Dennis v. Terris

Filing 8

Opinion and Order Dismissing Without Prejudice Petition for A Writ of Habeas Corpus. Signed by District Judge Victoria A. Roberts. (LVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
QUINCY DENNIS,

Petitioner,

Case No. 2:17-cv-14087
Hon. Victoria A. Roberts

v.
J.A. TERRIS,
Respondent.
___________________________________/
OPINION AND ORDER DISMISSING WITHOUT PREJUDICE PETITION FOR A
WRIT OF HABEAS CORPUS
Federal prisoner Quincy Dennis (“Petitioner”), currently confined at the Federal Correctional
Institution in Milan, Michigan, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2241. Petitioner was convicted in the United States District Court for the Southern District of Ohio
of possession with intent to distribute in excess of 50 grams of cocaine base, attempting to do the
same, 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii), and § 846, and possession with intent to distribute in
excess of 500 grams of cocaine. 21 U.S.C. § 841(a)(1), and (b)(1)(B)(ii). Dkt. 1, Page ID 63-64.
Because Petitioner had two prior Ohio convictions for felony drug offenses, the district court
imposed a mandatory life sentence on the first two counts, and a mandatory minimum sentence of
30 years’ imprisonment on count three. Id. at 53, 56, 59-62, 64-66.
Petitioner’s conviction was affirmed on direct review. United States v. Dennis, 178 F.3d
1297 (6th Cir. 1999) (unpublished).
President Barack Obama commuted Petitioner’s sentence to a total term of 360 months’
imprisonment on January 17, 2017. Dkt. 5, Exhibit 3.

I. Standard of Review
The Court undertakes 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;
Perez v. Hemingway, 157 F. Supp. 2d 790, 796 (E.D. Mich. 2001) (discussing authority of federal
courts to summarily dismiss § 2241 petitions). If 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). After undertaking such review, the Court concludes that the petition must be
dismissed.
II. Discussion
Petitioner raises three claims in his petition, all challenging his original sentence: (1) one of
Petitioner’s prior Ohio narcotic convictions should not have counted as a felony drug offense for
sentence enhancement purposes, (2) the term “felony drug offense” in 21 U.S.C. § 802(44) is
unconstitutionally vague, and (3) Petitioner’s prior Ohio conviction matches the federal
misdemeanor offense of simple possession. Petitioner has also filed a motion to amend his petition
to add a fourth claim: (4) Petitioner is actually innocent of being a chapter four career offender.
The petition must be dismissed because all of Petitioner’s claims attack his original
sentences which were commuted by the President. This Court has no jurisdiction to consider a
collateral attack on a sentence imposed by executive order. Article II, § 2 of the United States
Constitution provides that the President “shall have Power to grant Reprieves and Pardons for
Offences against the United States, except in Cases of Impeachment.” The Supreme Court has
interpreted the “broad power” conferred by the Constitution “to allow plenary authority in the
President to ‘forgive’ the convicted person in part or entirely, to reduce a penalty in terms of a
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specified number of years, or to alter it with conditions which are in themselves constitutionally
unobjectionable.” Schick v. Reed, 419 U.S. 256, 266 (1974). The Schick Court held that “the
pardoning power is an enumerated power of the Constitution and that its limitations, if any, must
be found in the Constitution itself.” Id. Therefore, this Court has no jurisdiction to consider the
propriety of the 360 month sentence set by the President.
In any event, Petitioner’s challenge to his original life sentence is now moot because he is
no longer serving that sentence. Any opinion rendered by this Court as to the validity of the original
sentence would be nothing more than an advisory opinion. Article III, §2 limits the jurisdiction of
a federal court to live “Cases” and “Controversies.” “[C]ases that do not involve ‘actual, ongoing
controversies’ are moot and must be dismissed for lack of jurisdiction.” Federation of Advertising
Industry Representatives v. Chicago, 326 F.3d 924, 929 (7th Cir. 2014) (en banc) (holding
presidential commutation rendered an inmate’s § 2241 application moot).
III. Conclusion
Accordingly, Petitioner’s motion to for leave to file amended petition [Dkt. 7] is
GRANTED.
The petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE.
Finally, 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).
IT IS SO ORDERED.
s/ Victoria A. Roberts
Honorable Victoria A. Roberts
United States District Judge

Dated: 8/9/18

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The undersigned certifies that a copy of this
document was served on the attorneys of record
and Quincy Dennis by electronic means or U.S.
Mail on August 9, 2018.
s/Linda Vertriest
Deputy Clerk

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