Cepeda-Del Torro #77498-179 v. Emerson

Filing 2

OPINION; signed by District Judge Hala Y. Jarbou (aks)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______

MISAEL CEPEDA-DEL TORRO,
Petitioner,

Case No. 1:21-cv-443

v.

Hon. Hala Y. Jarbou

DONALD EMERSON,
Respondent.

____________________________/
OPINION
This is a habeas corpus action brought by a federal prisoner under 28 U.S.C. § 2241.
A court must promptly order an answer or grant the writ under § 2241, “unless it appears from the
application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. After
undertaking the review required by § 2243, the Court concludes that the petition must be dismissed,
because Petitioner fails to demonstrate entitlement to relief under § 2241, and the Court is without
subject matter jurisdiction to decide his claims because (1) his claims do not fall within the savings
clause of 28 U.S.C. § 2255(e), and (2) Petitioner is no longer in custody under the conviction and
sentence he challenges by way of his petition.
Discussion
I.

Background
The sentence Petitioner challenges by way of his petition was entered in the United

States District Court for the Southern District of Texas in United States v. Cepeda-Del Torro, No.
2:08-cr-449 (S.D. Tex.). Petitioner does not challenge the initial sentence as entered by the Texas

court, but rather the term of imprisonment he was ordered to serve upon revocation of his
supervised release.
In the Texas case, on August 26, 2008, Petitioner entered a plea of guilty to a charge
of possession with intent to distribute 228.75 kilograms of marijuana. Petitioner was sentenced to
a 5-year term of imprisonment, to be followed by a 4-year term of supervised release. Petitioner’s
supervised release was subject to the following special condition:
If deported, the defendant is not to re-enter the United States illegally. If
the defendant is deported during the period of probation or the supervised release
term, supervision by the probation office becomes inactive. If the defendant
returns, the defendant shall report to the nearest U.S. Probation Office immediately.
Supervision by the probation officer reactivates automatically upon the defendant’s
reporting.
United States v. Cepeda-Del Torro, No. 2:08-cr-449 (S.D. Tex. Nov. 7, 2008) (the Texas drug
prosecution). A petition for warrant from the Texas court indicates that Petitioner was deported
from the United States on December 5, 2012. At some point, Petitioner returned to the United
States, without permission, because he was found in Tampa, Florida on December 2, 2015.
Petitioner was not simply found in the Tampa area on December 2, he was arrested
when Drug Enforcement Agency officers raided a “drug house” that Petitioner operated. Officers
found methamphetamine and cocaine and weapons in the home. United States v. Cepada,
No. 8:16-cr-146 (M.D. Fla) (the Florida drug prosecution) (Compl., Doc. 1). Petitioner entered a
plea of guilty to a charge of conspiracy with intent to distribute 500 grams or more of
methamphetamine. He was sentenced to144 months’ imprisonment to be followed by a 5-year
term of supervised release.
Petitioner was charged in a separate proceeding with illegal reentry into the United
States following deportation for a felony offense. United States v. Cepeda, No. 8:16-cv-26 (M.D.

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Fla.) (the Florida immigration prosecution). Petitioner entered a guilty plea on March 3, 2016.
His plea agreement included the following term:
If the Court accepts this plea agreement, the United States Attorney’s Office
for the Middle District of Florida agrees not to charge defendant with committing
any other federal criminal offenses known to the United States Attorney’s Office at
the time of the execution of this agreement, related to the conduct giving rise to this
plea agreement, specifically immigration-related offenses. This plea agreement
does not affect pending or future charges related to the Middle District of Florida
case against the defendant currently assigned number 8:15-01784-AEP.[1]
United States v. Cepeda, No. 8:16-cr-26 (M.D. Fla, Mar. 2, 2016) (Plea Ag., Doc. 16, PageID.40–
41.) The court accepted Petitioner’s plea and sentenced him to 70 months’ imprisonment to be
followed by a 3-year term of supervised release. The sentence was to be served concurrently with
Petitioner’s sentence from the Florida drug prosecution.
Petitioner’s plea agreement in the Florida immigration prosecution was entered on
March 2, 2016. The court accepted the plea on March 23, 2016. Based presumably on Petitioner’s
plea in the Florida immigration prosecution, on March 31, 2016, in the Texas drug prosecution, a
United States Probation Officer in Texas filed a petition for warrant for Petitioner’s violation of
his terms of supervised release. The Texas court executed the warrant on April 1, 2016.2
The Texas court transferred jurisdiction for Petitioner’s supervised release to the
Florida court on April 15, 2016. The Florida court accepted the transfer on May 11, 2016. On
May 25, 2016, the Florida court conducted a hearing on the revocation of Petitioner’s supervised
release, Petitioner admitted his guilt of illegal re-entry and failure to report, and the court revoked

1

The complaint in Case No. 8:15-mj-01784-AEP is the complaint that formed the basis for the Florida drug
prosecution.
2

Petitioner’s plea agreement in the Florida drug prosecution was, coincidentally, also entered on April 1, 2016.

