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.)

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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 2

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