Foreman #12658-040 v. Terris

Filing 20

ORDER transferring 1 Petition for writ of habeas corpus to the Western District of Michigan. Signed by District Judge David M. Lawson. (DPer) [Transferred from Michigan Eastern on 9/15/2017.]

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BENJAMIN P. FOREMAN,
Petitioner,
v.

Case Number 16-13823
Honorable David M. Lawson

J.A. TERRIS,
Respondent.
______________________________/
ORDER TRANSFERRING PETITION TO
THE WESTERN DISTRICT OF MICHIGAN
On October 26, 2016, petitioner Benjamin Foreman initiated this case with his filing styled
as a petition for a writ of habeas corpus under the authority of 28 U.S.C. § 2241 and 28 U.S.C. §
2255(e). However, before the present petition was filed, Foreman filed numerous other petitions
challenging his federal conviction and sentence, under the authority of various statutes, both in this
district and in the Western District of Michigan. Because at least one of those previous petitions
also invoked section 2255, and the Court construed the present filing as a second or successive
petition, and it transferred the case to the Sixth Circuit, since the petitioner had not sought the
required leave from the court of appeals to file a second or successive petition. See Foreman v.
United States, No. 08-1115 (W.D. Mich. July 19, 2010); Foreman v. United States, No. 10-2415 (6th
Cir. June 3, 2011). On September 7, 2017, the court of appeals remanded the case to this Court,
because it concluded that, “[i]rrespective of the merits of Foreman’s underlying claim, the district
court should not have transferred his § 2241 petition to this court as a second or successive § 2255
motion, and that, because “Foreman’s petition invoked [Hill v. Masters, 836 F.3d 591, 599-600 (6th
Cir. 2016)] and the savings clause of § 2255(e) . . . the district court had jurisdiction to resolve the
matter.” Order Remanding Case [dkt. #19].

The Court notes that the record clearly indicates that Foreman’s original sentence was
imposed in 2010 in the United States District Court for the Western District of Michigan. The
petition invokes the authority of Section 2255 of Title 28, which provides that:
A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate, set aside or correct the
sentence.
28 U.S.C. 2255(a) (emphasis added). Because such a petition must be filed in the first instance in
the court that imposed the sentence, the Court will transfer the petition to the Western District of
Michigan, where the petitioner’s sentence was imposed.
Accordingly, it is ORDERED that the Clerk of Court shall TRANSFER the petition to the
United States District Court for the Western District of Michigan.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: September 13, 2017
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 September 13, 2017.
s/Susan Pinkowski
SUSAN PINKOWSKI

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