Sargent v. Terris

Filing 3

ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

VICTOR SARGENT,
Case Number: 17-13935
HONORABLE AVERN COHN

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

ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE OF APPEALABILITY
I. Introduction
This is a habeas case under 28 U.S.C. § 2241. Petitioner Victor Sargent
(Petitioner), is a federal prisoner challenging a sentence enhancement. Because, as
will be explained, Petitioner is not entitled to relief under § 2241, the petition will be
dismissed.
II. Legal Standard
Rule 4, Rules Governing Section 2254 Cases, provides that the Court shall
promptly examine a petition to determine “if it plainly appears from the face of the
petition and any attached exhibits that the petitioner is not entitled to relief.” If the Court
determines that the petitioner is not entitled to relief, the petition shall be dismissed.
McFarland v. Scott, 512 U.S. 849, 856 (1994).
III. Background
Petitioner pleaded guilty in the Northern District of Illinois to three counts of bank
robbery, 18 U.S.C. § 2113(a). In 2015, he was sentenced to three concurrent

sentences of 78 months’ imprisonment, to be followed by three years supervised
release. In 2016, Petitioner filed a motion to vacate, set aside, or correct sentence
under 28 U.S.C. § 2255, arguing that the Supreme Court’s ruling in Johnson v. United
States, — U.S. —, 135 S. Ct. 2551 (2015), bank robbery failed to qualify as a crime of
violence and he was entitled to resentencing. The district court denied the motion
because it was not timely filed. See 6/26/17 Order, United States v. Sargent, No. 1:16cv-09210, (Doc. 10).
In 2017, Petitioner filed this instant petition in this district challenging his
sentence under 28 U.S.C. § 2241.
IV. Discussion
Petitioner challenges two sentencing enhancements based upon the use and
brandishing of a dangerous weapon. He argues that in both cases a BB gun was the
weapon at issue and that a BB gun fails to qualify as a dangerous weapon. He
maintains that he is therefore innocent of these sentencing enhancements.
A prisoner generally may challenge his federal conviction or sentence only by
means of a § 2255 motion. See Hill v. Masters, 836 F.3d 591, 594 (6th Cir. 2016). A
writ of habeas corpus under § 2255 requires the petitioner to file his challenge in the
district that imposed the criminal sentence on him. See 28 U.S.C. § 2255(a).
Here, Petitioner is clearly attacking his sentence, which would be proper under
§ 2255, not § 2241.
As to § 2241, a federal prisoner may bring a claim challenging his conviction or
the imposition of sentence only if it appears that the remedy under § 2255 is inadequate
or ineffective to test the legality of his detention. Charles v. Chandler, 180 F.3d 753,
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756 (6th Cir.1999). Habeas corpus is not an “additional, alternative, or supplemental
remedy” to the motion to vacate, set aside, or correct the sentence. Id. at 758.
Petitioner has not shown that the remedy under § 2255 is inadequate. He does
not argue that he is innocent of the crime of conviction. Instead, he argues that he is
innocent of the dangerous weapon enhancement. In 2016, the Sixth Circuit created a
narrow exception, allowing a petitioner to challenge a sentence under § 2241, only
where: (1) the petitioner’s sentence was imposed pre-Booker, when the Sentencing
Guidelines were mandatory; (2) the petitioner was foreclosed from asserting the claim in
a successive petition under § 2255; and (3) after the petitioner’s sentence became final,
the Supreme Court issued a retroactively applicable decision establishing that – as a
matter of statutory interpretation – a prior conviction used to enhance his federal
sentence no longer qualified as a valid predicate offense. Hill v. Masters, 836 F.3d 591
599-600 (2016). Petitioner fails to satisfy the first requirement because he was
sentenced after the Booker decision. Thus, his claims are outside the narrow exception
in Hill. As such, the petition under § 2241 is DISMISSED.
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: 1/25/2018

Dated:
Detroit, Michigan

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