Welch v. United States of America

Filing 5

ORDER DIRECTING CLERK TO MODIFY THE DOCKET, DENYING PETITION PURSUANT TO 28 U.S.C. § 2241,CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge James D. Todd on 1/6/2015. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
FRANKIE WELCH,
Petitioner,
VS.
UNITED STATES OF AMERICA,
Respondent.

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No. 14-1296-JDT-egb

ORDER DIRECTING CLERK TO MODIFY THE DOCKET,
DENYING PETITION PURSUANT TO 28 U.S.C. § 2241,
CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

On October 27, 2014, Petitioner Frankie Welch, Bureau of Prisons register number
21402-076, an inmate at the Federal Correctional Institution Low in Butner, North Carolina
(“FCI Butner Low”), filed a pro se petition for a writ of habeas corpus under 28 U.S.C.
§ 2241. (ECF No. 1.) Petitioner paid the habeas filing fee on November 3, 2014. (ECF No.
4.) The Clerk shall record the Respondent as the Warden of FCI Butner Low.1 For the
reasons stated below, the § 2241 petition is DENIED.
On October 16, 2006, a federal grand jury in this district returned a single-count
indictment charging that, on or about January 27, 2006, Welch possessed over fifty grams
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The petition names the Respondents as the United States of America and the Attorney
General. (ECF No. 1 at 1.) The only proper respondent to a habeas petition is the petitioner’s
custodian. Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004). The Clerk is directed to delete the
United States and the Attorney General as parties to this action.

of cocaine base (crack cocaine) with the intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1). (United States v. Welch, No. 06-10076-JDT (W.D. Tenn.) (ECF No. 1).) On
October 11, 2007, Welch entered a plea of guilty. (Id., Min. Entry, ECF No. 35; id., Guilty
Plea Hr’g Tr., ECF No. 51.) At a hearing on January 7, 2008, the Court sentenced Welch to
a 292-month term of imprisonment, to be followed by a five-year period of supervised
release. (Id., Min. Entry, ECF No. 42; id., Sentencing Hr’g Tr., ECF No. 53.) Judgment was
entered on January 7, 2008. (Id., ECF No. 43.) The United States Court of Appeals for the
Sixth Circuit affirmed. United States v. Welch, 324 F. App’x 448 (6th Cir. 2009).
On June 19, 2009, Welch filed a motion under 18 U.S.C. § 3582(c) in which he sought
a reduction in his sentence pursuant to Amendments 706 and 709 to the U.S. Sentencing
Guidelines. (No. 06-10076-JDT, ECF No. 58.) The Court denied the motion on July 6,
2009, on the ground that both amendments were already in effect when he was sentenced.
(Id., ECF No. 59.)
On July 8, 2011, and October 17, 2011, Welch filed additional motions under
§ 3582(c), seeking a reduction in his sentence as a result of the amendment of the Sentencing
Guidelines after the enactment of the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No.
111-220, 124 Stat. 2372 (Aug. 3, 2010). (Id., ECF Nos. 63 & 66.) The Court denied the
motions on March 13, 2012. (Id., ECF No. 69.) The Sixth Circuit Court of Appeals
affirmed. United States v. Welch, No. 12-5343 (6th Cir. Feb. 13, 2013).
On July 8, 2013, Welch filed yet another § 3582(c)(3) motion in which he continued
to argue that he was entitled to a reduction of his sentence pursuant to the FSA. (No. 062

