Bailey v. UNITED STATES OF AMERICA

Filing 2

REPORT AND RECOMMENDATIONS - It is accordingly respectfully recommended that the Petition herein be dismissed without prejudice as barred by 28 U.S.C. § 2255(e). In the alternative, it is recommended that the Petition be dismissed without prejud ice for lack of personal jurisdiction over Bailey's custodian. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 1/5/2015. Signed by Magistrate Judge Michael R Merz on 12/16/2014. (kpf1)(This document has been sent by the Clerks Office 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
WESTERN DIVISION AT DAYTON
ELMO BAILEY,
Petitioner,

:

- vs -

Case No. 3:14-cv-453
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

UNITED STATES OF AMERICA,
:
Respondent.

REPORT AND RECOMMENDATIONS

Petitioner Elmo Bailey filed this habeas corpus petition pro se pursuant to 28 U.S.C. §
2241(c)(3) and 2243. The case was automatically referred to the undersigned Magistrate Judge
pursuant to the Court’s General Order of Assignment and Reference and is before the Court for
initial review. 28 U.S.C. § 2243 provides that the writ or an order to show cause why the writ
should not be granted shall be issued forthwith “unless it appears from the application that the
applicant or person detained is not entitled thereto.”
Bailey explains that he is collaterally appealing his 216 month sentence which was
imposed by this Court in Case No. 3:09-cr-181 (Petition, Doc. No. 1, PageID 3). The record in
that case shows that Bailey was arrested six years ago today, December 16, 2009 (Doc. No. 7).
Thereafter on December 22, 2009, he was indicted by the grand jury on four counts: conspiracy
to possess with the intent to distribute cocaine (Count 1), conspiracy to interfere with commerce
through robbery (Count 2), possession of a firearm in furtherance of a drug trafficking crime
(Count 3), and possession of a firearm in furtherance of a crime of violence (Count

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4)(Indictment, Doc. No. 14). Bailey pled not guilty at arraignment (Doc. No. 19). On May 23,
2010, Bailey changed his plea on Counts 2 and 4 to guilty, pursuant to a Plea Agreement; Counts
1 and 3 were dismissed (Doc. No. 36). On January 6, 2011, Bailey received a below-guidelines
sentence of 156 months on Count 2 and the mandatory five-year consecutive sentence on Count
4 (Doc. Nos. 61, 64). Bailey appealed, but the Sixth Circuit affirmed his conviction and sentence
on March 16, 2012 (Doc. No. 84).
Count 4 of the Indictment, to which Bailey pled guilty, charged him with a violation of
18 U.S.C. § 924(c). His Ground for Relief in this case is that he cannot be guilty of that offense
because the gun in question was found by the police fifteen feet away from him under a car. He
asserts this evidence is constitutionally insufficient for conviction under Bailey v. United States,
516 U.S. 137 (1995), which held that to prove “use” as that term is meant in 18 U.S.C. § 924(c),
“requires evidence sufficient to show an active employment of the firearm by the defendant, a
use that makes the firearm an operative factor in relation to the predicate [drug] offense.”
Petitioner asserts that “[n]o government witness ever testified against Mr. Bailey, as having the
possession of the gun charge.” (Petition, Doc. No. 1, PageID 12.)
A claim that a conviction is based on insufficient evidence states a claim for relief under
the Fourteenth Amendment which requires the United States to prove every element of a crime
by evidence capable of establishing the element beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307 (1979).
28 U.S.C. § 2255 provides a remedy for unconstitutional federal imprisonment parallel to
habeas corpus but in substitution for it. Section 2255(e) provides:
(e) An 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
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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.

Examination of the docket in Case No. 3:09-cr-181 shows that Bailey has never applied
for relief under 28 U.S.C. § 2255. Nor has he attempted to show in his Petition that “the remedy
by [§ 2255] motion is inadequate or ineffective to test the legality of his detention.”
Even if Bailey showed the § 2255 motion remedy was inadequate or ineffective, this
Court could not entertain his Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 because
the Court does not have jurisdiction of his custodian. The address provided by Bailey with his
Petition shows that he is confined at the United States Penitentiary in Tucson, Arizona. This
Court does not have personal jurisdiction over the superintendent or warden of that facility, who
is the proper respondent in a § 2241 case. Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004).

Conclusion

It is accordingly respectfully recommended that the Petition herein be dismissed without
prejudice as barred by 28 U.S.C. § 2255(e). In the alternative, it is recommended that the
Petition be dismissed without prejudice for lack of personal jurisdiction over Bailey’s custodian.

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Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a
certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would
be objectively frivolous and therefore should not be permitted to proceed in forma pauperis.

December 16, 2014.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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