United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING PETITIONER'S MOTION FOR
RECONSIDERATION, REOPENING THE CASE, AND DISMISSING THE
J. TARNOW, UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner's motion for
reconsideration concerning the Court's dismissal of his
habeas petition challenging his federal sentencing
enhancement which was brought pursuant to 28 U.S.C. §
2241. The Court dismissed the petition because Petitioner
failed to show that his remedy under 28 U.S.C. § 2255
was inadequate or ineffective and because he stated that he
had a (second) § 2255 motion with a motion for relief
from judgment under Federal Rule of Civil Procedure 60(b)
pending in the United States District Court for the Eastern
District of Missouri. Petitioner now seeks reconsideration
stating that he does not have any pending motions in that
court. Upon further review, the Court finds that the Eastern
District of Missouri has resolved Petitioner's motion.
See Wilson v. United States of America, No.
4:13-CV-02164-AGF (E.D. Mo. Aug. 17, 2017). Accordingly, the
Court GRANTS Petitioner's motion for
reconsideration and REOPENS this case for
further review. Upon such further review, and for the reasons
that follow, the Court finds that Petitioner's case is
still subject to dismissal.
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, 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). The court ruled that the motion was a
successive motion to vacate sentence under § 2255 and
dismissed the motion for lack of jurisdiction because
Petitioner had not obtained appellate authorization to filed
a second motion. Wilson v. United States of America,
No. 4:13-CV-02164-AGF, *1-2 (E.D. Mo. Aug. 17, 2017).
thereafter filed his § 2241 federal habeas petition with
this Court. He claims that he is entitled to habeas relief
because he is actually innocent of the five-point sentencing
enhancement for aggravated assault based upon
Fields. He also asserts that his remedy under §
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 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 § 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.
Charles, 180 F.3d at 758.
also asserts that he should be allowed to proceed under
§ 2241 via the “savings clause” of §
2255 because he is actually innocent of his sentencing
enhancement based upon Fields. Petitioner, however,
makes no such showing. In fact, the federal sentencing court
has explicitly found that his sentence was not enhanced based
upon his prior conviction. The court has explained:
The prior conviction was not, in fact, used to enhance his
sentence under any statute or the Sentencing Guidelines. His
criminal history score was zero, establishing a criminal
history category of I. The use of U.S.S.G. § 2A2.2 for
the base offense ...