Gordon v. United States of America

Filing 20

OPINION AND ORDER adopting Report and Recommendations re 12 Report and Recommendations.. Signed by Judge James L. Graham on 2/24/2017. (ds)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHAEL LEE GORDON,
CASE NO. 2:15-CV-2680
JUDGE JAMES L. GRAHAM
Magistrate Judge Michael R. Merz

Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

OPINION AND ORDER
On December 13, 2016, the Magistrate Judge issued a Report and Recommendation
recommending that the petition for a writ of habeas corpus be dismissed with prejudice, and that
the Court certify that any appeal would be objectively frivolous and that Petitioner should not be
permitted to proceed in forma pauperis on appeal. (ECF No. 12.) Petitioner has filed a
Response in Opposition to the Magistrate Judge’s Report and Recommendation. (ECF No. 19.)
Petitioner objects to the Magistrate Judge’s recommendation of dismissal. He again claims that
he is actually innocent in view of Alleyne v. United States, 570 U.S. --, 133 S.Ct. 2151
(2013)(holding that any fact that increases a mandatory minimum sentence for a crime must be
found by a jury), and that he has properly brought such claim under 28 U.S.C. § 2241 rather than
§ 2255 under the “savings clause.”
Habeas corpus is available to challenge the legality of a federal
prisoner's detention pursuant to § 2241 only if the petitioner can
show that “the remedy by motion [pursuant to 28 U.S.C. § 2255] is
inadequate or ineffective to test the legality of his detention.” 28
U.S.C. § 2255; Charles, 180 F.3d at 756. This phrase is known as
the savings clause. Charles, 180 F.3d at 755.
Bannerman v. Snyder, 325 F.3d 722, 723 (6th Cir. 2003). However, “Alleyne neither supports
Petitioner’s claim of ‘actual innocence,’ nor does that decision aid him in demonstrating that his

remedy under 2255 was inadequate or ineffective.” Carter v. Coakley, No. 4:13-cv-1270, 2013
WL 3365139, at *3 (N.D. Ohio July 3, 2013)(Alleyne is a sentencing-error case that does not
serve as a basis for a claim of actual innocence)(citing Bannerman v. Snyder, 325 F.3d 722, 724
(2003)(internal citation omitted). Further, as noted by the Magistrate Judge, the United States
Court of Appeals for the Sixth Circuit has held that Alleyne is not to be retroactively applied to
cases on collateral review. In re Mazzio, 756 F.3d 487 (6th Cir. 2014).
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the
foregoing reasons and for the reasons discussed in the Magistrate Judge’s Report and
Recommendation, Petitioner’s objections (ECF No. 19) are OVERRULED. The Report and
Recommendation (ECF No. 12) is ADOPTED and AFFIRMED.

This action is hereby

DISMISSED WITH PREJUDICE.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken
in good faith, and Petitioner should not be permitted to proceed in forma pauperis on appeal.
IT IS SO ORDERED.
February 24, 2017
_____s/James L. Graham_________
JAMES L. GRAHAM
United States District Judge

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