United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER SUMMARILY DENYING THE PETITION FOR
WRIT OF HABEAS CORPUS BROUGHT PURSUANT TO 28 U.S.C. §
2241 AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
GERSHWIN A. DRAIN, UNITED STATES DISTRICT COURT JUDGE
Kemp Tennille, II, (petitioner), incarcerated at the Federal
Correctional Institution in Milan, Michigan, filed a pro
se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241, in which he challenges his sentence out
of the U.S. District Court for the Eastern District of
Kentucky for conspiracy to possess with intent to distribute
in excess of fifty grams of cocaine base and his sentence as
a career offender.
reasons stated below, the petition for writ of habeas corpus
filed pursuant to 28 U.S.C. § 2241 is SUMMARILY DENIED.
was convicted following a jury trial in the Eastern District
of Kentucky and was sentenced as a career offender to life in
prison. Petitioner’s conviction and sentence was
affirmed on direct appeal. United States v.
Tennille, No. 97-6245, 2000 WL 191725, 205 F.3d 1343
(6th Cir. Feb. 3, 2000)(Table).
has filed several post-conviction motions to vacate sentence
pursuant to 28 U.S.C. § 2255, which have all been denied
either on the merits or for being an impermissibly filed
successive motion to vacate sentence. See United States
v. Tennille, No. 5:13-CV-7260-JMH-HAI, 2013 WL 12344191,
at *2 (E.D. Ky. Oct. 21, 2013), report and recommendation
adopted, No. 5:13-CV-7260-JMH, 2013 WL 12344190 (E.D.
Ky. Nov. 19, 2013).
2008, petitioner filed a motion for a sentence reduction
under 18 U.S.C. § 3582(c)(2), which was denied. The
United States Court of Appeals for the Sixth Circuit affirmed
the denial of the motion to reduce sentence. United
States v. Tennille, 365 F. App’x. 613 (6th Cir.
then attempted to challenge his sentence by filing a petition
for writ of habeas corpus with the sentencing court pursuant
to 28 U.S.C. § 2241, which was denied. See United
States v. Tennille, No. 5:10-CV-7113-JMH, 2011 WL
13277567 (E.D. Ky. Feb. 4, 2011), report and
recommendation adopted, No. 96-CR16-JMH, 2011 WL
13277618 (E.D. Ky. May 20, 2011).
2016, President Barack Obama commuted petitioner’s life
sentence to thirty years in prison.
then filed another motion for sentence reduction, which was
denied. United States v. Tennille, No. 96-CR16-JMH
(E.D. Ky. Feb. 13, 2017)(Petitioner’s Attachment 4).
2019, petitioner filed a motion with the sentencing court, in
which he sought a further reduction of his sentence under the
First Step Act of 2018. The sentencing judge denied
petitioner’s motion to reduce his sentence, finding
that petitioner was not entitled to reduction of his sentence
under either the First Step Act or the Fair Sentencing Act of
2010 because he had been sentenced to life imprisonment as a
career offender and not under the sentencing guidelines.
United States v. Tennille, No. 5:96-CR-016-JMH, 2019
WL 2163601 (E.D. Ky. May 17, 2019).
filed his current habeas petition, in which he seeks a
reduction of his sentence pursuant to the First Step Act of
petition for a writ of habeas corpus must set forth facts
that give rise to a cause of action under federal law or it
may summarily be dismissed. See Perez v. Hemingway,157 F.Supp.2d 790, 796 (E.D. Mich. 2001). Federal courts are
also authorized to dismiss any habeas petition that appears
legally insufficient on its face. McFarland v.
Scott,512 U.S. 849, 856 (1994). A federal district
court is authorized to summarily dismiss a habeas corpus
petition if it plainly appears from the face of the petition
or the exhibits that are attached to it that the petitioner
is not entitled to federal habeas relief. See Carson v.
Burke,178 F.3d 434, 436 (6th Cir. 1999); Rules
Governing § 2254 Cases, Rule 4, 28 U.S.C. foll. §
2254; 28 U.S.C. § 2243. The Sixth Circuit, in fact, long
ago indicated that they “disapprove the practice of
issuing a show cause order [to the respondent] until after
the District Court first has made a careful examination of
the petition.” Allen v. Perini,424 F.3d 134,
140 (6th Cir. 1970). A district court therefore has the duty
to screen out any habeas corpus ...