United States District Court, E.D. Michigan, Southern Division
GREGORY D. SALLIS, #71881-198, Petitioner,
J. A. TERRIS, Respondent.
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
Gershwin A. Drain United States District Court Judge
Introduction and History
prisoner Gregory D. Sallis (''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
the validity of his federal sentence. In 1999, Petitioner was
convicted of conspiracy to distribute and possess with intent
to distribute cocaine base, possession with intent to
distribute cocaine base, and interstate travel in aid of a
racketeering enterprise in violation of 18 U.S.C. Â§'
841(a)(1), 846, and 1952(a)(3) following a jury trial in the
United States District Court for the Eastern District of
Wisconsin and was sentenced to concurrent terms of 360 months
imprisonment, 360 months imprisonment and 60 months
imprisonment (a total term of 30 years) with five years of
his sentencing, Petitioner filed an appeal with the United
States Court of Appeals for the Seventh Circuit, which
affirmed his convictions. United States v. Hardin,
209 F.3d 653 (7th Cir. 2000). The United States Supreme Court
then vacated Petitioner's sentence in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000), and
remanded the case for further consideration. Sallis v.
United States, 531 U.S. 1135 (2001). On remand, the
Seventh Circuit affirmed Petitioner's sentence.
United States v. Robinson, 39 Fed.Appx. 386 (7th
Cir. 2002). In 2003, Petitioner filed a motion to vacate his
sentence pursuant to 28 U.S.C. § 2255 with the
sentencing court, which was denied. The Seventh Circuit
denied a certificate of appealability. Sallis v. United
States, No. 06-2785 (7th Cir. Jan. 26, 2007). In 2016,
Petitioner sought permission from the Seventh Circuit to file
a successive motion to vacate his sentence pursuant to'
2255 relying upon Johnson v. United States, U.S.,
135 S.Ct. 2551 (2015) (ruling that the residual clause of the
Armed Career Criminal Act was unconstitutionally vague), but
the Seventh Circuit rejected that request finding that his
sentence was based upon his drug quantity and criminal
history, not the career offender guideline. Sallis v.
United States, No. 16-2272 (7th Cir. June 15, 2016).
thereafter filed his federal habeas petition. In his
pleadings, he asserts that he should be allowed to proceed
under' 2241 pursuant to Hill v. Masters, 836
F.3d 591 (6th Cir. 2016), because he is actually innocent of
being a career offender under the sentencing guidelines.
Specifically, he claims that his prior California convictions
for shooting into an occupied dwelling and for a controlled
substance offense no longer qualify as predicate offenses to
support his career offender designation following the United
States Supreme Court's decisions in Descamps v.
United States, 570 U.S. 254 (2013), and Mathis v.
United States, U.S., 136 S.Ct. 2243 (2016). Petitioner
has filed a supplement to his petition citing Higdon v.
United States, 882 F.3d 605 (6th Cir. 2018) (ruling that
a North Carolina conviction for discharging a firearm into an
occupied structure is not a violent felony under the Armed
Career Criminal Act), to support his argument that his prior
California conviction for shooting into an occupied dwelling
is not a crime of violence. Respondent has filed answers to
the original and supplemental pleadings contending that
Petitioner is not entitled to relief under' 2241 and
Hill because he was sentenced based upon his drug
quantity and his criminal history, not his designation as a
career offender under the sentencing guidelines. Petitioner
has filed replies to those answers.
federal prisoner seeking to challenge his or her conviction
or sentence must normally file a motion to vacate sentence
pursuant to 28 U.S.C. § 2255 with the sentencing court.
See Charles v. Chandler, 180 F.3d 753, 755-56 (6th
Cir. 1999). A federal prisoner may challenge his or her
conviction or sentence pursuant to 28 U.S.C. § 2241 in
the district court where he or she is confined only if he or
she establishes that the post-conviction remedy afforded
under 28 U.S.C. § 2255 is inadequate or ineffective to
test the legality of detention. See 28 U.S.C. §
2255(e); Wooten v. Cauley, 677 F.3d 303, 307 (6th
Cir. 2012); Charles, 180 F.3d at 756. The petitioner
has the burden of establishing that his or her remedy
under' 2255 is inadequate or ineffective. Martin v.
