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Foreman v. Terris

United States District Court, E.D. Michigan, Southern Division

April 27, 2015

BENJAMIN P. FOREMAN, Petitioner,
v.
J. A. TERRIS, Respondent.

OPINION AND ORDER DENYING PETITIONER'S MOTIONS FOR A DECLARATORY JUDGMENT AND FOR RELEASE FROM CUSTODY AND SUMMARILY DISMISSING THE HABEAS PETITION

ROBERT H. CLELAND, District Judge.

This is a pro se habeas corpus action under 28 U.S.C. § 2241. Petitioner Benjamin P. Foreman is an inmate at the Federal Correctional Institution in Milan, Michigan. He seeks to be re-sentenced without consideration of a career-offender designation in his record. For the reasons that follow, the habeas petition will be dismissed and the pending motions will be denied.

I. BACKGROUND

A. Petitioner's Convictions, Sentence, and Previous Actions

In 2006, Petitioner pleaded guilty in the Western District of Michigan to: (1) possession with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii); (2) possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and (3) possession of firearms during, and in furtherance of, drug trafficking crimes in violation of 18 U.S.C. § 924(c)(1)(A)(i). On September 7, 2006, United States District Judge Robert Holmes Bell sentenced Petitioner to two concurrent terms of 240 months in prison for the first and second counts and to a consecutive term of sixty months for the third count. See United States v. Foreman, No. 1:06-cr-00030 (W.D. Mich. Sept. 7, 2006). Petitioner appealed his sentence, but the United States Court of Appeals for the Sixth Circuit dismissed his appeal for lack of jurisdiction because Petitioner's plea agreement included a waiver of the right to appeal his sentence. See United States v. Foreman, No. 06-2192 (6th Cir. Sept. 7, 2007).

In 2008, Petitioner moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Judge Bell determined that two of Petitioner's claims lacked merit and that his other claims were barred by his plea agreement. See Foreman v. United States, No. 1:08-cv-01115, 2010 WL 2854274 (W.D. Mich. July 19, 2010). The Sixth Circuit subsequently denied a certificate of appealability. See Foreman v. United States, No. 10-2415 (6th Cir. June 3, 2011).

In 2010, Petitioner moved to withdraw his guilty plea on count three. Judge Bell transferred the motion to the Sixth Circuit after construing the motion as a second or successive motion to vacate sentence. See United States v. Foreman, No. 1:06-cr-00030, 2010 WL 3273503 (W.D. Mich. Aug. 19. 2010). Petitioner appealed Judge Bell's decision, but the Sixth Circuit dismissed his appeal for want of prosecution. See In re Foreman, No. 10-2077 (6th Cir. Oct. 13, 2010).

In the meantime, Petitioner filed a motion under Federal Rule of Civil Procedure 59(e) to alter or amend Judge Bell's decision denying his motion to vacate sentence. Judge Bell denied three of Petitioner's claims and transferred his remaining four new claims to the Sixth Circuit as a second or successive motion to vacate sentence. See Foreman v. United States, No. 1:08-cv-01115, 2010 WL 4102544 (W.D. Mich. Oct. 18, 2010). The Sixth Circuit, however, remanded the case, stating that Judge Bell should have considered all of Petitioner's claims instead of transferring four of the claims to the Sixth Circuit. See In re Foreman, No. 10-2370 (6th Cir. Nov. 1, 2011). On remand, Judge Bell determined that the four new claims raised in Petitioner's motion to alter or amend the judgment did not require amendment of his judgment. See Foreman v. United States, No. 1:08-cv-01115 (W.D. Mich. Aug. 14, 2012). The Sixth Circuit denied Petitioner's subsequent request for a certificate of appealability. See Foreman v. United States, No. 12-2202 (6th Cir. Mar. 13, 2013).

Petitioner also filed three habeas corpus petitions in federal court. All three petitions were summarily dismissed. See Foreman v. Terris, No. 14-13336, 2014 WL 4658714 (E.D. Mich. Sept. 17, 2014) ; Foreman v. Terris, No. 13-12154, 2013 WL 3582916 (E.D. Mich. July 12, 2013); Foreman v. Terris, No. 13-10734, 2013 WL 1163377 (E.D. Mich. Mar. 20, 2013). And, on October 27, 2014, the Sixth Circuit denied Petitioner's motion for an order authorizing the District Court to consider a second or successive motion to vacate sentence under § 2255. See In re Foreman, No. 14-1478 (6th Cir. Oct. 27, 2014).

B. The Instant Petition and Pending Motions

On December 29, 2014, Petitioner filed the pending habeas corpus petition. He claims that: (1) the Bureau of Prisons did not comply with Program Statement 5800.11 and failed to adequately review his grievance about the alleged error in his presentence investigation report (PSIR); (2) his sentence was imposed on the basis of materially untrue or unreliable information concerning his criminal history; and (3) his sentence was enhanced by a state judgment that was dismissed and expunged from his record.

By way of explanation, Petitioner alleges that, in 2006, a federal probation officer prepared a PSIR in which he designated Petitioner as a career offender, in part, because of a state crime for delivery/manufacture of less than fifty grams of cocaine. The probation officer assessed one criminal history point for the offense. Judge Bell allegedly adopted the PSIR and enhanced Petitioner's sentence due to the probation officer's designation of Petitioner as a career offender. Petitioner contends that the state crime for delivery of cocaine should have been listed as a pending charge, not as a prior adult conviction. According to Petitioner, the probation officer's use of the state crime to designate him a "career offender" raised his offense level from 32 to 37 and thereby increased his sentence by ten years. And because the state drug case ultimately was dismissed, Petitioner contends that he should be re-sentenced without consideration of the career-offender enhancement. He also seeks to have the state charge expunged from his central office file with the Bureau of Prisons.

On January 29, 2015, Petitioner filed a motion for a declaratory judgment and an emergency motion for release from custody. In the former motion, Petitioner seeks to have the Court declare that he is not a career offender because his prior state case for delivery/manufacture of less than fifty grams of cocaine was dismissed and expunged.

In the latter motion, Petitioner seeks release from custody pending a decision on his habeas petition. He claims that he will live with his parents until he can marry his fiancee and that he will seek employment as a paralegal. He also alleges that he will be a productive member of society and that he will not flee or pose a danger to the community. On ...


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