Lane v. Terris

Filing 4

OPINION AND ORDER SUMMARILY DISMISSING CASE AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARK ALAN LANE,
Petitioner,
Case No. 2:17-cv-12436
Honorable Victoria A. Roberts

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

OPINION AND ORDER SUMMARILY DISMISSING THE PETITION
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner Mark A. Lane, a federal prisoner proceeding pro se, seeks a writ of
habeas corpus under 28 U.S.C. § 2241. Petitioner alleges in his petition that (1) his
detention is illegal due to an invalid sentence, (2) the judgment and commitment order
in his criminal case is void, (3) his sentence is cruel and unusual punishment under the
Eighth Amendment, and (4) he is entitled to have false information in his pre-sentence
report and his judgment and commitment order expunged. Because Petitioner has
failed to show that a motion to vacate, set aside, or correct the sentence under 28
U.S.C. § 2255 is an inadequate or ineffective remedy for his claims, the Court dismisses
the habeas petition without prejudice.
I. Background
The petition and attachments indicate that, on September 10, 2001, Petitioner
pleaded guilty, as charged, to: (1) one count of conspiracy to possess with intent to
distribute and to distribute methamphetamine, see 21 U.S.C. §§ 841(a)(1) and 846, and
(2) one count of conspiracy to launder monetary instruments, 18 U.S.C. §§

1956(a)(1)(A)(i) and 1956(h). On February 28, 2002, United States District Judge
Richard L. Young of the Southern District of Indiana sentenced Petitioner to concurrent
terms of 360 months (thirty years) in prison for the methamphetamine conviction and
240 months (twenty years) in prison for the money-laundering conviction, followed by
five years of supervised release. On appeal, Petitioner challenged the trial court’s
imposition of a three-level upward adjustment under U.S.S.G. § 3B1.1(b) for his
aggravating role in the offense. The United States Court of Appeals for the Seventh
Circuit affirmed the sentence imposed by Judge Young. See United States v. Lane, 52
F. App’x 838 (7th Cir. 2002).
Petitioner filed a motion to vacate, set aside, or correct his sentence under §
2255, but the trial court dismissed his motion. See United States v. Lane, Nos.
EV0103CR01-YH, 3:04CV0037, 2005 WL 1421496 (S.D. Ind. June 16, 2005)
(unpublished). Since 2010, Petitioner has filed numerous other motions, which attacked
the trial court’s jurisdiction and sought discharge of the judgment. The Seventh Circuit
fined Petitioner in 2014 and barred him from filing any additional civil suits in the courts
of that circuit until Petitioner paid the fine. See Lane v. Maye, No. 16-3056-JWL, 2016
WL 913140, at *1 n.1 (D. Kan. Mar. 9, 2016) (unpublished).
In 2016, Petitioner filed a habeas corpus petition under 28 U.S.C. § 2241, which
the District of Kansas dismissed without prejudice for lack of jurisdiction. See id. The
Tenth Circuit affirmed the district court’s decision. See Lane v. Maye, 667 F. App’x 698
(10th Cir. 2016). Finally, On July 24, 2017, Petitioner filed his habeas petition in this
district.

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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) (quotation marks omitted). And if the petition appears legally
insufficient on its face, a federal court may summarily dismiss the petition. McFarland v.
Scott, 512 U.S. 849, 856 (1994).
The issue here is whether Petitioner may bring his claims 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 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)); accord Terrell v. United States, 564 F.3d
442, 447 (6th Cir. 2009)(stating that “[s]ection 2255 provides the primary avenue of
relief for federal prisoners ‘claiming the right to release’ as a result of an unlawful
sentence”) (quoting 28 U.S.C. § 2255(a)); Charles v. Chandler, 180 F.3d 753,755-56
(6th Cir. 1999) (noting 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 and end citations omitted).

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Petitioner’s grounds for relief challenge his federal sentence, as opposed to the
execution or manner in which he is serving his sentence. As such, the proper remedy
for his claims is a motion to vacate, set aside, or correct the sentence under § 2255.
Petitioner may bring his claims under § 2241 only if the claims fall 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).
Petitioner appears to allege that § 2255 is inadequate because it limits the
number of motions that a prisoner may file. See Pet., page 5, ¶ 10(c). It is true that
prisoners are limited in their ability to file multiple motions under § 2255. A second or
successive motion must be based on “newly discovered evidence” or “a new rule of
constitutional law made retroactive to cases on collateral review.” 28 U.S.C. § 2255(h).
But “§ 2255 is not ‘inadequate or ineffective’ merely because habeas relief has
previously been denied, a § 2255 motion is procedurally barred, or the petitioner has
been denied permission to file a successive motion.” Hill, 836 F.3d at 594 (citing
Charles, 180 F.3d at 756). Thus, § 2255 is not inadequate or ineffective simply
because Petitioner has already filed one or more unsuccessful motions under § 2255.
The savings clause of § 2255(e) can apply when a petitioner makes a claim of
actual innocence, Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir. 2003), but the
Supreme Court has stated that “ ‘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

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does not make criminal.’ ” Id. at 620 (quoting Davis v. United States, 417 U.S. 333, 346
(1974)). Or, as explained in Hill,
[w]here a petitioner asserts factual innocence of his crime of conviction
due to a change of law, he may show that his remedy under § 2255 is
inadequate or ineffective by satisfying four conditions: (1) “the existence of
a new interpretation of statutory law,” (2) “issued after the petitioner had a
meaningful time to incorporate the new interpretation into his direct
appeals or subsequent motions,” (3) that is retroactive, and (4) applies to
the petition’s merits such that it is “more likely than not that no reasonable
juror would have convicted” the petitioner.
Hill, 836 F.3d at 594–95 (quoting Wooten v. Cauley, 677 F.3d 307-08 (6th Cir. 2012)).
Petitioner is not claiming to be actually innocent of the crimes for which he is
incarcerated, and he is not relying on a new and retroactive interpretation of the law
which demonstrates that he stands convicted of an act that the law does not make
criminal. Therefore, he may not take advantage of § 2255’s savings clause for claims of
actual innocence.
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, under certain
circumstances, career offenders may bring a habeas petition under § 2241 to challenge
an enhanced sentence. See Hill, 836 F.3d at 595. This ruling, however, has no
application here because Petitioner was not sentenced as a career offender.
III. Conclusion
To summarize, the proper remedy for a challenge to the lawfulness of a federal
sentence is to file a motion to vacate, set aside, or correct the sentence under 28 U.S.C.
§ 2255. A prisoner may file a habeas petition under 28 U.S.C. § 2241 only when the
remedy under § 2255 is inadequate or ineffective, such as when the petitioner makes a
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claim of actual innocence or was sentenced as a career offender and satisfies the
conditions set forth in Hill. Petitioner has not demonstrated that, due to an intervening
change in the law, he is actually innocent of the crime for which he is incarcerated, and
the rule applying the savings clause to career offenders, as set forth in Hill, does not
apply to his case. Therefore, Petitioner’s remedy under § 2255 is not inadequate or
ineffective, and the Court summarily DISMISSES the petition without prejudice.
If Petitioner decides to appeal this decision, he is not required to apply for a
certificate of appealability because “the statutory language imposing the certificate-ofappealability requirement clearly does not extend to cases where . . . detention arose
out of federal process but the proceeding is not under § 2255.” Witham v. United
States, 355 F.3d 501, 504 (6th Cir. 2004). The Court, moreover, declines to grant leave
to appeal in forma pauperis because an appeal could not be taken in good faith. 28
U.S.C. § 1915(a)(3).

S/Victoria A. Roberts
VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
Dated: October 6, 2017

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