United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING WITHOUT PREJUDICE THE
PETITION FOR A WRIT OF HABEAS CORPUS
VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE
prisoner Demond Deshon Smith (“Petitioner”),
currently confined at the Federal Correctional Institution in
Milan, Michigan, has filed a pro se Petition for a
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241
challenging his federal sentencing enhancement. He seeks the
vacation of his sentence and a remand for re-sentencing.
after the filing of a habeas petition, the Court must
undertake a preliminary review of the petition to determine
whether “it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner
is not entitled to relief in the district court.” Rule
4, Rules Governing § 2254 Cases; see also 28
U.S.C. § 2243 (directing courts to grant the writ or
order the respondent to answer “unless it appears from
the application that the applicant or person detained is not
entitled thereto”); Perez v. Hemingway, 157
F.Supp.2d 790, 796 (E.D. Mich. 2001) (discussing authority of
federal courts to summarily dismiss § 2241 petitions).
If, after preliminary consideration, the Court determines
that the petitioner is not entitled to relief, the Court must
summarily dismiss the petition. See Allen v. Perini,
424 F.2d 134, 141 (6th Cir. 1970) (district court has duty to
“screen out” petitions that lack merit on their
face). A dismissal under Rule 4 includes those petitions
which raise legally frivolous claims, as well as those
containing factual allegations that are palpably incredible
or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th
Cir. 1999). After undertaking such review, and for the
reasons stated herein, the Court concludes that the petition
must be dismissed.
Facts and Procedural History
October 18, 2012, Petitioner pleaded guilty to felon in
possession of a firearm in violation of 18 U.S.C. §
922(g) in the United States District Court for the Eastern
District of Michigan. On April 11, 2013, he was sentenced, as
an armed career criminal, to 144 months imprisonment.
United States v. Smith, No. 2:12-CR-20103 (E.D.
Mich.) (Rosen, J.). His direct appeal to the United States
Court of Appeals for the Sixth Circuit was dismissed as
untimely. United States v. Smith, No. 13-1741 (6th
Cir. Aug. 15, 2013).
then filed a motion to vacate sentence pursuant to 28 U.S.C.
§ 2255 with the District Court, which was denied on
November 17, 2015. United States v. Smith, Nos.
2:12-CR-20103, 2:14-CV-12862 (E.D. Mich.) (Rosen, J.). The
District Court denied Petitioner's Motion to Alter or
Amend the Judgment on December 30, 2015 and denied his Motion
for a Certificate of Appealability on May 3, 2016.
Id. The Sixth Circuit also denied a certificate of
appealability. Smith v. United States, No. 16-1122
(6th Cir. Sept. 15, 2016). The United States Supreme Court
recently denied certiorari. Smith v. United States,
No. 16-7447 (U.S. Feb. 22, 2017).
interim, on September 19, 2016, Petitioner filed a Motion to
Supplement or Amend his Motion to Vacate Sentence under 28
U.S.C. § 2255 with the District Court based upon the
Supreme Court's ruling in Mathis v. United
States, U.S., 136 S.Ct. 2243 (June 23, 2016). The
District Court treated the request as a second or successive
motion to vacate sentence and transferred the matter to the
Sixth Circuit on January 30, 2017. Smith v. United
States, Nos. 2:12-CR-20103, 2:14-CV-12862 (E.D. Mich.)
(Rosen, J.). The matter remains pending in the Sixth Circuit.
dated the instant habeas petition on February 12, 2017 and it
was filed by this Court on February 15, 2017. In his current
pleadings, Petitioner asserts that he is entitled to habeas
relief because one of his Michigan predicate offenses is not
a serious drug offense that can be used to enhance his
sentence past the statutory maximum under the Armed Career
Criminal Act in light of Mathis, supra. Petitioner
asserts that his remedy under 28 U.S.C. § 2255 is
inadequate or ineffective and that he is actually innocent of
the enhanced sentence.
brings this action as a habeas petition under 28 U.S.C.
§ 2241. His habeas claim, however, concerns the validity
of his federal felon in possession sentence. A motion to
vacate sentence under 28 U.S.C. § 2255 filed with the
trial court is the proper avenue for relief on a federal
prisoner's claims that his conviction and/or sentence
were imposed in violation of the federal constitution or
federal law. Capaldi v. Pontesso, 135 F.3d 1122,
1123 (6th Cir. 1998); see also McCully v. United
States, 60 F. App'x 587, 588 (6th Cir. 2003) (citing
United States v. Peterman, 249 F.3d 458, 461 (6th
Cir. 2001)). A federal prisoner may bring a claim challenging
his conviction or the imposition of sentence under 28 U.S.C.
§ 2241 only if it appears that the remedy afforded under
§ 2255 is inadequate or ineffective to test the legality
of his detention. Charles v. Chandler, 180 F.3d 753,
756 (6th Cir. 1999); see also Wooton v. Cauley, 677
F.3d 303, 307 (6th Cir. 2012). Habeas corpus is not an
additional, alternative, or supplemental remedy to the motion
to vacate, set aside, or correct the sentence.
Charles, 180 F.3d at 758.
asserts that he should be allowed to proceed under §
2241 because he already filed a motion to vacate sentence
under § 2255 raising other grounds for relief, which was
denied. The burden of showing that the remedy afforded under
§ 2255 is inadequate or ineffective rests with the
petitioner, and the mere fact that a prior motion to vacate
sentence may have proven unsuccessful does not generally meet
that burden. In Re Gregory, 181 F.3d 713, 714 (6th
Cir. 1999). The remedy afforded under § 2255 is not
considered inadequate or ineffective simply because §
2255 relief may be or has already been denied, because the
petitioner is time-barred or otherwise procedurally barred
from pursuing relief under § 2255, or because the
petitioner has been denied permission to file a second or
successive motion to vacate sentence. Charles, 180
F.3d at 756. Moreover, § 2255 allows a criminal
defendant to seek relief based upon a change in the law and
even to bring a second or successive motion under limited
possibility that Petitioner may not be able to satisfy the
procedural requirements under § 2255 does not mean that
he should be allowed to proceed under § 2241. See
Peterman, 249 F.3d at 461 (“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.”). The remedy afforded
under § 2241 is not an additional, alternative, or
supplemental remedy to that allowed by § 2255.
Charles, 180 F.3d at 758.
also asserts that he should be allowed to proceed under
§ 2241 via the “savings clause” of §
2255 because he is actually innocent of his sentencing
enhancement based upon Mathis. This argument,
however, puts the cart before the horse. Petitioner fails to
show that his remedy under § 2255 is inadequate or
ineffective. Court records indicate that he currently has a
request to proceed on a second or successive motion to vacate
sentence under § 2255 pending before the Sixth Circuit.
Given that Petitioner may be allowed to proceed on such a
second or successive motion, he fails to establish that his