Wells v. Terris

Filing 3

ORDER Summarily Dismissing the Habeas Petition 1 . Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMES O. WELLS,
Petitioner,
CASE NO. 17-12253
HONORABLE DENISE PAGE HOOD

v.
J.A. TERRIS,
Respondent.
___________________________/

ORDER SUMMARILY DISMISSING THE HABEAS PETITION
Petitioner James O. Wells, an inmate at the Federal Correctional Institution
in Milan, Michigan, recently filed a pro se petition for the writ of habeas corpus
under 28 U.S.C. § 2241. The pleading challenges Petitioner’s sentence of 293
months for conspiracy, bank robbery, carrying a firearm, and money laundering.
Because Petitioner has not shown that a motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255 is an inadequate or ineffective means for
challenging his sentence, the Court will summarily dismiss the petition.
I. Background
Petitioner alleges that, on August 26, 1997, he pleaded guilty to conspiracy,
18 U.S.C. § 371, bank robbery, 18 U.S.C. § 2113(d), carrying a firearm, 18 U.S.C.
§ 924(c) and money laundering, 18 U.S.C. § 1957. On April 2, 1998, United

States District Judge James T. Moody of the Northern District of Indiana sentenced
Petitioner to concurrent terms of 60 months in prison for the conspiracy and 233
months for the bank robbery. Petitioner received a consecutive mandatory
minimum sentence of 60 months in prison for carrying a firearm, making the total
sentence 293 months.1 Petitioner states that he did not appeal his convictions and
that he unsuccessfully sought post-conviction relief on a claim of ineffective
assistance of counsel.
Petitioner filed his habeas petition on July 6, 2017. His sole ground for
habeas relief reads:
When sentencing a defendant under 18 USC § 924(c) to consecutive
mandatory minimums[, a] court can consider reducing [the] sentence
for [the] underlying offense to as little as one day.
Pet. at 5.
The basis for Petitioner’s argument is the Supreme Court’s recent decision in
United States v. Dean, 137 S. Ct. 1170, 1176-77 (2017), which held that,
“[n]othing . . . prevents a sentencing court from considering a mandatory minimum
under § 924(c) when calculating an appropriate sentence for the predicate offense.”
Petitioner claims that, when he was sentenced, Judge Moody could not exercise his
sentencing discretion and consider Petitioner’s mandatory minimum sentence for

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Petitioner has not said what his sentence for money laundering was.
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the § 924(c) conviction when determining the appropriate sentence for the
underlying bank robbery. Petitioner seeks to have the Court order his release from
federal custody or to transfer his case to the Northern District of Indiana for a
hearing and a reduced sentence pursuant to the Supreme Court’s decision in Dean.
II. Analysis
On receipt of a habeas petition, a federal court must “promptly examine [the]
petition to determine ‘if it plainly appears from the face of the petition and any
exhibits annexed to it that the petitioner is not entitled to relief.’ ” Crump v. Lafler,
657 F.3d 393, 396 n.2 (6th Cir. 2011) (quoting Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts).2 “Federal courts are
authorized to dismiss summarily any habeas petition that appears legally
insufficient on its face . . . .” McFarland v. Scott, 512 U.S. 849, 856 (1994); see
also Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004) (stating that Rule 4
allows the summary dismissal of a petition if it plainly appears that the petitioner is
not entitled to relief).
The issue here is whether Petitioner may bring his sentencing claim under 28
U.S.C. § 2241. The Sixth Circuit recently reaffirmed that “[a] challenge to the
validity of a federal conviction or sentence is generally brought as a habeas corpus
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Under Rule 1(b) of the Rules Governing Section 2254 Cases, a district court may apply
the rules to a habeas corpus petition that was not filed under § 2254.
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petition pursuant to § 2255, while a petition concerning the manner or execution of
a sentence is appropriate under § 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).
Petitioner 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
§ 2255. He may bring his claim under § 2241 only if his claim falls within the
“savings clause” of § 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 § 2255 is
inadequate and ineffective are narrow.” Peterman, 249 F.3d at 461. . .
. [Section] 2255 is not “inadequate or ineffective” merely because
habeas relief has previously been denied, a § 2255 motion is
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procedurally barred, or the petitioner has been denied permission to
file a successive motion. Charles, 180 F.3d at 756.
Hill, 836 F.3d at 594.
“On a successive challenge to a conviction, a petitioner may test the legality
of his detention under § 2241 through the § 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 § 2255. The Sixth Circuit held that a federal
prisoner could bring a habeas petition under § 2241 to challenge his enhanced
sentence as a career offender. But the Sixth Circuit limited its decision to
a narrow subset of § 2241 petitions: (1) prisoners who were sentenced
under the mandatory guidelines regime pre-United States v. Booker,
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543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (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.
Petitioner 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 § 2255. But Petitioner is not challenging a careeroffender enhancement to his sentence. Instead, he is challenging the trial judge’s
failure to consider his mandatory consecutive sentence under § 924(c) when
deciding the length of Petitioner’s sentence for bank robbery. And “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-cv11771, 2017 WL 3017536, at *2 (E.D. Mich. July 17, 2017) (unpublished).
Petitioner’s claim does not come within Hill’s limited exception for bringing
a § 2241 habeas petition to challenge a federal sentence, and because Petitioner is
not claiming to be actually innocent of the crimes for which he is incarcerated, his
remedy under § 2255 is not inadequate or ineffective. The Court, therefore,
summarily DISMISSES the petition without prejudice.

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Petitioner 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 § 2241 cases “where detention is pursuant to federal process.”
Witham v. United States, 355 F.3d 501, 504 (6th Cir. 2004).

s/Denise Page Hood
DENISE PAGE HOOD
CHIEF UNITED STATES DISTRICT JUDGE
Dated: August 31, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of record on
August 31, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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