Bowens v. United States of America
Filing
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Opinion and Order signed by Judge James S. Gwin on 11/5/14. The Court, for the reasons set forth in this Opinion and Order, dismisses the petition for a writ of habeas corpus as insufficient on its face. Further the Court certifies that an appeal from this decision could not be taken in good faith. (Related Doc. 1 ) (M,G)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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MICHAEL BOWENS,
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Petitioner,
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vs.
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UNITED STATES OF AMERICA,
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Respondent.
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CASE NO. 4:14-CV-1097
OPINION & ORDER
[Resolving Doc. No. 1]
------------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Pro se petitioner Michael Bowens is a federal prisoner incarcerated at FCI Elkton. He
brings this petition pursuant to 28 U.S.C. § 2241. The basis for his petition is that an incorrect
criminal history was used to calculate his sentence. He contends a prior felony conviction
pertaining to check fraud reflected in his presentence investigation report, and used in
determining his sentence, was reduced to a misdemeanor prior to his sentencing and that he is
“actually innocent” of the felony conviction.
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
pro se pleadings are evaluated under a more lenient standard than pleadings drafted by lawyers,
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 its face that the petitioner is not
entitled to relief. See Alexander, 419 Fed. App'x at 545. The petition is liberally construed, and
the petitioner’s allegations are accepted as true. Urbina v. Thomas, 270 F.3d 292, 295 (6th Cir.
2001).
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). As a general matter, §
2241 is reserved for “challenging the execution or manner in which [a] sentence is served.”
United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001). In contrast, 28 U.S.C. § 2255 is
the proper means by which a federal prisoner may challenge his conviction or the imposition of
his sentence. 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).
A so-called “saving clause” in § 2255, 28 U.S.C. § 2255(e), 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 he 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
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2255.” Hayes v. Holland, 473 Fed. App’x 501, 501-02 (6th Cir. 2012). To demonstrate actual
innocence, a petitioner must show: “(1) the existence of a new interpretation of statutory law, (2)
which was issued after the petitioner had sufficient time to incorporate the new interpretation
into his direct appeals or subsequent motions, (3) is retroactive, and (4) applies to the merits of
his petition to make it more likely than not that no reasonable juror would have convicted him.”
Wooten v. Cauley, 677 F.3d 303, 307-08 (6th Cir. 2012).
Petitioner is not entitled to proceed under 28 U.S.C. § 2241 because he seeks to
challenge his sentence, not the “execution or manner” in which his sentence is being served.
Petitioner apparently attempts to invoke the savings clause by using the term “actual innocence”
in his petition, but he does not contend he is actually innocent of the underlying federal charge
of which he was convicted. Rather, he contends he is actually innocent of a felony used in
calculating his criminal history score for purposes of sentencing. The Sixth Circuit has made
clear that “actual innocence” means factual innocence, meaning that the petitioner did not
commit the conduct proscribed by the criminal statute under which he was convicted. See
Martin v. Perez, 319 F.3d 799, 904 (6th Cir. 2003). Claims of sentencing error may not serve as
the basis of an actual innocence claim. 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); Hayes, 473 Fed. App’x at 502 (“The savings clause of section 2255(e) does
not apply to sentencing claims.”). Accordingly, petitioner may not challenge his sentence
pursuant to § 2241.
Further, petitioner’s claim of actual innocence fails because the theory of sentencing
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error he advances was available at the time of direct appeal, and not because of a new
interpretation of statutory law. In fact, the sentencing court dismissed a motion by petitioner
challenging his sentence under § 2255 because petitioner waived his right to challenge his
conviction and sentence in a written plea agreement. See Bowens v. United States, No. 1: 11 CV
052, 2012 WL 2838695 (S.D. Ind. July 8, 2012).
Conclusion
For all of the reasons stated above, the pending petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 is insufficient on its face and is hereby dismissed. Further, the
Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) that an appeal from this decision could not be
taken in good faith.
IT IS SO ORDERED.
s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
Dated: November 5, 2014
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