Berry v. Merlak

Filing 6

Memorandum of Opinion and Order: Accordingly, this action is dismissed pursuant to 28 U.S.C. § 2243. 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. Judge Patricia A. Gaughan on 5/22/17. (LC,S)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

LEE HENRY BERRY,
Petitioner,
v.

STEVEN MERLAK, Warden,
Respondent.

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CASE NO. 4:17 CV 610
JUDGE PATRICIA A. GAUGHAN

MEMORANDUM OF OPINION
AND ORDER

Pro se Petitioner Lee Henry Berry is an inmate in the Federal Correctional Institution in
Elkton, Ohio. He brings this in forma pauperis action for a writ of habeas corpus pursuant to 28
U.S.C. §2241, challenging the sentence imposed on him by the United States District Court for
the Eastern District of Michigan. In particular, he contends the trial court erred by enhancing his
sentence based on a finding that he was an Armed Career Criminal. Petitioner relies for this
proposition on Descamps v. United States, 133 S. Ct. 2276 (2013),1 which he asserts the Sixth
Circuit determined applies retroactively on collateral review in Hill v. Masters, 836 F.3d 591 (6th
Cir. 2016).
A district court must conduct an initial review of habeas corpus petitions. 28 U.S.C.

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Descamps held that a federal sentencing judge may not look to the underlying court record
in determining whether a defendant committed predicate ACCA offenses when the statute of
conviction has a single, indivisible set of elements.

§2243; Alexander v. Bureau of Prisons, 419 Fed. App'x 544, 545 (6th Cir. 2011). The court
must deny a petition on initial review if it plainly appears from the face of the petition that the
petitioner is not entitled to relief. Id. 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).
Habeas corpus petitions brought pursuant to 28 U.S.C. § 2241 address the execution of a
sentence, while motions filed pursuant to 28 U.S.C. § 2255 test the validity of a judgment and
sentence. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998)(citing United States v.
Jalili, 925 F.2d 889, 893 (6th Cir. 1991)). Section 2255 provides in pertinent part:
[a]n 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.
28 U.S.C. § 2255.
The terms "inadequate" or "ineffective" do not mean that habeas corpus relief is
available whenever a federal prisoner faces a substantive or procedural barrier to § 2255
relief, including the denial of a previously filed section 2255 motion. Charles v. Chandler,
180 F.3d 753, 756 (6th Cir. 1999). Rather, the “savings clause” noted above applies when
the failure to allow some form of collateral review would raise “serious constitutional
questions.” Frost v. Snyder, 13 Fed.Appx. 243, 248 (6th Cir. 2001)(unpublished
disposition)(quoting Triestman v. United States, 124 F.3d 361, 376 (2d Cir. 1997)). A
petitioner bears the burden of proving that the section 2255 remedy is inadequate or

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ineffective. Charles, 180 F.3d at 756 (citing McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir.
1979)).
The Supreme Court has not held that Descamps applies retroactively to cases on
collateral review. Groves v. United States, 755 F.3d 588, 593 (7th Cir.), cert. denied, 135 S.
Ct. 501 (2014); United States v. Montes, 570 Fed.Appx. 830, 831 (10th Cir. 2014). Further,
Petitioner’s reliance on Hill v. Masters is misplaced, as that decision was based on the
government’s agreement in that particular case that Descamps applied retroactively. Id., at
595.
Petitioner thus seeks to raise sentencing issues that could and must be raised in a
2255 motion. The Petition does not set forth a valid basis on which to instead raise these
issues pursuant 28 U.S.C. § 2241, nor does it give rise to “serious constitutional questions”
requiring further consideration of Petitioner’s claims.
Accordingly, this action is dismissed pursuant to 28 U.S.C. § 2243. 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/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
UNITED STATES DISTRICT JUDGE
Dated: 5/22/17

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