10076-JDT, ECF No. 73.) The Court denied the motion in an order issued on May 22, 2014.
(Id., ECF No. 77.)
On November 4, 2014, Welch filed a motion seeking a reduction in his sentence
pursuant to Amendment 782 to the sentencing guidelines. (Id., ECF No. 78.) That motion
is pending.
On May 25, 2010, Welch filed a pro se motion pursuant to 28 U.S.C. § 2255, which
was docketed as civil case number 10-1132-JDB-egb. Welch v. United States, No. 10-1132JDB-egb (W.D. Tenn.). Welch alleged that his attorney had rendered ineffective assistance,
in violation of the Sixth Amendment. (Id., ECF No. 1.) Specifically, he complained that his
attorney (i) “failed to object to the fact that the state laboratory test results did not show that
petitioner possessed crack cocaine for the 100 to 1 ratio”; and (ii) failed to file a motion to
dismiss the indictment because of a violation of the Speedy Trial Act. (Id. at PageID 4.) In
an order issued on October 19, 2010, United States District Judge J. Daniel Breen denied the
§ 2255 motion (id., ECF No. 2); judgment was entered on October 21, 2010 (id., ECF No.
3). Welch filed an appeal (id., ECF No. 4), but the Court of Appeals subsequently granted
Welch’s motion to voluntarily dismiss the appeal. Welch v. United States, No. 10-6342 (6th
Cir. Nov. 17, 2010).
On November 10, 2010, Welch Filed a second § 2255 motion, accompanied by a
motion seeking leave to withdraw his guilty plea. (Welch v. United States, No. 10-1293JDT-egb (W.D. Tenn.) (ECF Nos. 1 & 2).) Welch claimed that (i) his guilty plea was
involuntary because of a defective indictment; (ii) the allegedly warrantless search of his
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home and subsequent seizure violated the Fourth Amendment;2 iii) the Court had no
jurisdiction to take an involuntary guilty plea; and (iv) the defective indictment and
involuntary plea represented a miscarriage of justice. In an order issued on January 4, 2011,
the Court transferred the motion to the Sixth Circuit pursuant to In re Sims, 111 F.3d 45 (6th
Cir. 1997). (No. 10-1293-JDT-egb, ECF No. 3.) The Court of Appeals denied leave to file
a second § 2255 motion. In re Welch, No. 11-5029 (6th Cir. Sept. 30, 2011).
On October 21, 2011, Welch filed a third § 2255 motion, which was docketed as civil
case number 11-1324-JDT-egb. Welch v. United States, No. 11-1324-JDT-egb (W.D. Tenn.)
He claimed that (i) his guilty plea was not intelligent and voluntary because the Court failed
to comply with the procedures in Federal Rule of Criminal Procedure 11; (ii) the failure of
the indictment to specify the drug quantity to be used at sentencing constituted a miscarriage
of justice; (iii) his lawyer rendered ineffective assistance by failing to advise him of his rights
and the drug quantity to be used at sentencing; and (iv) he is actually innocent of the thirtynine kilograms of cocaine base attributed to him at sentencing. (Id., ECF No. 1). In an order
issued on March 2, 2012, the Court administratively closed the case because the issues
presented were raised in Welch’s second § 2255 motion, which was still pending before the
Court of Appeals. (Id., ECF No. 3.)
On October 27, 2014, Welch filed the instant pro se § 2241 petition. (No. 14-1296JDT-egb, ECF No. 1.) Welch seeks to challenge his sentence in light of Persaud v. United

2

The PSR makes clear that the search of Welch’s home was pursuant to a warrant. (PSR

¶ 3.)
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States, 134 S. Ct. 1023 (2014) and Alleyne v. United States, 133 S. Ct. 2151 (2013), and on
various other grounds.
Federal prisoners may obtain habeas corpus relief pursuant to 28 U.S.C. § 2241 only
under limited circumstances. The “savings clause” in § 2255 provides as follows:
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 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(e).
“Construing this language, courts have uniformly held that claims asserted by federal
prisoners that seek to challenge their convictions or imposition of their sentences shall be
filed in the sentencing court under 28 U.S.C. § 2255, and that claims seeking to challenge the
execution or manner in which the sentence is served shall be filed in the court having
jurisdiction over the prisoner’s custodian under 28 U.S.C. § 2241.” Charles v. Chandler, 180
F.3d 753, 755-56 (6th Cir. 1999) (per curiam) (citations omitted). In this case, Petitioner is
attacking the imposition of his sentence and, therefore, habeas relief is not available to him
unless relief under § 2255 is inadequate or ineffective. Petitioner carries the burden of
demonstrating that the savings clause applies. Id. at 756.
The Sixth Circuit has construed the savings clause narrowly: “Significantly, the
§ 2255 remedy is not considered inadequate or ineffective simply because § 2255 relief has
already been denied, or because the petitioner is procedurally barred from pursuing relief

