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Colon v. Terris

United States District Court, Eastern District of Michigan, Southern Division

April 29, 2015

JOSE COLON, Petitioner,
v.
J.A. TERRIS, Respondent.

ORDER SUMMARILY DISMISSING THE HABEAS PETITION, BUT GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE

Petitioner Jose Colon (“Petitioner”), who is currently an inmate at the Federal Correctional Institution in Milan, Michigan, has filed a habeas corpus petition under 28 U.S.C. § 2241. Petitioner was convicted of drug and firearm offenses in the United States District Court for the Southern District of New York, and ultimately sentenced to forty years in prison. In his habeas petition, Petitioner appears to allege that his trial attorney performed deficiently by advising him to withdraw his guilty plea and by not renegotiating a plea bargain after the trial court determined that the initial plea agreement was void. Because § 2241 authorizes habeas petitions challenging the execution of the sentence, or the manner in which it is served, rather than the legality of the sentence, § 2241 is not the proper vehicle to challenge the legality of Petitioner’s federal conviction and sentence. Here Petitioner’s claim is that his sentence was unlawful, not that the manner of its execution is in violation of his rights. Consequently, the habeas petition under § 2241 must be dismissed.

I. BACKGROUND

On February 9, 1993, Petitioner pleaded guilty to drug and firearm charges in the Southern District of New York. Several of his co-defendants, however, proceeded to trial. The trial court declared a mistrial in the co-defendants’ case after the Government informed the court that certain police officers who participated in the investigation had been arrested on drug-related charges. Petitioner’s attorney then moved to withdraw Petitioner’s guilty plea, and the trial court determined that, in light of the mistrial in the co-defendants’ case, Petitioner’s plea was void. Petitioner was then tried before a jury. Although the trial court previously assured Petitioner that he would be able to introduce evidence of the police corruption in the underlying investigation, it later reversed course and Petitioner was not permitted to use such evidence as a defense at trial.

On May 9, 1994, the jury found Petitioner guilty of one count of conspiracy to distribute heroin, one count of possession of heroin with intent to distribute it, and one count of using and carrying a firearm during and in relation to narcotics trafficking, 18 U.S.C. § 924(c). The trial court sentenced Petitioner to life imprisonment on the narcotics counts and to five consecutive years in prison on the firearm count. On direct appeal, the Second Circuit Court of Appeals affirmed Petitioner’s drug convictions, but vacated his firearm conviction in light of Bailey v. United States, 516 U.S. 137, 143 (1995) (holding that “§ 924(c)(1) 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 offense”). The Second Circuit remanded Petitioner’s case for re-sentencing on the two narcotics counts. See United States v. Rosario, 111 F.3d 293, 300 (2d Cir. 1997).

On remand, Petitioner argued, among other things, that his trial attorney was ineffective for advising him to withdraw his previous guilty plea and proceed to trial. The trial court rejected Petitioner’s argument and re-sentenced him to consecutive terms of twenty years for each of the narcotics convictions, for a total of forty years in prison. Petitioner appealed the re-sentencing and once again argued that his trial attorney was ineffective for advising him to withdraw his guilty plea and go to trial after the district court ruled that he could not admit evidence of the police corruption that had led to the mistrial against his co-defendants. The Second Circuit found no merit in Petitioner’s ineffective-assistance-of-counsel claim and affirmed the trial court’s judgment of conviction. See United States v. Millan, 22 Fed. App’x 35, 36-37 (2d Cir. 2001).

Petitioner subsequently filed a motion to vacate, set aside, or correct his sentence, under 28 U.S.C. § 2255. The motion raised certain new claims about Petitioner’s trial and appellate attorneys. The trial court rejected his claims and denied his motion. See Colon v. United States, Nos. 02 Civ. 8671 and 91 Cr. 685, 2003 WL 22517132 (S.D.N.Y. Nov. 6, 2003). Petitioner later moved to vacate the trial court’s decision pursuant to Federal Rule of Civil Procedure 60(b)(6), but the trial court found no merit in his claims and denied his motion. See Colon v. United States, Nos. 02 Civ. 8671 and 91 Cr. 685, 2006 WL 3705804 (S.D. N.Y. Dec. 14, 2006).

On May 13, 2013, Petitioner filed this habeas corpus petition. He again alleges that his trial attorney was ineffective for advising him to go to trial and that he is being unlawfully detained due to the trial court’s erroneous interpretation of his Sixth Amendment right to effective assistance of counsel. In support of this claim, Petitioner cites Lafler v. Cooper, 132 S.Ct. 1376 (2012), in which the Supreme Court held that, where an attorney’s deficient performance results in the rejection of a plea offer and the defendant’s subsequent conviction at trial, the defendant:

must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.

Id. at 1385.

Lafler was decided after the trial court and the Second Circuit ruled on Petitioner’s § 2255 and Rule 60(b)(6) motions. Petitioner therefore argues that the trial and circuit court rulings on his ineffective-assistance-of-counsel claim were based on an incorrect interpretation of the law. And because trial counsel’s allegedly ineffective assistance led to a greater sentence than what Petitioner was promised under the initial plea agreement, he argues that there is a reasonable probability that, if his counsel had tried to renegotiate the plea rather than go to trial, “the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed” (Dkt. 1). Petitioner maintains that he has served more time in prison than he would have received under the plea agreement and therefore seeks immediate release from custody.

II. DISCUSSION

Federal prisoners may bring a habeas corpus petition under § 2241 in the district where they are incarcerated if they are challenging the execution of their sentences or the manner in which their sentences are served. See United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001); Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999). But the primary mechanism for challenging the legality of a federal sentence or for claiming the right to be released as a result of an unlawful sentence is to file a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 in the sentencing court. See Terrell v. United States, 564 F.3d 442, 447 (6th Cir. 2009); Peterman, 249 F.3d at 461; Charles, 180 F.3d at 755-56. Petitioner is challenging the legality and duration of his sentence, as opposed to, the execution or manner in which he is serving his sentence. Therefore, the proper remedy for his claim is a motion to vacate, set aside, or correct the sentence under § 2255.

Petitioner invokes the “savings clause” of § 2255, which provides an exception to the rule that federal prisoners must challenge the legality of their sentences in a § 2255 motion. The exception applies when it “appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). Under highly exceptional circumstances, a federal prisoner may challenge his conviction and the imposition of his sentence under § 2241, instead of § 2255. See 28 U.S.C. § 2255(e); Charles v. Chandler, 180 F.3d 753, 755–56 (6th Cir. 1999). Section 2255 provides a safety valve whereby federal prisoners may bring such a § 2241 claim if it appears the remedy afforded under § 2255 is “inadequate or ineffective to test the legality of his detention.” United States v. Hayman, 342 U.S. 205, 209 (1952); In re Hanserd, 123 F.3d 922, 929 (6th Cir. 1997). This “savings clause” applies when the failure to allow some form of collateral review would raise “serious constitutional questions.” Frost v. Snyder, 13 Fed App’x. 243, 248 (6th Cir. 2001) (quoting Triestman v. United States, 124 F.3d 361, 377 (2d Cir. 1997)). It is the prisoner’s burden to prove the remedy under § 2255 is inadequate or ineffective. See Charles, 180 F.3d at 756. ...


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