Delgrosso v. Hemingway
CORRECTED OPINION and ORDER SUMMARILY DISMISSING THE HABEAS PETITION 1 , DENYING THE DEMANDS FOR DISMISSAL 5 AND FOR SUMMARY JUDGMENT 7 ,DENYING AS MOOT THE MOTION FOR A STATUS UPDATE 8 , DENYING THE PETITION TO VACATE 11 AND THE REQUEST FOR A CHANGE OF VENUE 13 , DENYING WITHOUT PREJUDICE THE MOTION TO SHOW CAUSE 15 AND MOTION FOR ORDER TO SHOW CAUSE 17 , DENYING AS MOOT PETITIONS [18, 19], AND DENYING WITHOUT PREJUDICE MOTION TO DISMISS 27 , Signed by District Judge Judith E. Levy. (WBar)
Case 5:22-cv-10158-JEL-DRG ECF No. 30, PageID.212 Filed 01/19/23 Page 1 of 12
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 22-10158
Judith E. Levy
United States District Judge
OPINION AND ORDER SUMMARILY DISMISSING THE
HABEAS PETITION , DENYING THE DEMANDS FOR
DISMISSAL  AND FOR SUMMARY JUDGMENT ,
DENYING AS MOOT THE MOTION FOR A STATUS UPDATE ,
DENYING THE PETITION TO VACATE  AND THE
REQUEST FOR A CHANGE OF VENUE , DENYING
WITHOUT PREJUDICE THE MOTION TO SHOW CAUSE 
AND MOTION FOR ORDER TO SHOW CAUSE , DENYING
AS MOOT PETITIONS [18, 19], AND DENYING WITHOUT
PREJUDICE MOTION TO DISMISS 
Petitioner Philip Delgrosso is a federal inmate currently
incarcerated at the Federal Correctional Institution in Milan, Michigan
(“FCI-Milan”). In January 2022, Petitioner filed a pro se petition for a
writ of habeas corpus pursuant to the All Writs Act, 28 U.S.C. § 1651,
and the “savings clause” of 28 U.S.C. § 2255. (See ECF No. 1, PageID.21.)
The habeas petition and several subsequent documents address
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Petitioner’s federal convictions in the United States District Court for the
Western District of Missouri.
In an additional document entitled “Demand to Show Cause” (ECF
No. 15), Petitioner raises new issues about the alleged failure of federal
prison officials to timely process Petitioner’s request for early release to
home confinement or a halfway house pursuant to the First Step Act
(FSA). Petitioner also asserts in the Demand to Show Cause that the
officials ultimately denied his request for home confinement and are
delaying his placement in a halfway house. Petitioner then filed a
document asking the Court to order Respondents to comply with
Petitioner’s show cause demand. (ECF No. 17.) Lastly, Petitioner filed a
motion seeking to have the Court dismiss his demand that Respondents
provide him with an MRI. (ECF No. 27.) In that filing, Petitioner
acknowledges that Respondents provided Petitioner a MRI. (Id.)
“Federal courts are authorized to dismiss summarily any habeas
petition that appears legally insufficient on its face,” McFarland v. Scott,
512 U.S. 849, 856 (1994), and the Court concludes that the All Writs Act
is not a proper remedy for Petitioner’s challenge to his federal convictions
or the execution of his sentence. Additionally, because Petitioner has not
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shown that 28 U.S.C. § 2255 is an inadequate or ineffective means of
testing the legality of his detention, he may not challenge his convictions
and sentence under 28 U.S.C. § 2241.
For the reasons set forth below, the Court dismisses the habeas
petition, denies the “Demand to Show Cause” and motion for order to
show cause without prejudice to Petitioner’s right to bring those issues
in a new action, and denies Petitioner’s other motions and requests for
The Criminal Case
Petitioner was convicted of the following crimes in the United
States District Court for the Western District of Missouri: conspiracy to
distribute 500 grams or more of methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846 (Count 1); conspiracy to commit
money laundering, in violation of 18 U.S.C. § 1956(h) (Count 3); two
counts of engaging in monetary transactions in property derived from
specified unlawful activity, in violation of 18 U.S.C. § 1957 (Counts 5 and
6); and failure to file Internal Revenue Service Form 8300, in violation of
31 U.S.C. §§ 5331 and 5322 (Count 7).
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Petitioner filed a motion for judgment of acquittal after the verdict
and United States District Judge Beth Phillips denied the motion. See
United States v. Delgrosso, No. 13-03054-13, 2015 WL 13849103 (W.D.
Mo. Oct. 19, 2015). On April 6, 2016, Judge Phillips sentenced Petitioner
to four concurrent terms of 120 months in prison for Counts 1, 3, 5, and
6, and a concurrent term of 60 months in prison for Count 7. See United
States v. Delgrosso, No. 6:13-cr-03054-13, Judgment of Sentence, Doc.
