United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING WITHOUT PREJUDICE THE
PETITION FOR A WRIT OF HABEAS CORPUS
J. Tarnow Senior United States District Judge.
prisoner Vernon Wilson (“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 a declaration that
the enhancement was improper 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 habeas petition must be dismissed.
Facts and Procedural History
was convicted of four counts of deprivation of rights, 18
U.S.C. § 242, and two counts of making false statements,
18 U.S.C. § 1001, following a jury trial in the United
States District Court for the Eastern District of Missouri.
He was sentenced to concurrent terms of 120 months
imprisonment on each of the § 242 counts and to
concurrent terms of 60 months imprisonment on each of the
§ 1001 counts. In imposing sentence, the court applied a
two-level enhancement for physical restraint under U.S.S.G.
§ 3A1.3 and a five-level enhancement for aggravated
assault resulting in serious bodily injury under U.S.S.G.
§ 2A2.2. See United States v. Wilson, 686 F.3d
868, 869-71 (8th Cir. 2012). Petitioner filed an appeal
challenging his sentencing enhancements in the United States
Court of Appeals for the Eighth Circuit, which affirmed his
sentences. Id. at 871-74. The United States Supreme
Court denied certiorari. Wilson v. United States,
568 U.S. 1103 (2013).
then filed a motion to vacate sentence pursuant to 28 U.S.C.
§ 2255 with the Eastern District of Missouri raising
eight ineffective assistance of counsel claims, which was
denied. United States v. Wilson, No.
4:13-CV-02164-AGF, 2015 WL 3416931 (E.D. Mo. May 26, 2015).
The Eighth Circuit denied a certificate of appealability.
Wilson v. United States, No. 15-2952 (8th Cir. Feb.
1, 2016). The Supreme Court denied certiorari. Wilson v.
United States, U.S., 137 S.Ct. 232 (2016).
August 10, 2017, Petitioner filed a motion to vacate sentence
under 28 U.S.C. § 2255 and for relief from judgment
under Federal Rule of Civil Procedure 60(b) with the Eastern
District of Missouri challenging his sentencing enhancement
based upon the Eighth Circuit's decision in United
States v. Fields, 863 F.3d 1012 (8th Cir. July 20, 2017)
(ruling that prior Missouri conviction for second-degree
assault was not a “crime of violence” under the
federal sentencing guideline providing for an increased base
offense level). He states that the motion is currently
pending. See Pet., p. 6.
dated the instant habeas petition on August 23, 2017 and it
was filed by this Court on August 25, 2017. Petitioner
asserts that he is entitled to habeas relief because he is
actually innocent of a five-point sentencing enhancement for
aggravated assault based upon Fields. Petitioner
asserts that his remedy under 28 U.S.C. § 2255 is
inadequate or ineffective because Fields does not
fall within an enumerated exception to the one-year period
for filing such a motion and asserts 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 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 due to timeliness concerns with filing a motion to
vacate sentence under § 2255. 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 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.