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under § 2255, or because the petitioner has been denied permission to file a second or
successive motion to vacate.” Id. (citations omitted). After its decision in Charles, the Sixth
Circuit reemphasized the narrow scope of the savings clause:
The circumstances in which § 2255 is inadequate and ineffective are
narrow, for to construe § 2241 relief much more liberally than § 2255 relief
would defeat the purpose of the restrictions Congress placed on the filing of
successive petitions for collateral relief. As we explained in Charles, “[t]he
remedy afforded under § 2241 is not an additional, alternative or supplemental
remedy to that prescribed under § 2255.”
United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001) (quoting Charles, 180 F.3d at
758) (additional citation omitted).
A prisoner can obtain relief under § 2241 only if he is “actually innocent” of the crime
of which he has been convicted. Martin v. Perez, 319 F.3d 799, 804-05 (6th Cir. 2003); see
also Charles, 180 F.3d at 757 (“No circuit court has to date permitted a post-AEDPA
petitioner who was not effectively making a claim of ‘actual innocence’ to utilize § 2241 (via
§ 2255’s ‘savings clause’) as a way of circumventing § 2255’s restrictions on the filing of
second or successive habeas petitions.”). “Actual innocence means factual innocence.”
Paulino v. United States, 352 F.3d 1056, 1061 (6th Cir. 2003) (citing Bousley v. United
States, 523 U.S. 614, 623 (1998)).
The Court of Appeals has not permitted prisoners to use the savings clause to attack
their sentences. See Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir. 2003) (“A challenge
to a sentence based on Apprendi cannot be the basis for an actual innocence claim under
Martin.”); Peterman, 249 F.3d at 461-62 (challenges that a sentence is not supported by

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adequate factual findings do not fall within the “savings clause”); see also Hayes v. Holland,
473 F. App’x 501, 502 (6th Cir. 2012) (“Hayes does not assert that he is actually innocent
of his federal offenses.

Rather, he claims actual innocence of the career offender

enhancement. The savings clause of section 2255(e) does not apply to sentencing claims.”);
Jones v. Castillo, 489 F. App’x 864, 866 (6th Cir. 2012) (per curiam) (“Jones argues that the
exception applies to his first claim because the Supreme Court narrowed the definition of
what constitutes a violent felony for purposes of determining armed career criminal status
in Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581, 170 L. Ed. 2d 490 (2008). Under
this new law, he argues, he is actually innocent of being an armed career criminal. However,
he does not argue that he is actually innocent of being a felon in possession of a firearm.
Claims alleging ‘actual innocence’ of a sentencing enhancement cannot be raised under
§ 2241.”), cert. denied, 133 S. Ct. 1632 (2013); Raymer v. Barron, 82 F. App’x 431, 432 (6th
Cir. 2003) (“In this case, Raymer has presented only a challenge to his sentencing under the
ACCA, not a claim that he is actually innocent of possession of a firearm by a felon.
Therefore, the district court properly concluded that the claim presented could not be
addressed under § 2241.”); Green v. Hemingway, 67 F. App’x 255, 257 (6th Cir. 2003)
(“[T]he ‘actual innocence’ exception of the savings clause of § 2255 is actual innocence of
the underlying, substantive offense, not ‘innocence’ of a sentencing factor.” (additional
internal quotation marks omitted)); Kellogg v. Snyder, 48 F. App’x 114, 115-16 (6th Cir.
2002) (rejecting challenge to sentence as a career offender under § 2241 because prisoner did
not show that § 2255 remedy was inadequate or ineffective).
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Welch is not entitled to relief on his § 2241 petition for several reasons. First, the
§ 2241 petition was filed in the wrong judicial district. The proper venue for a § 2241
petition is the judicial district where the prisoner is confined or his custodian is located.
Braden v. 30th Judicial Circuit Ct., 410 U.S. 484, 495-96 (1973); Roman v. Ashcroft, 340
F.3d 314, 318-20 (6th Cir. 2003); Wright v. United States Bd. of Parole, 557 F.2d 74, 77 (6th
Cir. 1977) (“The habeas corpus power of federal courts over prisoners in federal custody has
been confined by Congress through 28 U.S.C. § 2241 to those district courts within whose
territorial jurisdiction the custodian is located.”); see also United States v. Griffith, No. 951748, 1996 WL 316504, at *2 (6th Cir. June 10, 1996) (to the extent prisoner’s filing is
construed as § 2241 petition, “the Eastern District of Michigan is not the proper venue to file
a § 2241 motion for one incarcerated in Lompoc, California”). Because Welch is currently
confined in North Carolina, the Western District of Tennessee is not the proper venue for the
§ 2241 petition. Although the Court has the discretion to transfer this case to the district
where it should have been brought, see 28 U.S.C. § 1406(a), the Court declines to do so
because Welch plainly is not entitled to relief.
Welch is not entitled to relief in his § 2241 petition because the claims asserted
challenge the imposition of his sentence. Welch has no argument that he is actually innocent
of the offense of conviction. His various challenges to the sentence that was imposed do not
come within the savings clause of 28 U.S.C. § 2255.3

