Jones v. Terris

Filing 3

OPINION AND ORDER Dismissing 1 Petition for Writ of Habeas Corpus filed by Tommy Jones. Signed by District Judge David M. Lawson. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TOMMY E. JONES,
Petitioner,

Case Number: 18-10357
Honorable David M. Lawson

v.
WARDEN J.A. TERRIS,
Respondent.
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OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Tommy E. Jones, currently confined at the Federal Correctional Institution in
Milan, Michigan, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241. Jones
seeks relief from his federal criminal sentence, imposed by the United States District Court for the
Northern District of Illinois. Jones has not demonstrated that his remedy under 28 U.S.C. § 2255
is inadequate or ineffective. Therefore, Jones improperly has filed this action under section 2241
and the Court will dismiss it.
I.
The United States Court of Appeals for the Seventh Circuit summarized the circumstances
surrounding Jones’s prosecution and convictions:
Between February 2000 and January 2001, Tommy E. Jones conspired with others
to distribute, and possessed with the intent to distribute, cocaine and cocaine base in
the Rockwell Gardens public housing building located at 340 South Western Avenue
(the 340 Building) in Chicago, Illinois. During that time, narcotic sales in the 340
Building were controlled by the Gangster Disciples, a street gang to which Jones
belonged.
Law enforcement authorities, including agents from the Department of Housing and
Urban Development (HUD), conducted an investigatory operation at the Rockwell
Gardens public housing complex from March 2000 through January 21, 2001.
During this period of time, law enforcement agents surveilled the gang’s activities

and conducted controlled buys that yielded more than 100 grams of crack cocaine.
In the early afternoon of May 2, 2000, Jones sold crack cocaine to a federal agent in
a stairwell of the 340 Building. Special Agent Kenneth Popovits, from HUD, posed
as a laborer from Indiana wanting to purchase crack for redistribution. Working with
a confidential informant (CI), Agent Popovits entered the 340 Building after
informing a gang sentry of their supposed intentions. The gang member directed
them to the building lobby, where Popovits and the CI were searched and redirected
to a stairwell.
When Agent Popovits and the CI got to the stairwell, they encountered and
negotiated with three men. Popovits recognized two of the men: Michael Zolicoffer
and the defendant. Zolicoffer he knew from prior transactions, but Jones he
recognized from intelligence photos of individuals that frequented the area. Popovits
told the men that he and the CI each wanted to buy ten bags of crack cocaine. (Each
bag contained one rock of crack and was valued at ten dollars.) The unknown third
man provided the first six bags to the CI, but turned to Jones to satisfy the remainder
of the request. Jones completed the CI’s order and then asked Popovits how much
crack he still needed. Popovits told him ten. Jones then handed him ten small black
bags of crack from a larger baggy. Popovits paid him $100 for his ten bags and he
and the CI then left the 340 Building. The drugs obtained from Jones tested positive
for 4.2 grams of cocaine base.
On the afternoon of the purchase, Agent Popovits prepared a report of the
transaction. In it, he described Jones as FNU LNU No.17 (First-Name-Unknown
Last-Name-Unknown): black male, six feet, one inch tall, weighing 175 lbs. A few
days after his report, Popovits identified Jones in his operation’s “intelligence file.”
The file contained photos of Rockwell Gardens’ residents that had previously been
arrested . . . Popovits then gave Jones’s photograph to fellow agent Fount Hankle,
who placed it in a spread of four other men. Agent Popovits again picked Jones. He
was one-hundred percent certain that Jones was the second man in the stairwell
during the May 2 drug purchase. This entire identification process took place outside
of the CI’s presence.
On September 17, 2002, Jones and several co-defendants were charged in a criminal
complaint for conspiracy to distribute heroin, cocaine, and cocaine base in violation
of 21 U.S.C. § 846. A grand jury returned an indictment against Jones on January
16, 2003, charging him with one count of conspiracy to distribute crack cocaine
within 1000 feet of a public housing complex, 21 U.S.C. § 846, and one count of
distribution of crack cocaine within 1000 feet of a public housing complex, 21
U.S.C. § 841(a)(1). A superseding indictment was returned with the same charges
on August 21, 2003.
Following the initial indictment, a federal detainer was lodged against Jones on
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October 29, 2002. The detainer was served at Illinois River Correctional Center in
Canton, Illinois, where Jones was serving time for a state conviction. The purpose
of the notice was twofold: it advised Jones that he was wanted for trial on the federal
charge, and it allowed him to demand a speedy trial. Jones executed the document
on November 19, 2002, and delivered it to the warden of his holding institution. He
was produced for trial on August 21, 2003.
At trial, the government called four witnesses: Charles Butts, Jerry Harrington,
Willie Mobley, and Michael Zolicoffer. All four men testified that Jones was a
fellow member of the Gangster Disciples and that he sold crack cocaine on a daily
basis at the 340 Building during the spring of 2000. Further, testimony was
introduced that he was known to sell crack between late 1999 and mid-year 2000.
Harrington, Mobley, and Zolicoffer also stated that all gang members participated
in Nation’s Work, which involved selling drugs for the collective benefit of the
organization. Additionally, Butts, Harrington, and Zolicoffer testified that all gang
members, including the defendant, were required to attend gang meetings and work
security at the 340 Building. Butts and Zolicoffer attended these meetings with the
defendant between 1999 and 2000.
Aside from the drug sales, Jones occupied a position of authority within the Gangster
Disciples. Harrington, Mobley, and Zolicoffer testified that Jones was a Regent,
explaining that he was responsible for managing security assignments within the
gang and leading meetings. Harrington also testified that he sold crack cocaine for
Jones in February 2000. During the entire month, Jones supplied Harrington with
36 dime bags of crack per day. (A dime bag cost $10 and contained one rock of
crack.) Harrington sold Jones’s supply at night and Jones sold during the day. For
each set of 36 bags that Harrington sold, he paid $300 back to Jones and kept $60 for
himself.
On February 17, 2004, the jury found Jones guilty on both counts charged in the
superseding indictment . . . On January 28, 2005, Jones was sentenced to 300 months
in custody.
United States v. Jones, 454 F.3d 642, 645-646 (7th Cir. 2006).
On direct appeal, Jones challenged the timeliness of his trial, Agent Popovits’s identification
procedure, the district court’s jury instructions, and the findings made at his sentencing. The
Seventh Circuit affirmed the convictions. Ibid.
Jones filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 in the
Northen District of Illinois, raising four claims for relief. The court denied the motion. United

