United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING PETITION FOR A WRIT OF
J. TARNOW SENIOR UNITED STATES DISTRICT JUDGE
prisoner Donald Bennett (“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
was convicted in 1989 in the United States District Court for
the Northern District of Illinois of conspiracy to commit
bank robbery, five counts of bank robbery, and five counts of
using a firearm during the commission of a crime of violence.
18 U.S.C. § 924(c). Several of the bank robberies and
firearm offenses were committed prior to December 1, 1987,
the effective date of the Sentencing Reform Act. See
Bennett v. Terris, 2014 WL 128291, *1 (E.D. Mich.
Jan. 14, 2014).
result of his convictions, Bennett was sentenced to five
concurrent terms of 60 months for the conspiracy and robbery
convictions, a mandatory consecutive sentence of five years
for the one of the firearm convictions, and to four mandatory
consecutive ten year sentences for the other firearm
convictions. Bennett's convictions and sentences were
affirmed by the United States Court of Appeals for the
Seventh Circuit. United States v. Bennett, 908 F.2d
189, 194 (7th Cir. 1990).
brings this action as a habeas petition under 28 U.S.C.
§ 2241. He asserts that he is entitled to relief in
light of the recent Supreme Court decision in Dean v.
United States, 137 S.Ct. 1170, 1174 (Apr. 3, 2017).
Dean interpreted the mandatory consecutive
requirement of section 924(c), and it held that “in
calculating the sentence” for the predicate offense, a
judge need not “ignore the fact that the defendant will
serve the mandatory minimums imposed under section
924(c).” Dean found that a sentencing judge
has discretion to consider the total sentence to be served by
a defendant, including the mandatory minimum sentences for
section 924(c) convictions, when it determines the length of
sentences for convictions that do not have mandatory
minimums. Bennett argues that he is entitled to retroactive
application of Dean in this section 2241 proceeding
because the limitations imposed on filing successive section
2255 proceedings prevent him from filing for relief in the
is not entitled to application of Dean in this
action. “A challenge to the validity of a
federal conviction or sentence is generally brought as a
habeas corpus petition pursuant to section 2255, while a
petition concerning the manner or execution of a sentence is
appropriate under section 2241.” Hill v.
Masters, 836 F.3d 591, 594 (6th Cir. 2016) (citing
United States v. Peterman, 249 F.3d 458, 461 (6th
Cir. 2001)); see also Charles v. Chandler, 180 F.3d
753, 755-56 (6th Cir. 1999)(noting that “courts have
uniformly held that claims asserted by federal prisoners that
seek to challenge their convictions or imposition of their
sentence shall be filed in the sentencing court under 28
U.S.C. § 2255 and that claims seeking to challenge the
execution or manner in which the sentence is served shall be
filed in the court having jurisdiction over the
prisoner's custodian under 28 U.S.C. § 2241")
(internal citations omitted).
is challenging the legality of his sentence as opposed to the
execution or manner in which he is serving his sentence. As
such, the proper remedy for his claim is a motion to vacate,
set aside, or correct the sentence under section 2255. He may
bring his claim under section 2241 only if his claim falls
within the “savings clause” of section 2255,
which permits a prisoner to apply for the writ of habeas
corpus when it “appears that the remedy by motion is
inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e).
petitioner carries the burden to establish that the savings
clause applies to his petition and “[t]he circumstances
in which section 2255 is inadequate and ineffective are
narrow.” Peterman, 249 F.3d at 461. . . .
section 2255 is not “inadequate or ineffective”
merely because habeas relief has previously been denied, a
section 2255 motion is procedurally barred, or the petitioner
has been denied permission to file a successive motion.
Charles, 180 F.3d at 756.
a successive challenge to a conviction, a petitioner may test
the legality of his detention under section 2241 through the
section 2255(e) savings clause by showing that he is
‘actually innocent.'” Id. (emphasis
in original); see also Bannerman v. Snyder, 325 F.3d
722, 724 (6th Cir. 2003)(“The savings clause may only
be applied when the petitioner makes a claim of actual
innocence.”); Peterman, 249 F.3d at 462
(concluding that the defendants' claims did not fall
within any arguable construction of the “savings
clause” because they did not show an intervening change
in the law that established their actual innocence). But
“‘actual innocence' means factual innocence,
not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 614, 623 (1998)). The petitioner must
point to a decision demonstrating that he “stands
convicted of ‘an act that the law does not make
criminal.'” Id. at 620 (quoting Davis
v. United States, 417 U.S. 333, 346 (1974)).
Hill, the Sixth Circuit considered another basis for
testing the legality of detention using the savings clause of
section 2255. The Sixth Circuit held that a federal prisoner
could bring a habeas petition under section 2241 to challenge
his enhanced sentence as a career offender. But the Sixth
Circuit limited its decision to a narrow subset of section
2241 petitions: (1) prisoners who were sentenced under the
mandatory guidelines regime pre-United States v.
Booker, 543 U.S. 220 (2005), (2) who are foreclosed from
filing a successive petition under § 2255, and (3) when
a subsequent, retroactive change in statutory interpretation
by the Supreme Court reveals that a previous conviction is
not a predicate offense for a career-offender enhancement.
Hill, 836 F.3d at 599-600.
Bennett was sentenced before Booker made the
sentencing guidelines advisory rather than mandatory, and he
may be foreclosed from filing a successive motion to vacate
sentence under section 2255. But Bennett cannot satisfy the
third requirement. Bennett is not challenging a
career-offender enhancement to his sentence. Instead, he is
challenging the trial judge's failure to consider his
mandatory consecutive sentence under section 924(c) when
deciding the length of his sentence. “There is nothing
in the Supreme Court's opinion in Dean to
suggest that the holding is to be applied retroactively to
cases on collateral review.” Simmons v.
Terris, No. 17-cv-11771, 2017 U.S. Dist. LEXIS 110028,
2017 WL 3017536, at *2 (E.D. Mich. July 17, 2017)
Bennett's claim does not come within Hill's
limited exception for bringing a section 2241 habeas petition
to challenge a federal sentence, and because he is not
claiming to be actually innocent of the crimes for which he
is incarcerated, his remedy under section 2255 is not