Collier v. Batts

Filing 13

ORDER DENYING PETITION UNDER 28 U.S.C. § 2241; CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH; AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by Judge Mark S. Norris on 07/16/2021. (Norris, Mark)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

HENRY WAYNE COLLIER,
Petitioner,
v.

No. 2:18-cv-02369-MSN-tmp

WARDEN, FCI GILMER,
Respondent.

ORDER DENYING PETITION UNDER 28 U.S.C. § 2241,
CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH,
AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner, Henry Wayne Collier, 1 applied for habeas corpus relief under 28 U.S.C. § 2241
(“§ 2241 Petition”). (ECF No. 1.) Respondent filed a response in opposition. (ECF No. 9.) For
the reasons below, this Court DENIES the § 2241 Petition.
PROCEDURAL HISTORY
I.

Petitioner’s Federal Criminal Case and Collateral Challenges
On May 8, 2007, and October 2, 2007, Petitioner pled guilty to three counts of bank

robbery, in violation of 18 U.S.C. § 2113(a), and one count of aggravated bank robbery, in
violation of 18 U.S.C. § 2113(d), in the United States District Court for the Middle District of
North Carolina. See United States v. Collier, Case Nos. 1:07-00055-WO-1, 1:07-cr-00119-WO1, 1:07-cr-00120-WO-1, 1:07-00307-WO-1 (M.D.N.C. 2007). At sentencing, the district court

1. Collier is a federal prisoner, Bureau of Prisons (“BOP”) register number 06769-058. At
the time Collier filed this habeas petition, he was housed at the Federal Correctional Institution
(“FCI”) in Memphis, Tennessee. The Government is now housing him at the FCI Gilmer in
Glenville, West Virginia.

applied the career offender enhancement under U.S.S.G. § 4B1.1 based on three prior qualifying
felony convictions. (Case No. 1:07-cr-00119-WO-1, ECF No. 21.) Petitioner was sentenced to
220 months in prison under the advisory sentencing guidelines. (Id., ECF No. 17.)
In 2016, Petitioner filed a motion under 28 U.S.C. § 2255 seeking relief under Johnson v.
United States, 576 U.S. 591 (2015), which was denied. (ECF No. 18, ECF No. 29.)
II.

Petitioner’s § 2241 Petition
Petitioner now petitions pro se under § 2241, relying on Hill v. Masters, 836 F.3d 591 (6th

Cir. 2016) and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), to challenge his career offender
enhancement. (Civ. No. 18-2369, ECF No. 1 at PageID 4–5, ECF No. 1-1 at PageID 8–16.) Collier
alleges that 18 U.S.C. § 2113(a) is “vague and unconstitutional” under the holding of Dimaya. (Id.
at PageID 5.) The Warden responds that Collier has failed to show that § 2255 is “inadequate or
ineffective” for relief or that he is entitled to relief under § 2241. (ECF No. 9 at PageID 33.)
STANDARD OF REVIEW
This Court is authorized to issue a writ of habeas corpus under 28 U.S.C. § 2241(c)(3)
when a prisoner “is in custody in violation of the Constitution or laws or treaties of the United
States.” 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 sentence shall be filed in
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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); see also United States v. Peterman, 249 F.3d 458, 461
(6th Cir. 2001) (“Section 2255 is the primary avenue for relief for federal prisoners protesting the
legality of their sentence, while § 2241 is appropriate for claims challenging the execution or
manner in which the sentence is served.”); Wright v. Spaulding, 939 F.3d 695, 698 (6th Cir. 2019)
(“The rule was simple: § 2255 for attacks on a sentence, § 2241 for other challenges to detention”).
In this case, Collier is attacking the imposition of his sentence. Habeas relief is not available to
him unless relief under § 2255 is inadequate or ineffective. Collier has the burden of demonstrating
that the savings clause applies. Charles, 180 F.3d at 756.
“The circumstances in which § 2255 is inadequate and ineffective are narrow[.]” Peterman,
249 F.3d at 461. “[T]he § 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 under § 2255, or because the petitioner has been denied permission to file a second
or successive motion to vacate.” Charles, 180 F.3d at 756 (citations omitted). In Wright, 939 F.3d
at 703, the Sixth Circuit states:
A federal prisoner who has already filed a § 2255 motion and cannot file another
one cannot access § 2241 just because a new Supreme Court case hints his
conviction or sentence may be defective. Rather, the prisoner must also show that
binding adverse precedent (or some greater obstacle) left him with “no reasonable
opportunity” to make his argument any earlier, “either when he was convicted and
appealed or later when he filed a motion for postconviction relief under section
2255[.]” [In re Davenport, 147 F.3d 605, 610 (7th Cir. 1998)]. Otherwise, § 2255
is simply not inadequate or ineffective to test his claim. And nothing in this court’s
later precedents gainsays this principle.

