Carter v. Merlak

Filing 7

Order: 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 Jeffrey J. Helmick on 5/10/2018. (S,AL)

Case: 4:17-cv-00786-JJH Doc #: 7 Filed: 05/10/18 1 of 2. PageID #: 57

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Brian Carter,

Case No. 4:17-cv-786
Petitioner
v.

ORDER

Warden Merlak, FCI Elkton,
Respondent
On April 12, 2017, petitioner pro se Brian Carter, an inmate at the Federal Correctional
Institution at Elkton (“FCI Elkton”), filed the above-captioned habeas corpus action under 28
U.S.C. § 2241. The petition indicates Carter was convicted in the United States District Court for
the Central District of Illinois in 2001 of conspiracy to distribute cocaine and cocaine base. See,
United States v. Carter, C.D. Ill. Case No. 1:02-cr-10041. As grounds for the petition, he asserts that
his sentence was improperly calculated based on erroneous information in his pre-sentence
investigation report concerning prior convictions. For the reasons stated below, this action is
dismissed.
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

Case: 4:17-cv-00786-JJH Doc #: 7 Filed: 05/10/18 2 of 2. PageID #: 58

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” 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)).
The petitioner bears the burden of proving that the section 2255 remedy is inadequate or ineffective.
Charles, 180 F.3d at 756 (citing McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979)).
Carter seeks to raise issues that could and must be raised in a 2255 motion. The petition
sets forth no reasonable suggestion of a proper basis on which to instead raise these issues pursuant
28 U.S.C. § 2241, or that “serious constitutional questions” require further consideration of his
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.
So ordered.

s/ Jeffrey J. Helmick
United States District Judge