United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING WITHOUT PREJUDICE THE
PETITION FOR A WRIT OF HABEAS CORPUS
Arthur J. Tarnow Judge
prisoner George Burdine ("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.
Standard of Review
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
February 21, 2013, Petitioner pleaded no contest to felon in
possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e) in the United States
District Court for the Southern District of Indiana. On May
13, 2013, he was sentenced, as an armed career criminal, to
180 months imprisonment. United States v. Burdine,
No. 1:12-cr-00055-001 (S.D. Ind.) (Pratt, J.). Petitioner did
not file a direct appeal from his conviction or sentence.
filed a motion to reduce his sentence under 18 U.S.C. §
3582(c)(2) due to a reduction in the sentencing guidelines on
April 23, 2015. The district court denied the motion by order
dated July 30, 2015. Petitioner did not appeal.
dated the instant habeas petition on June 20, 2017. In his
current pleading, Petitioner asserts that he is entitled to
habeas relief because three of his Indiana burglary
convictions should not have been used to enhance his sentence
past the statutory maximum under the Armed Career Criminal
Act in light of Mathis v. United States, U.S., 136
S.Ct. 2243, 195 L.Ed.2d 604 (June 23, 2016).
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 of a firearm 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 Wooten 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.
has yet to file a motion to vacate his sentence under §
2255. The burden of showing that the remedy afforded under
§ 2255 is inadequate or ineffective rests with the
petitioner. 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 denied, or because the petitioner is
time-barred or otherwise procedurally barred from pursuing
relief under § 2255. 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 circumstances.
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. Petitioner has failed to
show that his remedy under § 2255 is inadequate or
ineffective. He has not even yet attempted to seek relief in
the trial court under § 2255. He is thus not entitled to
proceed under 28 U.S.C. § 2241, and this matter must
therefore be dismissed.
the Court DISMISSES WITHOUT PREJUDICE the Petition for a ...