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Simmons v. Terris

United States District Court, E.D. Michigan, Southern Division

July 17, 2017

ALAN L. SIMMONS, Petitioner,
v.
J.A. TERRIS, Respondent.

          OPINION & ORDER SUMMARILY DENYING PETITION FOR WRIT OF HABEAS CORPUS BROUGHT PURSUANT TO 28 U.S.C. § 2241

          MARK A. GOLDSMITH United States District Judge

         Petitioner 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.

         I. BACKGROUND

         Petitioner 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 180 months.

         Petitioner's 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).

         Petitioner 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).

         Petitioner 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 21, 2016).

         Petitioner 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 conviction.”

Pet. at 5.

         II. ANALYSIS

         A 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.

         No 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. 2011).

         Petitioner 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. ยง 924(c) does not restrict a sentencing court from considering the sentence imposed under ...


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