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The Supreme Court did not issue a substantive decision in Persaud v. United States. In
(continued...)
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Because Welch is not entitled to invoke § 2241, “it appears from the application that
the applicant or person detained is not entitled” to any relief. 28 U.S.C. § 2243. An order
for Respondent to show cause need not issue. The § 2241 petition is DENIED.
Federal prisoners who file petitions pursuant to 28 U.S.C. § 2241 challenging their
federal custody need not obtain certificates of appealability under 28 U.S.C. § 2253(c)(1).
Durham v. United States Parole Comm’n, 306 F. App’x 225, 229 (6th Cir. 2009); Melton v.
Hemingway, 40 F. App’x 44, 45 (6th Cir. 2002) (“a federal prisoner seeking relief under
§ 2241 is not required to get a certificate of appealability as a condition to obtaining review
of the denial of his petition”); see also Witham v. United States, 355 F.3d 501, 504 (6th Cir.
2004) (28 U.S.C. § 2253 “does not require a certificate of appealability for appeals from
denials of relief in cases properly brought under § 2241, where detention is pursuant to
federal process”).

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(...continued)
that case, the Supreme Court granted certiorari, vacated a decision by the Fourth Circuit Court of
Appeals, and remanded for further consideration in light of the position asserted by the Solicitor
General in his brief. 134 S. Ct. at 1023. Welch has not explained how Persaud is of assistance
to him.
Welch’s reliance on the Supreme Court’s decision in Alleyne v. United States is also
misplaced because that decision is not retroactively applicable to cases on collateral review. See,
e.g., In re Mazzio, 756 F.3d 487, 488 (6th Cir. 2014) (denying leave to file a second or
successive § 2255 motion “[b]ecause Alleyne has not been made retroactive to cases on collateral
review by the Supreme Court”); Rogers v. United States, 561 F. App’x 440, 443-44 (6th Cir.)
(“[T]he constitutional rules of criminal procedural [sic] adopted in Alleyne and Peugh [v. United
States, 133 S. Ct. 2072 (2013),] are not available on collateral review of Rogers’s sentence,
because the judgment became final before the Court’s decisions in Alleyne and Peugh.”), cert.
denied, 135 S. Ct. 500 (2014).
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If Petitioner files a notice of appeal, he must either pay the entire $505 appellate filing
fee required by 28 U.S.C. §§ 1913 and 1917 or obtain pauper status pursuant to Federal Rule
of Appellate Procedure 24(a). Kincade v. Sparkman, 117 F.3d 949, 952 (1997). Rule 24(a)
provides that a party seeking pauper status on appeal must first file a motion in the district
court, along with a supporting affidavit. Fed. R. App. P. 24(a)(1). However, Rule 24(a) also
provides that if the district court certifies an appeal would not be taken in good faith, or
otherwise denies leave to appeal in forma pauperis, the party must file his motion to proceed
in forma pauperis in the appellate court. See Fed. R. App. P. 24(a)(4)-(5).
In this case, because Petitioner clearly is not entitled to relief, the Court finds that any
appeal would not be taken in good faith. It is therefore CERTIFIED, pursuant to Federal
Rule of Appellate Procedure 24(a), that any appeal in this matter is not taken in good faith,
and leave to appeal in forma pauperis is DENIED. Accordingly, if Petitioner files a notice
of appeal, he must also pay the full $505 appellate filing fee to this Court or file a motion to
proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of Appeals.
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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