Spann v. Coakley
Filing
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Memorandum Opinion and Order: Petitioner's challenge to his enhanced sentence is insufficient to invoke the savings clause of 28 U.S.C. § 2255 or entitle petitioner to relief in a §2241 petition. Accordingly, his petition is d enied and this action is dismissed pursuant to 28 U.S.C. § 2243. The Court further certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Patricia A. Gaughan on 10/20/14. (LC,S)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
John Spann,
Petitioner,
v.
Warden John Coakley,
Respondent.
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CASE NO. 4:14 CV 0660
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
Pro se petitioner John Spann filed this Petition for a Writ of Habeas Corpus pursuant to
28 U.S.C. §2241. (Doc. 1.) For the reasons stated below, the petition is denied.
Background
On December 2, 2004, petitioner was charged by a federal grand jury with violating 18
U.S.C. §§ 922(g)(1) (convicted felon in possession of a firearm) and 924(e) (career criminal in
possession of a firearm). Following a two-day trial, petitioner was found guilty of violating 18
U.S.C. § 922(g)(1). To prove petitioner’s status as an armed career criminal at his sentencing
hearing, the government provided certified copies of court records from the Philadelphia County
Court of Common Pleas demonstrating petitioner had three prior convictions: a burglary
conviction and two prior aggravated assault convictions. The district court found petitioner was
an armed career criminal under 18 U.S.C. § 924(e) and enhanced his sentence. The district
court sentenced petitioner to a total of 188 months’ imprisonment, within the guideline range.
Petitioner appealed his sentence to the Third Circuit Court of Appeals, arguing the
government’s failure to charge and prove his prior felony convictions to a jury violated his Fifth
and Sixth Amendment rights. The Third Circuit rejected petitioner’s claims and affirmed his
sentence. U.S. v. Spann, 243 Fed. App’x 689, 2007 WL 2156151 (3rd Cir. July 27, 2007).
Petitioner’s subsequent petition for a writ of certiorari in the Supreme Court was denied.
Petitioner filed a pro se petition under 28 U.S.C. § 2255 in the Eastern District of
Pennsylvania, asserting ineffective assistance of his counsel and that his prior burglary
conviction was improperly considered as a predicate conviction in enhancing his sentence. The
district court denied the § 2255 petition, finding petitioner had not demonstrated denial of a
constitutional right. U.S. v. Spann, 2009 WL 2018508, at *1 (E.D. Pa. July 9, 2009).
Petitioner now seeks relief from this Court pursuant to 28 U.S.C. § 2241, asking the
Court “to vacate his sentence.” (Pet. Mem. at 12.)
Standard of Review
The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. §2243;
Alexander v. Northern Bureau of Prisons, 419 Fed. App'x 544, 545 (6th Cir. 2011). Although a
pro se complaint is evaluated under a more lenient standard than a pleading drafted by a lawyer,
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Williams v. Curtin, 631 F.3d 380, 383 (6th Cir.
2011), the Court must deny a petition if it plainly appears from the face of the petition that the
petitioner is not entitled to relief. See Alexander, 419 Fed. App'x at 545. The allegations in the
petition are accepted as true and liberally construed in the petitioner's favor. Urbina v. Thomas,
270 F.3d 292, 295 (6th Cir. 2001).
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Analysis
Even when the petition is liberally construed, petitioner is not entitled to relief under 28
U.S.C. § 2241. Sections 2255 and 2241 provide the habeas statutory scheme for federal
prisoners. Terrell v. United States, 564 F.3d 442, 447 (6th Cir. 2009). Section 2255 provides the
primary avenue of relief for federal prisoners claiming the right to release as a result of an
unlawful sentence, while § 2241 “is appropriate for claims challenging the execution or manner
in which the sentence is served.” United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001).
Therefore, claims asserted by federal prisoners seeking to challenge their sentences must be
filed in the sentencing court pursuant to 28 U.S.C. § 2255. See Charles v. Chandler, 180 F.3d
753, 756 (6th Cir. 1999).
There is a “saving clause” in § 2255, 28 U.S.C. § 2255(e), which provides a narrow
exception and allows a federal prisoner to challenge his conviction or sentence under § 2241 if §
2255 “is inadequate or ineffective to test the legality of the detention.” Terrell, 564 F.3d at 447.