648, pp. 1–2 (W.D. Mo. Apr. 6, 2016).
Petitioner appealed his convictions, but the United States Court of
Appeals for the Eighth Circuit affirmed his convictions on March 30,
2017. See United States v. Delgrosso, 852 F.3d 821 (8th Cir. 2017). Later,
Petitioner filed several post-conviction motions to reduce or vacate his
sentence. Judge Phillips dismissed or denied the motions. See Delgrosso,
No. 6:13-cr-03054-13 (W.D. Mo.), Docs. 731 and 734 (motion to vacate
sentence under § 2255 and order dismissing the motion); Docs. 736 and
743 (motion to reduce sentence and order denying the motion); Docs. 772
and 781 (motion to reduce sentence and order denying the motion); and
Docs. 820 and 824 (motion to vacate sentence under § 2255 and order
dismissing the motion).
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In 2020, the Federal Bureau of Prisons released Petitioner to a halfway house or home confinement. (See id., Doc. 772, pp. 1–2). Petitioner
then filed a motion for sentence reduction and release from home
confinement. (Id. at p. 1.) On November 24, 2020, Judge Phillips denied
Petitioner’s motion after concluding that he had not presented an
extraordinary and compelling reason to reduce his sentence. (Id., Doc.
The Bureau of Prisons later revoked its decision due to Petitioner’s
alleged violation of a condition of release. (Id., Doc. 839, p. 1). Petitioner
was then sent to FCI-Milan, where he filed a motion for compassionate
release, which Judge Phillips denied. (Id. at pp. 1–3.) On January 5, 2022,
Petitioner filed this case.
The Petition, Motions, and Requests in this Case
In his habeas petition (ECF No. 1), Petitioner asserts three claims:
(1) that the federal court in Missouri lacked jurisdiction and that his
arrest, trial, conviction, and imprisonment were invalid; (2) that
Assistant United States Attorney Timothy Garrison of the Western
District of Missouri committed a fraud on the trial court and Judge
Phillips failed to act when she was apprised of the fraud; and (3) that
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Judge Phillips and A.G. Garrison breached a contract and their fiduciary
responsibilities. (Id. at PageID.3–12.)
Petitioner seeks: a dismissal of his criminal case with prejudice; a
declaration that all orders, judgments, and pronouncements in his
criminal case are null and void; a discharge of all his liabilities; bus
transportation from FCI-Milan to Springfield, Missouri, and some other
form of transportation from Springfield, Missouri to Branson, Missouri,
plus a food allowance; six months of “bridge assistance” to cover housing,
food, and incidentals; a public record showing that the account is settled
and closed and that his case is dismissed with prejudice; and immediate
release from prison. (Id. at PageID.14–15.)
In a “Demand for Dismissal” (ECF No. 5), Petitioner says that he is
innocent of the criminal charges against him and that he was wrongly
convicted and imprisoned. He asserts that this Court is obligated to
dismiss his criminal case and all associated cases. In a “Demand for
Summary Judgment” (ECF No. 7), Petitioner reiterates that he is an
innocent man and unlawfully incarcerated.
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Petitioner’s Motion for a Status Update (ECF No. 8) alleges that the
Court has ignored his case. He asks that the Court grant his habeas
petition or to notify him of the status of his case.
In his “Petition to Vacate” (ECF No. 11), Petitioner asks the Court
to vacate the orders and judgment in his criminal case and in all
associated cases. The grounds for this request are fraud and lack of
jurisdiction in his criminal case and “other newly discovered evidence”
that Judge Phillips committed misconduct and obstructed justice.
Petitioner also seeks a change of venue from a statutory court to an
Article III court of record. (ECF No. 13.) In his “Demand to Show Cause”
(ECF No. 15), Petitioner alleged that he was eligible for early release
from prison on April 26, 2022, and that federal prison officials have
delayed and denied his requests for release. He also filed a motion for the
Court to issue an order that Respondents show cause. (ECF No. 17.)
Lastly, he filed a motion to dismiss without prejudice his demand that
Respondents provide him with an MRI, wherein he states he received the
MRI. (ECF No. 17.)
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The All Writs Act
Petitioner brings this action under the All Writs Act, 28 U.S.C. §
1651, which “authorizes federal courts to ‘issue all writs necessary or
appropriate in aid of their respective jurisdictions and agreeable to the
usages and principles of law.’” Shoop v. Twyford, 142 S. Ct. 2037, 2041
(2022) (quoting 28 U.S.C. § 1651(a)). The Act “does not provide federal
courts with an independent source of jurisdiction to issue writs,” Baze v.
Parker, 632 F.3d 338, 345 (6th Cir. 2011), and the Supreme Court has
“made clear that a petitioner cannot use that Act to circumvent statutory
requirements or otherwise binding procedural rules.” Twyford, 142 S. Ct.
at 2044. As the Supreme Court explained in Pennsylvania Bureau of
Corr. v. U.S. Marshals Serv., 474 U.S. 34 (1985),
[t]he All Writs Act is a residual source of authority to issue
writs that are not otherwise covered by statute. Where a
statute specifically addresses the particular issue at hand, it
is that authority, and not the All Writs Act, that is controlling.