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Petitioner’s supervised release. The court sentenced Petitioner to serve a 15-month term of
imprisonment.
When Petitioner was sentenced in the Florida drug case on October 6, 2016, and
the Florida immigration case on November 8, 2016, his sentences in those cases were to run
consecutively to the sentence he was serving following the revocation of his supervised release.
Petitioner did not appeal any of his convictions or sentences, nor did he challenge
them by way of a motion under 28 U.S.C. § 2255. Instead, he waited until his sentences following
the revocation of his supervised release and his sentence for the immigration prosecution had been
fully served—years after the judgments were entered—to challenge the judgment revoking his
supervised release from the Texas drug prosecution. Petitioner challenges the revocation of his
supervised release on the following ground:
I.

Petitioner’s subsequent conviction must be reversed because the
government knowingly failed to keep its promise that, in exchange for a
guilty plea, it would not charge defendant with committing any other known
offenses to the United States.

(Pet., ECF No. 1, PageID.6.)
II.

Analysis
Ordinarily, a federal prisoner must challenge the legality of his detention by motion

under 28 U.S.C. § 2255 but may challenge the manner or execution of his sentence under 28 U.S.C.
§ 2241. Hill v. Masters, 836 F.3d 591, 594 (6th Cir. 2016) (citing United States v. Peterman, 249
F.3d 458, 461 (6th Cir. 2001)). However, a prisoner may also challenge the legality of his
detention under § 2241 if he falls within the “savings clause” of § 2255, which states:
An application for a writ of habeas corpus in 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.
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28 U.S.C. § 2255(e) (emphasis added); Peterman, 249 F.3d at 461. Thus, through the § 2255
“savings clause” vehicle, a petitioner may seek habeas relief under § 2241 where he can show that
§ 2255 provides an “inadequate or ineffective” means for challenging the legality of his detention.
The Sixth Circuit has held that “‘[t]he circumstances in which § 2255 is inadequate
and ineffective are narrow.’” Hill, 836 F.3d at 594 (quoting Peterman, 249 F.3d at 461). As the
court explained in Charles v. Chandler, 180 F.3d 753 (6th Cir. 1999), “[t]he remedy afforded under
§ 2241 is not an additional, alternative or supplemental remedy to that prescribed under § 2255.”
Id. at 758 (citations omitted). 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. Instead, the
savings clause applies only where the petitioner also demonstrates “actual innocence,” Peterman,
249 F.3d at 461–62; Charles, 180 F.3d at 757, or “‘a subsequent, retroactive change in statutory
interpretation by the Supreme Court,’” Hueso v. Barnhart, 948 F.3d 324, 332 (6th Cir. 2020)
(quoting Hill, 836 F.3d at 599–600).
The standard for demonstrating actual innocence, either directly or due to the
Supreme Court’s interpretation of a statute, is exceedingly high and “ensures that [a] petitioner’s
case is truly ‘extraordinary . . . .’” Schlup v. Delo, 513 U.S. 298, 327 (1995) (quoting McCleskey
v. Zant, 499 U.S. 467, 494 (1991)). “‘To establish actual innocence’” for the purposes of § 2255(e),
a “‘petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no
reasonable juror would have convicted him.’” Martin v. Perez, 319 F.3d 799, 804 (6th Cir. 2003)
(quoting Bousley v. United States, 523 U.S. 614, 623 (1998)). Yet, as both the Supreme Court and
Sixth Circuit have made clear, “actual innocence means factual innocence, not mere legal
insufficiency.” Bousley, 523 U.S. at 623-24; accord Wooten v. Cauley, 677 F.3d 303, 307
(6th Cir. 2012).
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Petitioner’s challenge does not rest on a claim of actual innocence. He twice
admitted he was guilty of reentering the United States without permission and once admitted he
was guilty of failing to report. Moreover, Petitioner does not identify any subsequent, retroactive
change in statutory interpretation by the Supreme Court that might warrant revisiting his sentence
under§ 2241. Thus, the “savings clause” cannot save Petitioner.
In Petitioner’s case, however, there is a more fundamental defect in his petition.
Section 2241 authorizes the Court to issue a writ of habeas corpus when a prisoner “is in custody
in violation of the Constitution or laws or treaties of the United States[.]” 28 U.S.C. § 2241(c)(3).
The Supreme Court has “interpreted the statutory language as requiring that the habeas petitioner
by ‘in custody’ under the conviction or sentence under attack at the time his petition is filed.”
Maleng v. Cook, 490 U.S. 488, 490–91 (1989). Petitioner is no longer in custody because of the
revocation of his supervised release in the Texas drug prosecution. He has served the entirety of
that sentence. Accordingly, the Court does not have jurisdiction to entertain his petition even if
he falls within the “savings clause.”
Petitioner is not entitled to bring a § 2241 challenge to his supervised release
revocation because he is no longer in custody on that sentence. Moreover, the petition does not fit
within the savings clause of § 2255(e). Therefore, the Court does not have subject matter
jurisdiction of the petition. Taylor v. Owens, 990 F.3d 493, 496–99 (6th Cir. 2021).

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Conclusion
The Court will enter a judgment dismissing the petition without prejudice.3

Dated:

June 3, 2021

/s/ Hala Y. Jarbou
HALA Y. JARBOU
UNITED STATES DISTRICT JUDGE

3

In § 2241 cases, the Court need not address whether to grant a certificate of appealability. Witham v. United States,
355 F.3d 501 (6th Cir. 2004).

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