Perez, 319 F.3d 799, 803 (6th Cir. 2003).
many years, the United States Court of Appeals for the Sixth
Circuit held that a federal prisoner could not raise a
sentencing challenge under 28 U.S.C. § 2241 via the
''savings clause'' of' 2255. See,
e.g., Jones v. Castillo, 489 Fed.Appx. 864, 866 (6th
Cir. 2012); United States v. Peterman, 249 F.3d 458,
462 (6th Cir. 2001). The Sixth Circuit, however, recently
modified this rule. In Hill v. Masters, 836 F.3d 591
(6th Cir. 2016), the Sixth Circuit held that a federal
prisoner may obtain habeas relief under' 2241 based on
''a misapplied sentence, '' if he or she
establishes A(1) a case of statutory interpretation, (2) that
is retroactive and could not have been invoked in the
initial' 2255 motion, and (3) that the misapplied
sentence presents an error sufficiently grave to be deemed a
miscarriage of justice or a fundamental defect.''
Id. at 595. The Sixth Circuit went on to state that
its decision addressed ''only a narrow subset of'
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. In
this case, Petitioner cannot establish that he is entitled to
relief under Hill based upon the Supreme Court's
rulings in Descamps or Mathis because the
record reveals that he was sentenced based upon his drug
quantity and his criminal history, not the fact that he also
qualified as a career offender under the sentencing
guidelines. The Presentence Investigation Report
(APSIR'') shows that Petitioner's offense level
was scored at 40 based upon the quantity of drugs involved in
the offense (38) and the use of a firearm (2). This score
(40) was higher than his score under the guidelines (37) so
it was applicable rather than the guidelines. Additionally,
Petitioner's criminal history was scored at 15 based upon
his prior adult convictions (13) and the fact that he was on
probation at the time of the offense (2). Based upon his 15
criminal history points, his criminal history category was a
Category VI, without regard to any designation as a career
offender under the guidelines. See PSIR, Pet. Exh.
1; see also Sallis v. United States, No. 16-2272
(7th Cir. June 15, 2016) (''Sallis was not sentenced
under the residual clause or the career-offender guideline,
so Johnson has no effect on his sentence. Instead
his offense level depended on the quantity of drugs he was
responsible for, and his criminal history score was VI no
Petitioner's sentence was based upon his quantity of
drugs and his criminal history, rather than the career
offender enhancement provision of the guidelines, the
question of whether his prior California convictions counts
as predicate offenses under the guidelines so as to support
his career offender designation is irrelevant. His sentencing
guideline range remains the same (even without the career
offender enhancement). See, e.g., Sanders v. United
States, Nos. CV415-324, CR410-162, 2016 WL 1728929 (S.D.
Ga. Jan. 5, 2016) (report and recommendation finding that
request for relief was moot based upon fact that
petitioner's offense level computation was higher than
his career offender computation and his criminal history fell
within Category VI even before applying the career offender
enhancement and recommending that' 2255 motion be
denied), adopted as the Court's opinion, Sanders v.
United States, Nos. CV415-324, CR410-162, 2016 WL
1756914 (April 29, 2016). Petitioner fails to establish that
he is subject to a misapplied sentence that presents an error
sufficiently grave to be deemed a miscarriage of justice or a
fundamental defect. He is thus not entitled to habeas relief
reasons stated, the Court concludes that Petitioner is not
entitled to federal habeas relief on his sentencing claim.
Accordingly, the Court DENIES and
DISMISSES with prejudice the petition for a
writ of habeas corpus.
the Court notes that a certificate of appealability is not
needed to appeal the dismissal of a habeas petition filed
pursuant to 28 U.S.C. § 2241. Witham v. United
States, 355 F.3d 501, 504 (6th Cir. 2004). Consequently,
Petitioner need not request one from this Court or the Sixth
Circuit should he seek to appeal this decision.