United States District Court, E.D. Michigan, Southern Division
BENJAMIN P. FOREMAN, Petitioner,
J.A. TERRIS, Respondent,
OPINION AND ORDER DISMISSING PETITION FOR WRIT OF
M. LAWSON United States District Judge
Benjamin P. Foreman is a federal prisoner presently confined
at the Federal Correctional Institution in Milan, Michigan.
He is serving a sentence imposed by the United States
District Court for the Western District of Michigan following
his guilty plea to drug and firearms offenses. Before the
Court is his petition for a writ of habeas corpus filed under
28 U.S.C. § 2241. The petitioner asserts in his present
petition that the Court should correct the record of
proceedings to indicate that he is “no longer a career
offender.” The Court has completed a preliminary review
of the petition under Rule 4 of the Rules Governing §
2254 Cases, 28 U.S.C. foll. § 2254, and concludes that
the petition must be dismissed for several reasons outlined
below. “Although [the] petitioner brought this petition
under § 2241 and not § 2254, the rules governing
§ 2254 cases may be applied at the discretion of the
district court judge in habeas petitions not brought under
§ 2254.” Perez v. Hemingway, 157
F.Supp.2d 790, 796 (E.D. Mich. 2001) (citing Rules Governing
§ 2254 Cases, Rule 1(b), 28 U.S.C. foll. § 2254
(“The district court may apply any or all of these
rules to a habeas corpus petition not covered by Rule
not the first post-conviction challenge the petitioner has
mounted against his convictions and sentences. His journey
began when he pleaded guilty in the Western District of
Michigan to possession with intent to distribute cocaine
base, possession with intent to distribute cocaine, and
possessing a firearm in furtherance of a drug trafficking
crime under a plea agreement. He was sentenced to concurrent
prison terms totaling 240 months on the drug convictions and
a consecutive term of 60 months for the firearm offense. His
appeal to the Sixth Circuit was dismissed because his plea
agreement contained a waiver of his appeal rights. United
States v. Foreman, No. 06-2192 (6th Cir. Sept. 6, 2007).
2008, the petitioner filed a motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255, and
that motion was denied by the district court. Foreman v.
United States, No. 08-01115 (W.D. Mich. July 19, 2010).
The Sixth Circuit denied a certificate of appealability
Foreman v. United States, No. 10-2415 (6th Cir. June
2010, the petitioner moved to withdraw his guilty plea on the
firearm count. The trial court construed the motion as a
second or successive motion to vacate and transferred the
matter to the Sixth Circuit. United States v.
Foreman, No. 06-00030 (W.D. Mich. Aug. 19, 2010). The
petitioner appealed, but the Sixth Circuit dismissed his
appeal for want of prosecution. In re Foreman, No.
10-2077 (6th Cir. Oct. 13, 2010).
petitioner also filed a motion pursuant to Federal Rule of
Civil Procedure 59(e) to alter or amend the trial court's
decision denying his motion to vacate sentence, which was
denied in part and transferred to the Sixth Circuit as a
second or successive motion to vacate sentence. Foreman
v. United States, No. 08-01115 (W.D. Mich. Oct. 18,
2010). The Sixth Circuit remanded the case for consideration
of all of Petitioner's claims. In re Foreman,
No. 10-2370 (6th Cir. Nov. 1, 2011). On remand, the trial
court denied relief on the remaining claims. Foreman v.
United States, No. 08-01115 (W.D. Mich. Aug. 14, 2012).
The Sixth Circuit thereafter denied a certificate of
appealability. Foreman v. United States, No. 12-2202
(6th Cir. March 13, 2013).
petitioner subsequently filed five more habeas petitions in
federal court, all of which summarily were dismissed.
Foreman v. Terris, No. 15-13764 (E.D. Mich. Oct. 29,
2015); Foreman v. Terris, No. 14-14925 (E.D. Mich.
April 27, 2015); Foreman v. Terris, No. 14-13336
(E.D. Mich. Sept. 17, 2014); Foreman v. Terris, No.
13-12154 (E.D. Mich. July 12, 2013); Foreman v.
