alter or Amend the Judgment on December 30, 2015 and denied his Motion for a Certificate of
Appealability on May 3, 2016. Id. The Sixth Circuit also denied a certificate of appealability.
Smith v. United States, No. 16-1122 (6th Cir. Sept. 15, 2016). The United States Supreme Court
recently denied certiorari. Smith v. United States, No. 16-7447 (U.S. Feb. 22, 2017).
In the interim, on September 19, 2016, Petitioner filed a Motion to Supplement or Amend
his Motion to Vacate Sentence under 28 U.S.C. § 2255 with the District Court based upon the
Supreme Court’s ruling in Mathis v. United States, _ U.S. _, 136 S. Ct. 2243 (June 23, 2016). The

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District Court treated the request as a second or successive motion to vacate sentence and transferred
the matter to the Sixth Circuit on January 30, 2017. Smith v. United States, Nos. 2:12-CR-20103,
2:14-CV-12862 (E.D. Mich.) (Rosen, J.). The matter remains pending in the Sixth Circuit.
Petitioner dated the instant habeas petition on February 12, 2017 and it was filed by this
Court on February 15, 2017. In his current pleadings, Petitioner asserts that he is entitled to habeas
relief because one of his Michigan predicate offenses is not a serious drug offense that can be used
to enhance his sentence past the statutory maximum under the Armed Career Criminal Act in light
of Mathis, supra. Petitioner asserts that his remedy under 28 U.S.C. § 2255 is inadequate or
ineffective and that he is actually innocent of the enhanced sentence.
III. Discussion
Petitioner brings this action as a habeas petition under 28 U.S.C. § 2241. His habeas claim,
however, concerns the validity of his federal felon in possession sentence. A motion to vacate
sentence under 28 U.S.C. § 2255 filed with the trial court is the proper avenue for relief on a federal
prisoner’s claims that his conviction and/or sentence were imposed in violation of the federal
constitution or federal law. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); see also
McCully v. United States, 60 F. App’x 587, 588 (6th Cir. 2003) (citing United States v. Peterman,
249 F.3d 458, 461 (6th Cir. 2001)). 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 his detention. Charles v. Chandler,
180 F.3d 753, 756 (6th Cir. 1999); see also Wooton 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. Charles, 180 F.3d at 758.

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Petitioner asserts that he should be allowed to proceed under § 2241 because he already filed
a motion to vacate sentence under § 2255 raising other grounds for relief, which was denied. 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 generally 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 may
be or has already been denied, because the petitioner is time-barred or otherwise 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. Charles, 180 F.3d at 756. Moreover, § 2255 allows
a criminal defendant to seek relief based upon a change in the law and even to bring a second or
successive motion under limited circumstances.
The possibility that Petitioner may not be able to satisfy the procedural requirements under
§ 2255 does not mean that he should be allowed to proceed under § 2241. See Peterman, 249 F.3d
at 461 (“The circumstances in which § 2255 is inadequate and ineffective are narrow, for to construe
§ 2241 relief much more liberally than § 2255 relief would defeat the purpose of the restrictions
Congress placed on the filing of successive petitions for collateral relief.”). The remedy afforded
under § 2241 is not an additional, alternative, or supplemental remedy to that allowed by § 2255.
Charles, 180 F.3d at 758.
Petitioner also asserts that he should be allowed to proceed under § 2241 via the “savings
clause” of § 2255 because he is actually innocent of his sentencing enhancement based upon Mathis.
This argument, however, puts the cart before the horse. Petitioner fails to show that his remedy
under § 2255 is inadequate or ineffective. Court records indicate that he currently has a request to

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proceed on a second or successive motion to vacate sentence under § 2255 pending before the Sixth
Circuit. Given that Petitioner may be allowed to proceed on such a second or successive motion,
he fails to establish that his remedy under § 2255 is inadequate or ineffective. He is thus not entitled
to proceed under 28 U.S.C. § 2241 at this time. This matter must therefore be dismissed.
IV. Conclusion
For the reasons stated, the Court concludes that Petitioner is challenging the validity of his
federal felon in possession sentence and that he fails to establish that his remedy under 28 U.S.C.
§ 2255 is inadequate or ineffective to test the legality of his detention. His claim is improperly
brought under 28 U.S.C. § 2241. Accordingly, the Court DISMISSES WITHOUT PREJUDICE
the Petition for a Writ of Habeas Corpus.
Lastly, the Court notes that a Certificate of Appealability is not needed to appeal the
dismissal of a habeas petition filed pursuant to 28 U.S.C. § 2241. Witham v. United States, 355 F.3d
501, 504 (6th Cir. 2004). Accordingly, Petitioner need not request one from this Court or the Sixth
Circuit should he seek to appeal this decision.
IT IS SO ORDERED.

S/Victoria A. Roberts
VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
Dated: February 24, 2017

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