United States District Court, E.D. Michigan, Southern Division
JAMES O. WELLS, Petitioner,
J.A. TERRIS, Respondent.
OPINION AND ORDER DENYING PETITIONER'S MOTION TO
ALTER OR AMEND THE JUDGMENT (DOCKET NO. 5)
Page Hood Chief Judge, United States District Court.
2017, petitioner James O. Wells filed a pro se
petition for the writ of habeas corpus under 28 U.S.C. §
2241. The pleading challenged Petitioner's federal
sentence, which was imposed in 1998 by a United States
district judge in the Northern District of Indiana. The
district judge sentenced Petitioner to imprisonment for
concurrent terms of 60 months for conspiracy, see 18
U.S.C. § 371, and 233 months for bank robbery,
see 18 U.S.C. § 2113. The district judge also
sentenced Petitioner to a mandatory consecutive prison term
of 60 months for using or carrying a firearm during and in
relation to a crime of violence, see 18 U.S.C.
§ 924(c), for a total sentence of 293 months in prison.
sole ground for habeas relief was that, “[w]hen
sentencing a defendant under 18 USC § 924(c) to
consecutive mandatory minimums[, a] court can consider
reducing [the] sentence for [the] underlying offense to as
little as one day.” Pet. at 5. The basis for this
argument was the Supreme Court's decision in United
States v. Dean, 137 S.Ct. 1170 (2017), which held that,
“[n]othing in § 924(c) restricts the authority
conferred on sentencing courts . . . to consider a sentence
imposed under § 924(c) when calculating a just sentence
for the predicate count.” Id. at 1176-77.
Petitioner sought to have the Court release him from federal
custody or to transfer his case to the Northern District of
Indiana for a hearing and a reduced sentence pursuant to
Dean. On August 31, 2017, the Court summarily
dismissed the petition because Petitioner had not shown that
a motion to vacate, set aside, or correct his sentence under
28 U.S.C. § 2255 was an inadequate or ineffective means
for challenging his sentence.
before the Court is Petitioner's motion to alter or amend
the Court's judgment. According to Petitioner, a §
2255 motion is an inadequate and ineffective remedy for his
claim because Dean constitutes a statutory
interpretation of 18 U.S.C. § 924(c), and a second or
successive motion under § 2255 may be used only for
constitutional challenges to a sentence. Petitioner seeks to
have the Court re-consider its order of dismissal and allow
him to proceed with his case. In the alternative, he seeks to
have the Court vacate his sentence and forward his case to
the sentencing court in the Seventh Circuit for re-sentencing
brings his motion under Federal Rule of Civil Procedure
59(e), which permits individuals to ask a court to alter or
amend its judgment. “The purpose of Rule 59(e) is
‘to allow the district court to correct its own errors,
sparing the parties and appellate courts the burden of
unnecessary appellate proceedings.' ” Howard v.
United States, 533 F.3d 472, 475 (6th Cir. 2008)
(quoting York v. Tate, 858 F.2d 322, 326 (6th Cir.
1988) (quoting Charles v. Daley, 799 F.2d 343, 348
(7th Cir. 1986)). “A district court may grant a Rule
59(e) motion to alter or amend judgment only if there is:
‘(1) a clear error of law; (2) newly discovered
evidence; (3) an intervening change in controlling law; or
(4) a need to prevent manifest injustice.' ”
Henderson v. Walled Lake Consol. Sch., 469 F.3d 479,
496 (6th Cir. 2006) (quoting Intera Corp. v.
Henderson, 428 F.3d 605, 620 (6th Cir. 2005)). This
standard is consistent with the “palpable defect”
standard found in this District's Local Rules,
id., and under Local Rule 7.1, the Court generally
will not grant motions for rehearing or reconsideration that
merely present the same issues ruled upon by the Court,
either expressly or by reasonable implication. The movant
must not only demonstrate a palpable defect by which the
Court and the parties and other persons entitled to be heard
on the motion have been misled but also show that correcting
the defect will result in a different disposition of the
LR 7.1(h)(3) (E.D. Mich. July 1, 2013).
alleges that he has already filed one motion to vacate
sentence under § 2255, and that Dean presents
an issue of statutory interpretation, which he cannot raise
in a second or successive § 2255 motion. He contends
that the Court erred when it determined that he had failed to
show the inadequacy or ineffectiveness of a motion under
§ 2255 for challenging his sentence.
true that “successive § 2255 motions require the
presentation of new factual evidence or the demonstration of
a new rule of constitutional law.” Wooten v.
Cauley, 677 F.3d 303, 307 (6th Cir. 2012). But
“§ 2255 is not ‘inadequate or
ineffective' merely because habeas relief has previously
been denied, a § 2255 motion is procedurally barred, or
the petitioner has been denied permission to file a
successive motion.” Hill v. Masters, 836 F.3d
591, 594 (6th Cir. 2016) (citing Charles v.
Chandler, 180 F.3d 753, 756 (6th Cir. 1999) (per
curiam)); see also Prost v. Anderson, 636 F.3d
578, 580 (10th Cir. 2011) (“The fact that § 2255
bars [the federal prisoner] from bringing his statutory
interpretation argument now, in a second
§ 2255 motion almost a decade after his conviction,
doesn't mean the § 2255 remedial process was
ineffective or inadequate to test his argument.”)
(emphasis in original).
argument fails for an additional reason: when seeking habeas
relief under § 2241 based on a misapplied sentence, the
petitioner must show a retroactive case of statutory
interpretation. Hill, 836 F.3d at 595.
“[T]here 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 WL 3017536,
at *2 (E.D. Mich. July 17, 2017) (unpublished). The Sixth
Circuit, moreover, has not addressed the issue, and two
judges in this district have concluded that Dean is
not retroactive on collateral review of a federal sentence.
See United States v. Harper, No. 11-20188, 2018 WL
783100, at *3 (E.D. Mich. Feb. 8, 2018) (Steeh, D.J.);
Whitsell v. United States, No. 17-cv-12691, 2018 WL
317869, at *3 (E.D. Mich. Jan. 8, 2018) (Drain, D.J.).
outside this circuit have also concluded that Dean
does not apply retroactively on collateral review. See
United States v. Cooley, No. 1:09-cr-331, 2017 WL
4003355, at *2 (W.D. Mich. Sept. 12, 2017) (unpublished
decision collecting cases). Even if Dean applies
retroactively to cases on collateral review, “[t]he
Supreme Court did not hold that district courts are
required to factor in § 924(c) mandatory
minimums when calculating an appropriate sentence for the
predicate offenses.” United States v. Johnson,
702 Fed.Appx. 349, 363 (6th Cir. 2017) (emphasis in
original), petition for cert. filed, No. 17-6567
(U.S. Oct. 27, 2017).
Court concludes that it did not make a clear error of law or
a palpable defect when it summarily dismissed the habeas
petition. Accordingly, the Court denies Petitioner's