Terris, No. 13-10734 (E.D. Mich. March 20, 2013). The
Sixth Circuit also denied authorization for the petitioner to
proceed on a second or successive motion to vacate sentence
under § 2255. In re Foreman, No. 14-1478 (6th
Cir. Oct. 27, 2014).
present petition is yet another rerun of claims and arguments
previously raised, and previously dismissed by this Court.
Once again, and for the same reasons already explained by
this and other courts of this district, the petition must be
petition for a writ of habeas corpus is filed, the district
court “must promptly examine it . . . [and] dismiss
[it] [i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court.” Rules Governing §
2254 Cases, Rule 4, 28 U.S.C. foll. § 2254;
McFarland v. Scott, 512 U.S. 849, 856 (1994);
Carson v. Burke, 178 F.3d 434, 436 (6th Cir. 1999);
Allen v. Perini, 424 F.2d 134, 140 (6th Cir. 1970).
As the Court previously and repeatedly has explained, there
are several reasons why the petitioner is not entitled to
section 2241 is not the appropriate statute for seeking
relief on the petitioner's claims that he is in custody
under a “void” judgment, or that he is
“actually innocent” of being a career offender.
As the Sixth Circuit has explained, section 2241 only may be
used by a federal prisoner to challenge the execution of his
sentence. Capaldi v. Pontesso, 135 F.3d 1122, 1123
(6th Cir. 1998). A motion to vacate sentence under 28 U.S.C.
§ 2255 is the proper avenue for raising a claim that a
sentence was imposed in violation of the federal constitution
or laws. Ibid. There is an exception to this general
rule, but it is narrow and only allows a challenge to a
sentence under section 2241 if it appears that the remedy
afforded by 2255 is inadequate or ineffective to test the
legality of the petitioner's detention. See Wooten v.
Cauley, 677 F.3d 303, 307 (6th Cir. 2012). The
petitioner has not shown - or even alleged - that section
2255 is inadequate to provide relief on the grounds alleged
here. That is the petitioner's burden to carry. The mere
fact that a prior motion to vacate sentence may have proven
unsuccessful does not satisfy that burden. In Re
Gregory, 181 F.3d 713, 714 (6th Cir. 1999). Denial of a
previous section 2255 motion or a procedural bar against
bringing one does not suffice, either. Wooten, 677
F.3d at 303; Charles v. Chandler, 180 F.3d 753, 756
(6th Cir. 1999).
even if the Court were to consider the merits of the claim,
the petition fails. In his present petition, the petitioner
once again raises the claim that he is being held in federal
custody under a judgment that is void. In this latest variant
of the petitioner's several attempts to collaterally
attack his conviction and sentence, he has styled his
petition as a request for the Court to “correct the
presentence report to indicate that he is no longer a career
offender.” But the petitioner does not allege that the
judgment of conviction under which he presently is held has
been vacated or amended, and any indication in the PSR that
the petitioner was sentenced as a career offender therefore
correctly reflects the nature of his status at sentencing.
The “correction” of the PSR that the petitioner
seeks necessarily would require the Court first to vacate the
judgment of conviction by which his sentence was imposed, and
that is not relief that the petitioner can obtain via section
2241. All of the arguments that the petitioner advances to
support his claim that the judgment is “void”
were discussed and summarily rejected by the district court
in Foreman v. Terris, No. 15-13764 (E.D. Mich. Oct.
29, 2015), and they need not be addressed again here.
the petitioner's claim that he is “actually
innocent” of a sentencing enhancement is not a
sufficient basis to allow him to proceed under § 2241.
The Sixth Circuit has not extended the actual innocence
exception to petitioners challenging only their sentence.
United States v. Peterman, 249 F.3d 458, 462 (6th
Cir. 2001); see also Hayes v. Holland, 473 F.
App'x 501, 502 (6th Cir. 2012) (citing
Peterman); Woods v. Coakley, No. 13-1388,
2013 WL 3818163, *4-5 (N.D. Ohio July 22, 2013); Ross v.
Zuercher, No. 09-152, 2010 WL 568528, *2 (E.D. Ky. Feb.
12, 2010) (dismissing § 2241 petition raising sentencing
challenge); accord Sorrell v. Bledsoe, No. 10-1649,
2011 WL 2728287, *2 (3d Cir. July 14, 2011) (dismissing
§ 2241 petition seeking sentencing relief under Supreme
Court law). This Court is bound by the ...