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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,” not just legal insufficiency.
Paulino v. United States, 352 F.3d 1056, 1061 (6th Cir. 2003) (citing Bousley v. United States, 523
U.S. 614, 623 (1998)). Until recently, “[c]laims alleging ‘actual innocence’ of a sentencing
enhancement [could not] be raised under § 2241.” Jones v. Castillo, 489 F. App’x 864, 866 (6th
Cir. 2012).
In Hill v. Masters, 836 F.3d 591 (6th Cir. 2016), the Sixth Circuit held that inmates can
challenge their sentences under § 2241 if they can show “(1) a case of statutory interpretation, (2)
that is retroactive and could not have been invoked in the initial § 2255 motion, and (3) that the
misapplied sentence presents an error sufficiently grave to be deemed a miscarriage of justice.”
Hill, 836 F.3d at 595. The third requirement is satisfied by
(1) prisoners who were sentenced under the mandatory guidelines regime preUnited States v. Booker, 543 U.S. 220 (2005), (2) who are foreclosed from filing a
successive petition under § 2255, and (3) when a subsequent, retroactive change in
statutory interpretation by the Supreme Court reveals that a previous conviction is
not a predicate offense for a career-offender enhancement.
Id. at 599–600 (parallel citations omitted).
ANALYSIS
Petitioner’s claim here does not satisfy the Hill test and it does not fall under either of the
subsets of cases redressable under the savings clause. Collier seeks to raise a constitutional claim
rather than a claim of statutory interpretation. He does not contend that his sentence exceeds the

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statutory maximum prescribed by statute. Furthermore, the court did not impose the sentence
under mandatory sentencing guidelines. The trial court sentenced Petitioner under the advisory
guidelines. (See ECF No. 9 at PageID 33.) The Hill court did not extend the savings-clause
remedy to defendants sentenced under the advisory guidelines and emphasized that it was only
extending the remedy to a “narrow subset” of § 2241 petitions. See Hill, 836 F.3d at 599.
The Sixth Circuit has held that non-constitutional challenges to an advisory guidelines
range are unavailable on collateral review in the § 2255 context. Snider v. United States, 908 F.3d
183, 189–90 (6th Cir. 2018). Other courts have generally agreed that advisory guideline errors
cannot be fundamental defects warranting collateral relief. United States v. Foote, 784 F.3d 931,
939 (4th Cir. 2015) (“[M]isapplication of the sentencing guidelines does not amount to a
miscarriage of justice.” (citation omitted)); Spencer v. United States, 773 F.3d 1132, 1139–42
(11th Cir. 2014) (en banc); Hawkins v. United States, 706 F.3d 820, 822–25 (7th Cir. 2013); see
also Sun Bear v. United States, 644 F.3d 700, 705–06 (8th Cir. 2011) (en banc) (holding that even
mandatory guideline errors are not fundamental defects).
Because Petitioner’s claims here do not fall into the narrow subset of claims allowed under
Hill, he may not use § 2241 to challenge his sentence. The Court therefore DENIES Petitioner’s
§ 2241 Petition.
APPELLATE ISSUES
Federal prisoners who file petitions under 28 U.S.C. § 2241 challenging their federal
custody need not obtain certificates of appealability under 28 U.S.C. § 2253(c)(1). Witham v.
United States, 355 F.3d 501, 504 (6th Cir. 2004); Melton v. Hemingway, 40 F. App’x 44, 45 (6th
Cir. 2002).

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Habeas petitioners seeking to appeal must pay the $505 filing fee required by 28 U.S.C. §§
1913 and 1917. To appeal in forma pauperis in a habeas case under 28 U.S.C. § 2241, the
petitioner must obtain pauper status under Federal Rule of Appellate Procedure 24(a). Kincade v.
Sparkman, 117 F.3d 949, 952 (6th Cir. 1997). Rule 24(a) provides that a party seeking pauper
status on appeal must first move in the district court, along with a supporting affidavit. Fed. R.
App. P. 24(a)(1). Rule 24(a) also provides, however, that if the district court certifies that an appeal
would not be taken in good faith, or otherwise denies leave to appeal in forma pauperis, the
petitioner must move to proceed in forma pauperis in the appellate court. See Fed. R. App. P.
24(a)(4)–(5).
Because Petitioner is not entitled to relief here, the Court finds that any appeal would not
be taken in good faith. The Court therefore CERTIFIES, under Federal Rule of Appellate
Procedure 24(a), that any appeal here would not be taken in good faith. So the Court DENIES
leave to appeal in forma pauperis. 2
IT IS SO ORDERED, this the 16th day of July, 2021.
s/ Mark Norris
MARK S. NORRIS
UNITED STATES DISTRICT JUDGE

2. If Petitioner files a notice of appeal, he must also pay the full $505 appellate filing fee
or move to proceed in forma pauperis and supporting affidavit in the United States Court of
Appeals for the Sixth Circuit within 30 days.
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