United States District Court, E.D. Michigan, Southern Division
ALAN L. SIMMONS, Petitioner,
J.A. TERRIS, Respondent.
OPINION & ORDER SUMMARILY DENYING PETITION FOR
WRIT OF HABEAS CORPUS BROUGHT PURSUANT TO 28 U.S.C. §
A. GOLDSMITH United States District Judge
Alan L. Simmons, currently incarcerated at the Federal
Correctional Institution in Milan, Michigan, filed a pro se
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 (Dkt. 1), challenging his sentence for
conspiracy, 18 U.S.C. § 371; armed bank robbery, 18
U.S.C. §§ 2113(a), (d); and use of a firearm during
a crime of violence, 18 U.S.C. § 924(c). For the reasons
stated below, the Court summarily denies the petition.
was convicted following a jury trial in the United States
District Court for the Eastern District of Wisconsin.
Petitioner was sentenced to 60 months on the conspiracy count
and 96 months on the armed robbery charge, to be served
concurrently to one another. Petitioner was sentenced to 84
months on the use of a firearm count, which was to be served
consecutively to the other sentences, so that
Petitioner's total sentence in the aggregate amounted to
conviction and sentence were affirmed on appeal. United
States v. Simmons, 581 F.3d 582, 586 (7th Cir. 2009),
cert. denied, 559 U.S. 1080 (2010).
filed a motion to vacate sentence pursuant to 28 U.S.C. 2255,
which was denied. Simmons v. United States, No.
07-CR-30, 2011 WL 1527062 (E.D. Wis. Apr. 20, 2011).
has been denied permission twice by the Seventh Circuit to
file a second motion to vacate sentence. Simmons v.
United States, No. 13-1763 (7th Cir. Apr. 25, 2013);
Simmons v. United States, No. 16-2630 (7th Cir. July
seeks a writ of habeas corpus on the following ground:
i. “When sentencing petitioner under [the] consecutive
mandatory sentencing statute, 18 U.S.C. § 924(c), the
sentencing court was unaware it could exercise its discretion
and impose [a] lesser sentence on [the] Bank Robbery
Pet. at 5.
petition for a writ of habeas corpus must set forth facts
that give rise to a cause of action under federal law or it
may summarily be dismissed. See Perez v. Hemingway,
157 F.Supp.2d 790, 796 (E.D. Mich. 2001). Federal courts are
also authorized to dismiss any habeas petition that appears
legally insufficient on its face. McFarland v.
Scott, 512 U.S. 849, 856 (1994). A federal district
court is authorized to summarily dismiss a habeas corpus
petition if it plainly appears from the face of the petition
or the exhibits that are attached to it that the petitioner
is not entitled to federal habeas relief. See Carson v.
Burke, 178 F.3d 434, 436 (6th Cir. 1999); Rules
Governing § 2254 Cases, Rule 4, 28 U.S.C. foll. §
2254. The Sixth Circuit has indicated that it
“disapprove[s] the practice of issuing a show cause
order [to the respondent] until after the District Court
first has made a careful examination of the petition.”
Allen v. Perini, 424 F.3d 134, 140 (6th Cir. 1970).
A district court, therefore, has the duty to screen out any
habeas corpus petition that lacks merit on its face.
Id. at 141.
return to a habeas petition is necessary when the petition is
frivolous, or obviously lacks merit, or where the necessary
facts can be determined from the petition itself without
consideration of a return by the state. Id. District
courts have used Rule 4 of the habeas corpus rules to
summarily dismiss facially insufficient habeas petitions
brought under § 2241. See, e.g.,
Perez, 157 F.Supp.2d at 796. The petition in this
case is subject to summary dismissal because it is facially
insufficient to grant habeas relief. See Alexander v. N.
Bureau of Prisons, 419 F. App'x. 544, 545 (6th Cir.
claims that he is entitled to re-sentencing because the judge
at the time of sentencing did not recognize that she could
exercise her discretion and consider the consecutive
mandatory minimum 84-month sentence imposed on the use of a
firearm during a crime of violence conviction when she
fashioned his sentence on the bank robbery conviction (and
presumably on the conspiracy conviction as well). In support
of his claim, Petitioner relies on the recent case of
Dean v. United States,137 S.Ct. 1170, 1176-1177
(2017), in which the Supreme Court held that 18 U.S.C. §
924(c) does not restrict a sentencing court from considering
the sentence imposed under ...