Bennett v. Terris
Filing
6
MEMORANDUM OPINION and ORDER Dismissing 1 Petition for Writ of Habeas Corpus. Signed by District Judge Arthur J. Tarnow. (CPic)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DONALD BENNETT,
Petitioner,
Case No. 2:17-cv-11251
Hon. Arthur J. Tarnow
v.
J.A. TERRIS,
Respondent.
________________________________________/
OPINION AND ORDER DISMISSING PETITION FOR A WRIT OF
HABEAS CORPUS
Federal prisoner Donald Bennett (“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
sentence.
I. Background
Bennett was convicted in 1989 in the United States District Court for the
Northern District of Illinois of conspiracy to commit bank robbery, five counts of bank
robbery, and five counts of using a firearm during the commission of a crime of
violence. 18 U.S.C. § 924(c). Several of the bank robberies and firearm offenses
were committed prior to December 1, 1987, the effective date of the Sentencing
Reform Act. See Bennett v. Terris, 2014 WL 128291, *1 (E.D. Mich. Jan. 14, 2014).
As a result of his convictions, Bennett was sentenced to five concurrent terms
of 60 months for the conspiracy and robbery convictions, a mandatory consecutive
Bennett v. Terris, No. 17-11251
sentence of five years for the one of the firearm convictions, and to four mandatory
consecutive ten year sentences for the other firearm convictions. Bennett’s
convictions and sentences were affirmed by the United States Court of Appeals for
the Seventh Circuit. United States v. Bennett, 908 F.2d 189, 194 (7th Cir. 1990).
II. Discussion
Bennett brings this action as a habeas petition under 28 U.S.C. § 2241. He
asserts that he is entitled to relief in light of the recent Supreme Court decision in
Dean v. United States, 137 S. Ct. 1170, 1174 (Apr. 3, 2017). Dean interpreted the
mandatory consecutive requirement of section 924(c), and it held that “in calculating
the sentence” for the predicate offense, a judge need not “ignore the fact that the
defendant will serve the mandatory minimums imposed under section 924(c).” Dean
found that a sentencing judge has discretion to consider the total sentence to be
served by a defendant, including the mandatory minimum sentences for section
924(c) convictions, when it determines the length of sentences for convictions that
do not have mandatory minimums. Bennett argues that he is entitled to retroactive
application of Dean in this section 2241 proceeding because the limitations imposed
on filing successive section 2255 proceedings prevent him from filing for relief in the
trial court.
Bennett is not entitled to application of Dean in this action. “A challenge to the
validity of a federal conviction or sentence is generally brought as a habeas corpus
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petition pursuant to section 2255, while a petition concerning the manner or
execution of a sentence is appropriate under section 2241.” Hill v. Masters, 836 F.3d
591, 594 (6th Cir. 2016) (citing United States v. Peterman, 249 F.3d 458, 461 (6th
Cir. 2001)); see also Charles v. Chandler, 180 F.3d 753,755-56 (6th Cir.
1999)(noting that “courts 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 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")
(internal citations omitted).
Bennett is challenging the legality of his sentence as opposed to the execution
or manner in which he is serving his sentence. As such, the proper remedy for his
claim is a motion to vacate, set aside, or correct the sentence under section 2255.
He may bring his claim under section 2241 only if his claim falls within the “savings
clause” of section 2255, which permits a prisoner to apply for the writ of habeas
corpus when it “appears that the remedy by motion is inadequate or ineffective to
test the legality of his detention.” 28 U.S.C. § 2255(e).
The petitioner carries the burden to establish that the savings clause applies
to his petition and “[t]he circumstances in which section 2255 is inadequate and
ineffective are narrow.” Peterman, 249 F.3d at 461. . . . section 2255 is not
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“inadequate or ineffective” merely because habeas relief has previously been
denied, a section 2255 motion is procedurally barred, or the petitioner has been
denied permission to file a successive motion. Charles, 180 F.3d at 756.
“On a successive challenge to a conviction, a petitioner may test the legality
of his detention under section 2241 through the section 2255(e) savings clause by
showing that he is ‘actually innocent.’” Id. (emphasis in original); see also
Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir. 2003)(“The savings clause may
only be applied when the petitioner makes a claim of actual innocence.”); Peterman,
249 F.3d at 462 (concluding that the defendants’ claims did not fall within any
arguable construction of the “savings clause” because they did not show an
intervening change in the law that established their actual innocence). But “‘actual
innocence’ means factual innocence, not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 614, 623 (1998)). The petitioner must point to a decision
demonstrating that he “stands convicted of ‘an act that the law does not make
criminal.’” Id. at 620 (quoting Davis v. United States, 417 U.S. 333, 346 (1974)).
In Hill, the Sixth Circuit considered another basis for testing the legality of
detention using the savings clause of section 2255. The Sixth Circuit held that a
federal prisoner could bring a habeas petition under section 2241 to challenge his
enhanced sentence as a career offender. But the Sixth Circuit limited its decision to
a narrow subset of section 2241 petitions: (1) prisoners who were sentenced under
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the mandatory guidelines regime pre-United States v. Booker, 543 U.S. 220 (2005),
(2) who are foreclosed from filing a successive petition under § 2255, and (3) when
a subsequent, retroactive change in statutory interpretation by the Supreme Court
reveals that a previous conviction is not a predicate offense for a career-offender
enhancement. Hill, 836 F.3d at 599-600.
Here, Bennett was sentenced before Booker made the sentencing guidelines
advisory rather than mandatory, and he may be foreclosed from filing a successive
motion to vacate sentence under section 2255. But Bennett cannot satisfy the third
requirement. Bennett is not challenging a career-offender enhancement to his
sentence. Instead, he is challenging the trial judge's failure to consider his
mandatory consecutive sentence under section 924(c) when deciding the length of
his sentence. “There is nothing in the Supreme Court’s opinion in Dean to suggest
that the holding is to be applied retroactively to cases on collateral review.” Simmons
v. Terris, No. 17-cv-11771, 2017 U.S. Dist. LEXIS 110028, 2017 WL 3017536, at *2
(E.D. Mich. July 17, 2017) (unpublished).
Accordingly, Bennett’s claim does not come within Hill’s limited exception for
bringing a section 2241 habeas petition to challenge a federal sentence, and
because he is not claiming to be actually innocent of the crimes for which he is
incarcerated, his remedy under section 2255 is not inadequate or ineffective. The
Court, therefore, dismisses his section 2241 petition.
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III. Conclusion
The petition is dismissed. Bennett may proceed in forma pauperis if he
appeals this decision because an appeal could be taken in good faith. 28 U.S.C. §
1915(a)(3). He is not required to apply for a certificate of appealability because
certificates of appealability are not needed in section 2241 cases “where detention
is pursuant to federal process.” Witham v. United States, 355 F.3d 501, 504 (6th Cir.
2004).
IT IS SO ORDERED.
S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: October 12, 2017
I hereby certify that a copy of the foregoing document was served upon
parties/counsel of record on October 12, 2017, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant
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