United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING THE PETITION FOR A WRIT
OF HABEAS CORPUS
D. Borman United States District Judge
detainee Jerome Adam Hamilton (“Petitioner”),
currently confined at the Sanilac County Jail in Sandusky,
Michigan, has filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 challenging
the trial court's jurisdiction and the validity of
certain statutory provisions in his ongoing federal criminal
proceedings before another judge in this district.
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 petition
must be dismissed.
Facts and Procedural History
1, 2017, pursuant to a Rule 11 plea agreement, Petitioner
pleaded guilty to RICO conspiracy, 18 U.S.C. § 1962(d),
and using a firearm during and in relation to a crime of
violence causing death, 18 U.S.C. §924(j), and he is
currently scheduled to be sentenced on December 13, 2017.
See Dkt., United States of America v. D-1 Jerome
Hamilton, No. 2:16-CR-20062 (E.D. Mich.) (Hood, C.J.).
In that criminal case, Petitioner has filed a motion to
dismiss for lack of jurisdiction, which is currently pending.
dated the instant habeas petition on November 7, 2017. He
asserts that the district court and the government lack
jurisdiction over the place(s) where the alleged crimes
occurred, that Title 18 is unconstitutional for several
reasons, and that Public Law 80-772 is unconstitutional due
to faulty enactment.
brings this action as a habeas petition under 28 U.S.C.
§ 2241. His habeas claims concern the validity of his
federal RICO conspiracy and firearm convictions for which he
has yet to be sentenced. A pretrial detainee may pursue
habeas relief under 28 U.S.C. § 2241. Girts v.
Yanai, 600 F.3d 576, 587 (6th Cir. 2010); Atkins v.
Michigan, 644 F.2d 543, 546 n. 1 (6th Cir. 1981)).
Courts should abstain from exercising jurisdiction, however,
where the issues raised in the federal habeas petition may be
resolved at trial or by other available procedures. See
Fay v. Noia, 372 U.S. 391, 417-20 (1963); Horning v.
Seifart, 107 F.3d 11, 1997 WL 58620, *1 (6th Cir. Feb.
11, 1997) (citing Jones v. Perkins, 245 U.S. 390,
391 (1918), and Riggins v. United States, 199 U.S.
547 (1905), and ruling that § 2241 petition was properly
dismissed because it was an improper means to raise defenses
to a pending criminal prosecution); see also Pendleton v.
United States, No. 2:08-CV-01200; 2:07-CR-00181, 2009 WL
839498, *1 (S.D. Ohio March 25, 2009) (§ 2241 is not
available where issues have not yet been presented to the
criminal trial court); Abernathy v. United States Marshal
Svs., No. 2:08-CV-4663, 2008 WL 4858442, *1 (E.D. Mich.
Nov. 10, 2008) (citing cases); Hargrove v. Howes,
No. 05-CV-73839-DT, 2005 WL 3021966, *1 (E.D. Mich. Nov. 10,
2005) (“[P]rinciples of judicial economy and efficiency
weigh against allowing federal defendants to file separate
habeas petitions where an appropriate remedy is available
with the trial court.”) (alteration in original)
(quotation marks omitted).
federal detainee's habeas claims would be dispositive of
pending federal criminal charges, those claims must be
exhausted at trial and on direct appeal before habeas relief
is available. See Sandles v. Hemingway, 22 F.
App'x 557 (6th Cir. 2001) (citing Moore v. United
States, 875 F.Supp. 620, 624 (D. Neb. 1994); Flowers
v. Edwards, 780 F.2d 1020, 1984 WL 13977, *1 (6th Cir.
Nov. 18, 1985) (unpublished)); Abernathy, 2008 WL
4858442 at *1 (citing cases). In this case, Petitioner's
§ 2241 habeas petition is subject to dismissal as
premature because he has yet to be sentenced. See Briggs
v. Levi, 275 F. App'x 111, 112 (3d Cir. 2008);
White v. Terris, No. 2:15-CV-12349, 2015 WL 4617912,
*2 (E.D. Mich. July 31, 2015) (summarily dismissing §
2241 petition where petitioner had yet to be sentenced and
had filed a notice of appeal).
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 convictions and/or
sentences 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 convictions 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.
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. The
possibility that a petitioner may not be able to satisfy the
procedural requirements of § 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 prescribed under § 2255.
Charles, 180 F.3d at 758.
neither alleges nor establishes that his remedy under §
2255 is inadequate or ineffective. He is currently awaiting
sentencing and he has a motion to dismiss for lack of
jurisdiction pending before the trial court. Petitioner thus
has an opportunity to present his claims to the trial court
before sentencing and will then have an opportunity to seek
an appeal with the Sixth Circuit and/or file a motion to
vacate under § 2255 with the trial court. He must pursue
such remedies before attempting to proceed on habeas review
under § 2241. See Capaldi, 135 F.3d at 1124;
see also Copeland v. Hemingway, 36 F. App'x 793,
794-95 (6th Cir. 2002). Petitioner is not entitled to habeas
relief under 28 U.S.C. § 2241 and his petition must be