Baumhover v. Terris

Filing 3

OPINION and ORDER dismissing without prejudice 1 Petition for Writ of Habeas Corpus Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT BAUMHOVER,
Petitioner,

Case No. 17-cv-13575
Hon. George Caram Steeh

v.
J.A. TERRIS,
Respondent.
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OPINION AND ORDER DISMISSING WITHOUT PREJUDICE
PETITION FOR A WRIT OF HABEAS CORPUS
Federal prisoner Robert Baumhover (“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.
Petitioner pleaded guilty in the United States District Court for the Northern
District of Iowa to child pornography charges under 18 U.S.C. §
2252A(a)(5)(B). He was sentenced on June 18, 2014, to 148 months
imprisonment and 10 years supervised release. Petitioner claims that he is
entitled to retroactive application of an amendment to the sentencing
guidelines. Because Petitioner has failed to demonstrate that his remedy
under 28 U.S.C. § 2255 is inadequate or ineffective, the petition will be
dismissed.
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I. Standard of Review
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.

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II. Discussion
Federal prisoners may bring a habeas corpus petition under § 2241
in the district where they are incarcerated if they are challenging the
execution of their sentences or the manner in which their sentences are
served. See United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001);
Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999). The primary
mechanism for challenging the legality of a federal sentence or for claiming
the right to be released as a result of an unlawful sentence, however, is to
file a motion to vacate, set aside, or correct the sentence under 28 U.S.C. §
2255 in the sentencing court. Terrell v. United States, 564 F.3d 442, 447
(6th Cir. 2009); see Peterman, 249 F.3d at 461; Charles, 180 F.3d at
755-56. Petitioner is challenging the legality of his sentence, as opposed
to, the execution or manner in which he is serving his sentence. Therefore,
the proper remedy for his claims is a motion to vacate, set aside, or correct
the sentence under § 2255.
The “savings clause” of § 2255 provides an exception to the rule that
federal prisoners must challenge the legality of their sentences in a § 2255
motion. The exception applies 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). It is the prisoner’s burden to prove the remedy under § 2255 is
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inadequate or ineffective. See Charles, 180 F.3d at 756. The remedy under
§ 2255 is not rendered inadequate or ineffective simply because, as here, a
petitioner has already been denied relief under § 2255, because the
petitioner has been denied permission to file a second or successive
motion to vacate, or because the petitioner has allowed the one-year
statute of limitations to expire. Id., at 756-58.
To date, the only circumstance in which the Sixth Circuit has
determined § 2255 to be an ineffective or inadequate remedy is when the
petition stated a facially valid claim for actual innocence. See Bannerman
v. Snyder, 325 F.3d 722, 724 (6th Cir. 2003); Peterman, 249 F.3d at 462
(“[C]laims do not fall within any arguable construction of [the savings clause
when] defendants have not shown an intervening change in the law that
establishes their actual innocence.”); see also Martin v. Perez, 319 F.3d
799, 803 (6th Cir. 2003). A valid assertion of actual innocence is more than
a declaration that the prisoner should be entitled to retroactive application
of an amendment to the sentencing guidelines. Rather, actual innocence
suggests an intervening change in the law that establishes a prisoner’s
actual innocence of the crime. See Martin, 319 F.3d at 804-05; Peterman,
249 F.3d at 462.

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“[A]ctual innocence means factual innocence, not mere legal
insufficiency.” Martin, 319 F.3d at 804 (quoting Bousley v. United States,
523 U.S. 614, 623 (1998)). In other words, Petitioner must point to a
decision holding that a substantive criminal statute no longer reaches
certain conduct, i.e., that he stands convicted of “an act that the law does
not make criminal.” Bousley, 523 U.S. at 620 (quoting Davis v. United
States, 417 U.S. 333, 346 (1974)); see also Bailey v. United States, 516
U.S. 137, 150-151 (1995) (prisoners convicted of “using” a firearm during a
drug crime or violent crime found themselves innocent when the Supreme
Court redefined “use” in a restrictive manner). Petitioner is not claiming to
be actually innocent of the underlying crime to which he pleaded guilty. In
the absence of such a claim of actual innocence, Petitioner does not allege
facts sufficient to fall within the savings clause of § 2255 and fails to show
that this statute affords an inadequate or ineffective remedy.
III. Conclusion
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).
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Accordingly, Petitioner need not request one from this Court or the Sixth
Circuit should he seek to appeal this decision.
IT IS SO ORDERED.
Dated: November 16, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
November 16, 2017, by electronic and/or ordinary mail and
also on Robert Baumhover, #13474-029, Milan Federal
Correctional Institution, Inmate Mail/Parcels, P.O. Box 1000,
Milan, MI 48160.
s/Barbara Radke
Deputy Clerk

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