Section 2255 relief is not inadequate or ineffective, however, merely because § 2255 relief has
been denied, the petitioner is procedurally barred from pursuing § 2255 relief, or the petitioner
has been denied permission to file a second or successive § 2255 motion. Barnes v. United
States, 102 Fed. App’x 441, 443 (6th Cir. 2004). Rather, the savings clause has been applied to
allow a § 2241 petition only where a petitioner demonstrates “actual innocence based upon
Supreme Court decisions announcing new rules of statutory construction unavailable for attack
under section 2255.” Hayes v. Holland, 473 Fed. App’x 501, 502 (6th Cir. 2012). Actual
innocence can be shown where the prisoner shows “an intervening change in the law establishes
his actual innocence.” Barnes, 102 Fed. App’x at 443.
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Petitioner’s theory of actual innocence is based on the new rule of law announced in
Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013), in which the Supreme Court held that
“[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted
to the jury and found beyond a reasonable doubt.” Petitioner argues his “sentence must be set
aside and vacated” because the government did not charge and prove his prior felony
convictions used to enhance his sentence to a jury.
Even viewing the petition liberally in petitioner’s favor, petitioner does not have a
cognizable claim under § 2241. Initially, even though Alleyne “establishes a new rule of
constitutional law,” the Supreme Court “did not declare that [the] new rule applies retroactively
on collateral attack.” Simpson v. U.S., 721 F.3d 875, 876 (7th Cir. 2013). Therefore, while the
rule in Alleyne applies to cases still pending on direct review, it cannot be used retroactively on
collateral review. Id.
In addition, even if Alleyne had retroactive application, it is insufficient to trigger the
savings clause in § 2255 in petitioner’s case. Although petitioner uses the phrase “actual
innocence” in his petition, he does not contend he is actually innocent of the federal charge for
which he was convicted. Instead, petitioner challenges only his enhanced sentence on the
ground that the prior convictions used to enhance his sentence were not charged and tried to the
jury. The Sixth Circuit has held that claims of sentencing error may not serve as the basis for an
actual innocence claim under § 2255's savings clause. See Bannerman v. Snyder, 325 F.3d 722,
724 (6th Cir. 2003) (“The saving clause may only be applied when the petitioner makes a claim
of actual innocence. A challenge to a sentence . . . cannot be the basis for an actual innocence
claim . . .”) (citations omitted). See also See Jones v. Castillo, 489 Fed. App'x 864, 866 (6th
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Cir. 2012) (“Claims alleging actual innocence of a sentencing enhancement cannot be raised
under § 2241.”); Hayes, 473 Fed. App’x at 502 ("[t]he savings clause of section 2255(e) does
not apply to sentencing claims."). Accordingly, petitioner cannot challenge his enhanced
sentence pursuant to § 2241.
Finally, Alleyne does not prohibit a judge from determining whether a defendant has a
prior conviction for purposes of enhancing a sentence in any case. As the Sixth Circuit has
stated, since the Supreme Court decided Almendarez-Torres v. United States, 523 U.S. 224
(1998), “it has been well-settled that a judge is permitted to find, based on a preponderance of
the evidence, the fact of a prior conviction.” United States v. Pritchett, 749 F.3d 417, 434 (6th
Cir. 2014). In Alleyne, the Supreme Court specifically declined to disturb this narrow
exception. See Alleyne, 133 S. Ct. at 2160, n. 1. Almendarez-Torres remains good law, and this
Court is required to follow it. See Pritchett, 749 F.3d at 434 (holding district court was
permitted to find the fact of defendants’ prior convictions in enhancing their sentences for drug
conspiracy). Thus, petitioner has not alleged a viable claim under Alleyne even if it could be
retroactively applied on collateral review.
Conclusion
For all the reasons stated above, petitioner’s challenge to his enhanced sentence is
insufficient to invoke the savings clause of 28 U.S.C. § 2255 or entitle petitioner to relief in a
§ 2241 petition. Accordingly, his petition is denied and this action is dismissed pursuant to 28
U.S.C. § 2243. The Court further certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal
from this decision could not be taken in good faith.
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IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 10/20/14
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