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States v. Jones, No. 1:07-cv-06379, ECF No. 18 (N.D. Ill. Jan. 13, 2009). Jones attempted to appeal
this decision, but the Seventh Circuit denied his application for a certificate of appealability. Jones
v. United States, No. 09-1949 (7th Cir. Aug. 20, 2009).
In 2015, Jones filed an application under 28 U.S.C. § 2244(b)(3), seeking authorization to
file a successive motion to vacate under section 2255. He argued that, “after he was sentenced in
federal court for participating in a narcotics conspiracy, but before briefing on his appeal was
complete, a state court vacated his conviction for sexually abusing a minor.” Jones v. United States,
No. 15-1119, ECF No. 2 (7th Cir. Feb. 6, 2015). Jones argued that the state decision vacating the
sex-abuse conviction was new evidence of his actual innocence of being a career offender. Ibid.
The Seventh Circuit denied the application because “Jones was not sentenced as a career offender”
and because the fact upon which Jones’s claim relied was not new and had been argued by Jones on
direct appeal. Ibid.
In 2016, Jones filed another application seeking authorization to file a successive motion to
vacate under section 2255. He again sought to raise a claim that the district court relied on a
conviction that subsequently was vacated when determining his sentence. Jones v. United States,
No. 16-3243, ECF No. 4 (7th Cir. Sept. 19, 2016). The Seventh Circuit denied the application. Ibid.
Jones then filed the present section 2241 petition, again arguing that his vacated sexual abuse
conviction rendered him actually innocent of the career offender sentencing enhancement.
II.
Jones contends that he was sentenced improperly as a career offender under the United States
Sentencing Guidelines. A prisoner generally may challenge his federal conviction or sentence only
by means of a motion under 28 U.S.C. § 2255. See Hill v. Masters, 836 F.3d 591, 594 (6th Cir.

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2016). A motion under section 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). A petition challenging the manner
or execution of a sentence is appropriate under section 2241. Hill, 836 F.3d at 594. In this case,
Jones is attacking his sentence, but is doing so under section 2241.
Jones argues that the Sixth Circuit’s decision in Hill allows the petition to be filed under
section 2241 because he alleges actual innocence. Section 2255’s “savings clause” permits a
petitioner to file a habeas corpus petition challenging his conviction under section 2241 rather than
section 2255 only if it appears that the remedy afforded under section 2255 is inadequate or
ineffective to test the legality of his detention. Hill, 836 F.3d at 594; see also Charles v. Chandler,
180 F.3d 753, 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.
Section 2255 is not inadequate or ineffective simply because the sentencing court denied
relief and the petitioner seeks to relitigate a claim already decided. See Adderly v. Zickefoose, 459
F. App’x 73, 75 (3d Cir. 2012) (finding no basis for application of the savings clause when petitioner
simply sought to relitigate the issue of a sentence enhancement); Crosby v. Brook, 353 F. App’x 591,
593 (2d Cir. 2009) (holding that section 2255’s savings clause was not invoked where the petition
was an attempt to relitigate issues previously decided by other courts); Ceballos Torres v. United
States, 83 F. App’x 609 (5th Cir. 2003) (same). Jones’s claim that the sentencing court relied on a
subsequently overturned conviction was raised and denied on direct appeal. He also raised the claim
in seeking authorization to file a successive section 2255 petition. He may not relitigate the claim
here under section 2241 simply because he has not received the desired result.

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III.
Because Jones has not shown that his remedy under 28 U.S.C. § 2255 is inadequate or
ineffective, he is not entitled to habeas relief under 28 U.S.C. § 2241.
Accordingly, it is ORDERED that the petition for a writ of habeas corpus [dkt. #1] is
DISMISSED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: April 13, 2018

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on April 13, 2018.
s/Susan Pinkowski
SUSAN PINKOWSKI

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