Sheneman v. Merlak

Filing 2

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 3/19/18. (LC,S) re 1

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

MICHAEL SHENEMAN,
Petitioner,
v.
WARDEN MERLAK,
Respondent.

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CASE NO. 4:17 CV 2478
JUDGE PATRICIA A. GAUGHAN
MEMORANDUM OF OPINION
AND ORDER

On November 27, 2017, Petitioner pro se Michael Sheneman, an inmate at the Federal
Correctional Institution at Elkton (“FCI Elkton”), filed the above-captioned habeas corpus action
under 28 U.S.C. § 2241. Sheneman was convicted in the United States District Court for the
Northern District of Indiana in 2011 of wire fraud.1 See, United States v. Shenemen, No. Dist.
Ind.. Case No. 3:10-cr-00126. As grounds for the Petition, he asserts he is actually innocent
because the evidence did not support his convictions and resulting sentence. 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:

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This is the fifth 2241 petition filed by Sheneman in this Court challenging the
conviction. Each of the previous petitions was dismissed. See Case Nos. 4:17
CV 520, 4:16 CV1153, 4:15 CV 2554, and 4:15 CV 1907.

[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” 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)).
Sheneman has not set forth a genuine claim of actual innocence that might fall within
the § 2255 savings clause, as the sufficiency of the evidence to support his conviction and
resulting sentence are 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.
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Court
Chief Judge
Dated: 3/19/18
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