Although that Act empowers federal courts to fashion
extraordinary remedies when the need arises, it does not
authorize them to issue ad hoc writs whenever compliance
with statutory procedures appears inconvenient or less
Id. at 43.
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Claims such as Petitioner’s, which seek to challenge federal court
convictions, are addressed by statute. Bell v. United States, No. 15-cv10919, 2015 WL 2083538, at *1 (E.D. Mich. May 5, 2015) (unpublished).
The primary mechanism for challenging the legality of a federal sentence
is a motion to vacate, set aside, or correct the sentence under 28 U.S.C. §
2255. United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001).
A challenge to the manner or execution of a sentence, like Petitioner
raises in his Demand to Show Cause (ECF No. 15), may be brought under
28 U.S.C. § 2241. (Id.) Additionally, “where the remedy under § 2255 is
inadequate or ineffective, the savings clause [of § 2255] allows a federal
prisoner to ‘bring a claim challenging his conviction or imposition of
sentence under § 2241.’” Hill v. Masters, 836 F.3d 591, 594 (6th Cir. 2016)
(quoting Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999)).
Because 28 U.S.C. §§ 2241 and 2255 can be used to challenge the
perceived errors that Petitioner complains of, the All Writs Act does not
apply. And even though federal courts may use the All Writs Act to issue
writs of mandamus, Moss v. Arnold, 654 F. Supp. 19, 22 (S.D. Ohio 1986),
“[a] district court lacks authority to issue a writ of mandamus to another
district court.” Mullis v. U.S. Bankr. Ct. for Dist. of Nevada, 828 F.2d
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1385, 1393 (9th Cir. 1987) (citing Lewis v. Green, 629 F. Supp. 546, 553
Section 2255’s “Savings Clause”
Petitioner seeks alternative relief under 28 U.S.C. § 2241. The basis
for the relief Petitioner seeks under § 2241 is grounded in § 2255’s
“savings clause,” which reads:
An application for a writ of habeas corpus on behalf of a
prisoner who is authorized to apply for relief by motion
pursuant to this section, shall not be entertained if it appears
that the applicant has failed to apply for relief, by motion, to
the court which sentenced him, or that such court has denied
him relief, unless it also appears that the remedy by motion
is inadequate or ineffective to test the legality of his detention.
28 U.S.C. § 2255(e).
Section “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).
Petitioner, however, claims to be innocent of the crimes for which he is
incarcerated, and “[o]n a successive challenge to a conviction, a petitioner
may test the legality of his detention under § 2241 through the § 2255(e)
savings clause by showing that he is ‘actually innocent.’ ” Hill, 836 F.3d
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at 594 (citing Wooten v. Cauley, 677 F.3d 303, 307 (6th Cir. 2012))
(emphasis in original).
Still, “a federal prisoner cannot bring a claim of actual innocence in
a § 2241 petition through the saving clause without showing that he had
no prior reasonable opportunity to bring his argument for relief.” Wright
v. Spaulding, 939 F.3d 695, 705 (6th Cir. 2019). Petitioner has had prior
opportunities to bring his actual innocence claim.
Petitioner is asking this Court to vacate another court’s judgment
and rulings, which the Court declines to do. “It would be inappropriate
for this Court to issue any order which could affect or interfere with
another judge’s handling of a case on his or her docket.” Al-Ansi v.
Obama, 647 F. Supp. 2d 1, 13 (D.D.C. 2009). Petitioner, therefore, is not
entitled to relief under § 2255’s “savings clause.”
Conclusion and Order
For the reasons set forth above, the habeas corpus petition (ECF
No. 1) is summarily DISMISSED. Petitioner’s demands for dismissal
and for summary judgment (ECF Nos. 5 and 7) are DENIED. The
petition to vacate orders and judgment (ECF No. 11) and the request for
a change of venue (ECF No. 13) are DENIED. The motion for a status
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update (ECF No. 8) is DENIED as moot. The show cause demand (ECF
No. 15) and motion for order to show cause (ECF No. 17), which raises
new and unrelated issues, are DENIED without prejudice to Petitioner’s
right to raise those issues in a new action. Petitioner’s motion to dismiss
without prejudice (ECF No. 27) is DENIED without prejudice to
Petitioner’s right to raise those issues in a new action. Petitioner’s other
requests, such as his petition for an emergency hearing (ECF No. 19) and
for judicial notice of administrative facts (ECF No. 18), are denied as
moot since his petition is dismissed.
IT IS SO ORDERED.
Dated: January 19, 2023
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or first-class U.S. mail addresses
disclosed on the Notice of Electronic Filing on January 19, 2023.
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