United States District Court, E.D. Michigan, Northern Division
LAWRENCE K. TENNILLE, Petitioner,
J. A. TERRIS, Respondent.
OPINION AND ORDER DISMISSING PETITION FOR WRIT OF
HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
L. LUDINGTON United States District Judge
Lawrence K. Tennille is a federal prisoner currently
imprisoned at the Milan Federal Correctional Institution in
Milan, Michigan. Petitioner was convicted after a jury trial
in the United Stated District Court for the Eastern District
of Kentucky of conspiracy to possesses with intent to
distribute crack cocaine, his third felony drug conviction.
Petitioner was sentenced to life in prison. See United
States v. Tennille, 365 Fed.Appx. 613 (6th Cir. 2010).
instant habeas petition, filed under 28 U.S.C. § 2241,
asserts two grounds for relief: (1) Petitioner is actually
innocent of the mandatory life sentence for conspiring to
deliver over 50 grams of crack cocaine because the
prosecution presented only 41 grams during trial, and (2)
Petitioner is actually innocent of being extraditable and a
fugitive from justice when Petitioner did not possess or
distribute cocaine in Kentucky.
has filed nine petitions for post-conviction relief in the
Eastern District of Kentucky under 28 U.S.C. §§
2241 and 2255. See United States v. Tennille, E.D.
Ky. No. 96-16, ECF Nos. 146, 178, 186, 188, 222, 242, 293,
324, 332. Of particular relevance here is Petitioner's
March 30, 2010, § 2241 petition. See id., ECF
No. 293. In that petition, Petitioner asserted the same
claims he presents in the instant action, to-wit: 1) actual
innocence as to the mandatory minimum life sentence/fifty
plus grams of cocaine, see id, at 6-9, and 2) actual
innocence as to being extraditable and/or a fugitive.
Id. at 5-12. The Court found that Petitioner's
claims could not be raised under the “savings”
clause of § 2241. Id., ECF Nos. 302, 309.
appealed this determination, and the Sixth Circuit affirmed,
reasoning as follows:
Tennille is not entitled to relief under § 2241. As a
general rule, a petitioner challenging the legality of his
sentence must bring his claim under § 2255 in the
sentencing court, while a petitioner challenging the
execution or manner in which the sentence is served may bring
a claim under § 2241 in the court having jurisdiction
over the prisoner's custodian. United States v.
Peterman, 249 F.3d 458, 461 (6th Cir. 2001);
Charles, 180 F.3d at 755-56. However, a federal
prisoner may challenge his conviction and the imposition of a
sentence under § 2241, instead of § 2255, if he is
able to establish that his remedy under § 2255 is
“inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e); see United
States v. Hayman, 342 U.S. 205, 209 (1952);
Charles, 180 F.3d at 755-56.
A prisoner seeking to avail himself of the “savings
clause” exception to filing under § 2255 bears the
burden of presenting a credible claim of actual innocence
that is not cognizable in a successive § 2255 motion.
Martin, 319 F.3d at 804. Prisoners have satisfied
this burden by showing that there has been an intervening
change in the law that establishes their actual innocence.
See Peterman, 249 F.3d at 461-62; Charles,
180 F.3d at 757.
Tennille is clearly challenging the imposition of his
sentence for conspiring to possess with intent to distribute
in excess of fifty grams of cocaine base. However, he has not
met his burden to prove that his § 2255 remedy is
inadequate or ineffective. The remedy under § 2255 is
not rendered inadequate or ineffective simply because the
petitioner has already been denied relief under § 2255,
the petitioner has been denied permission to file a second or
successive motion to vacate, the petitioner is procedurally
barred from pursuing relief under § 2255, or the
petitioner has allowed the one-year statute of limitations to
expire. See Charles, 180 F.3d at 756-58.
Tennille also failed to make a showing of actual innocence.
Relying, in part, on Apprendi v. New Jersey, 530
U.S. 466 (2000), Tennille argued that he is actually innocent
of the sentence imposed because the sentencing judge made a
preponderance finding that the offense involved more than
fifty grams of cocaine, rather than submitting the issue to
the jury. However, an Apprendi challenge to a
sentence cannot be the basis for an actual innocence claim.
Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir.
2003). Tennille also argues that he is actually innocent
because the district court lacked authority to issue an
arrest warrant and have him transferred to Kentucky. However,
this claim does not establish his “actual innocence,
” and clearly does not involve an intervening change in
the law. See Peterman, 249 F.3d at 461-62;
Charles, 180 F.3d at 757. Therefore, Tennille has
not met his burden of showing entitlement to bring his claim
pursuant to § 2241.
Tennille v. United States, No. 11-5689, at *2-3 (6th
Cir. May 16, 2012).
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; Perez v.
Hemingway, 157 F.Supp.2d 790, 796 (E.D. Mich. 2001). 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).
Petitioner raises claims identical to the ones he presented
in a prior § 2241 petition, and the claims were rejected
on the merits by the Sixth Circuit. A habeas petitioner is
prohibited from filing a second or successive habeas petition
raising claims that were already decided against him in a
prior habeas action. See 28 U.S.C. § 2244(a)
and (b)(1); Long v. Kentucky, 80 Fed.Appx. 410, 414
(6th Cir. 2003) (provisions of § 2244 regarding
successive petitions apply to § 2241 petitions);
Queen v. Miner, 530 F.3d 253, 255 (3rd Cir. 2008)
(barring review ...