United States District Court, E.D. Michigan, Southern Division
LLOYL A. TENNISON, Petitioner,
J.A. TERRIS, Respondent.
OPINION & ORDER (1) DENYING THE PETITION FOR WRIT
OF HABEAS CORPUS (DKT. 1) AND (2) GRANTING LEAVE TO APPEAL IN
A. GOLDSMITH UNITED STATES DISTRICT JUDGE
Lloyl A. Tennison, confined at the Federal Correctional
Institution in Milan, Michigan, filed a pro se
petition for the writ of habeas corpus under 28 U.S.C. §
2241 (Dkt.1). The petition challenges Petitioner's
enhanced federal sentence for conspiracy to manufacture and
to distribute methamphetamine. Because Petitioner's
claims cannot be asserted in a petition under § 2241,
and because the claims lack substantive merit, the Court
denies the petition.
2009, Petitioner pleaded guilty in an Illinois state court to
possession of material used to manufacture methamphetamine.
See 720 Ill. Comp. Stat. § 646/30. In 2012,
Petitioner pleaded guilty in the Federal District Court for
the Central District of Illinois to conspiracy to manufacture
and distribute methamphetamine. See 21 U.S.C.
§§ 841(a)(1) and 846. The Government apparently
filed a notice under 21 U.S.C. § 851, indicating that
Petitioner was subject to an enhanced sentence in light of
his state conviction. The Federal District Court then
sentenced Petitioner to a mandatory minimum sentence of
twenty years in prison due to Petitioner's prior state
appealed his conviction and sentence, arguing that his state
conviction was not prior to his federal conspiracy and,
therefore, it should not have been used to increase his
federal sentence from ten to twenty years. The United States
Court of Appeals for the Seventh Circuit rejected
Petitioner's argument and affirmed his conviction and
sentence. See United States v. Sidell, 553 Fed.Appx.
619 (7th Cir. 2014). On October 6, 2014, the United States
Supreme Court denied Petitioner's application for a writ
of certiorari. See Tennison v. United States, 135
S.Ct. 104 (2014).
filed a motion to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255, arguing that: (1) he was
actually innocent of his conviction, and his trial attorney
was ineffective for failing to object to the amount of
methamphetamine reported in Petitioner's pre-sentence
report; (2) his sentence violated Alleyne v. United
States, 133 S.Ct. 2151 (2013), and appellate counsel was
ineffective for failing to raise this issue on appeal; and
(3) he was actually innocent of the conspiracy charge, and
trial counsel provided ineffective assistance at the
plea-bargaining stage. The Federal District Court in Illinois
found no merit in Petitioner's arguments and denied his
motion. See Tennison v. United States, No. 15-1113,
2015 WL 1540990 (C.D. Ill. Apr. 1, 2015).
on May 5, 2017, Petitioner filed his habeas corpus petition.
Relying on Mathis v. United States, 136 S.Ct. 2243
(2016), he alleges that his state conviction was not a
“felony drug offense” under 21 U.S.C. §
841(b)(1)(A) and, therefore, it should not have been used as
a predicate offense to enhance his federal sentence. Stated
differently, Petitioner argues that his prior conviction
should not have been used to trigger the 20-year minimum
sentence in his federal case because the definition of his
state crime is broader than the generic crime described in 21
U.S.C. § 802(44). More specifically, Petitioner contends
that the state statute does not require actual involvement
with drugs or a controlled substance, but § 802(44)
requires the predicate offense to involve actual drugs or
controlled substances. Pet. at 3, 6-8 (Dkt. 1).
also alleges that the phrase “conduct relating to
narcotic drugs . . . or stimulant substances” in §
802(44) is void for vagueness and violates the Due Process
Clause of the Fifth Amendment. According to Petitioner, the
phrase failed to give him fair notice that a violation of 720
Ill. Comp. Stat. § 646/30 would expose him to an
enhanced federal sentence. Pet. at 9-10 (Dkt. 1).
Government argues in an answer to the petition (Dkt. 6) that
Petitioner may not raise his claims under 28 U.S.C. §
2241, that Mathis is irrelevant to Petitioner's
claims, and that Petitioner's claims fail on the merits.
See Response to Pet. at 3-7 (Dkt. 6). Petitioner
replies that the Government's response is frivolous and
meritless. See Reply Brief at 1 (Dkt. 7).
Section 2241 vs. Section 2255
filed his petition under 28 U.S.C. § 2241, which states
in relevant part that “[t]he writ of habeas corpus
shall not extend to a prisoner unless . . . [h]e is in
custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2241(c)(3). A
preliminary issue is whether Petitioner may bring his claims
under 28 U.S.C. § 2241, as opposed to 28 U.S.C. §
2255. “A challenge to the validity of a federal
conviction or sentence is generally brought as a habeas
corpus petition pursuant to § 2255, while a petition
concerning the manner or execution of a sentence is
appropriate under § 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)); accord Terrell v. United States, 564
F.3d 442, 447 (6th Cir. 2009) (stating that “[s]ection
2255 provides the primary avenue of relief for federal
prisoners ‘claiming the right to release' as a
result of an unlawful sentence”) (quoting 28 U.S.C.
§ 2255(a)); Charles v. Chandler, 180 F.3d 753,
755-56 (6th Cir. 1999) (noting 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 and end citations omitted).
grounds for relief challenge his federal sentence, as opposed
to the execution or manner in which he is serving his
sentence. As such, the proper remedy for his claims is a
motion to vacate, set aside, or correct his sentence under
§ 2255. Petitioner may bring his claims under §
2241 only if the claims fall within the “savings
clause” of § 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). Section “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, 836 F.3d at 594
(citing Charles, 180 F.3d at 756).
petitioner may challenge a conviction under § 2241,
using the savings clause of § 2255(e), by showing that
he is actually innocent of his crime of conviction.
Hill, 836 F.3d at 594 (citing Wooten v.
Cauley, 677 F.3d 303, 307 (6th Cir. 2012)); see also
Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir. 2003)
(stating that “[t]he savings clause may only be applied
when the petitioner makes a claim of actual
innocence”). But Petitioner is not claiming to be
innocent of his crime of conviction; instead, he is