United States District Court, W.D. Michigan, Southern Division
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE.
a habeas corpus action brought by a federal prisoner under 28
U.S.C. § 2241. Promptly after the filing of a petition
for habeas corpus, 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 (applicable to § 2241 petitions under Rule
1(b)); see also 28 U.S.C. § 2243. If so, the
petition must be summarily dismissed. Rule 4; see Allen
v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district
court has the duty to “screen out” petitions that
lack merit on their face). After undertaking the review
required by Rule 4, the Court concludes that the petition
must be dismissed because this Court lacks jurisdiction to
Ruffin Leon Parker, III is incarcerated at FCI Ashland in
Ashland, Kentucky. FCI Ashland is located within the
boundaries of the United States District Court for the
Eastern District of Kentucky. Petitioner is serving a
sentence of 188 months' imprisonment imposed by this
Court after Petitioner pleaded guilty to one count of
conspiracy to possess with intent to distribute, and to
distribute, 1, 000 kilograms or more of marijuana. United
States v. Parker, No. 1:10-cr-222-02 (W.D. Mich. Aug.
13, 2012). Petitioner has sought to modify his sentence
multiple times. He has challenged his sentence under 28
U.S.C. § 2255, unsuccessfully, and he has sought leave
to file second and successive motions under § 2255
multiple times. Each time, Petitioner has been denied leave.
in the criminal proceeding, Petitioner sought the appointment
of counsel to raise an issue regarding the impact of
United States v. Havis, 927 F.3d 382 (6th Cir.
2019). The Court appointed the federal public defender by
order entered August 14, 2019, “to address the import,
if any, of the [Havis] decision on Defendant's
sentence.” United States v. Parker, No.
1:10-cr-222-02 (W.D. Mich. Aug. 14, 2019). In the meantime,
however, Petitioner filed this petition, pro per,
challenging his sentence based on Havis. (Pet., ECF
No. 1, PageID.3.)
present petition, Petitioner relies upon 28 U.S.C. §
2241(b), rather than 28 U.S.C. § 2255, to challenge his
sentence. The premise of his challenge is that, under the
Sixth Circuit's holding in Havis,
“attempt” crimes cannot be used as
“controlled substance offense” predicates for the
career offender determination. Havis, 927 F.3d at
387. The Sixth Circuit has already called into question
whether a Havis challenge to a sentence that is
already final is anything more than a non-constitutional
challenge to advisory guidelines calculations and, thus,
would not be properly brought under § 2255 or, based on
the same reasoning, § 2241. Bullard v. United
States, 937 F.3d 654 (6th Cir. 2019).
or not Petitioner's challenge has merit, he has brought
it in the wrong court. Jurisdiction to consider “core
habeas petitions challenging present physical confinement . .
. . lies in only one district: the district of
confinement.” Rumsfeld v. Padilla, 542 U.S.
426, 443 (2004); see also United States v. Board,
747 Fed.Appx. 405, 408 (6th Cir. 2018) (“[A] §
2241 claim must be brought in the judicial district where the
prisoner is confined.”). Because Petitioner is not
confined here, the Court does not have jurisdiction to
consider his § 2241 petition.
light of the foregoing, the Court will summarily dismiss the
petition pursuant to Rule 4.
28 U.S.C. § 2253(c)(2), the Court must determine whether
a certificate of appealability should be granted. A
certificate should issue if Petitioner has demonstrated a
“substantial showing of a denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). The Sixth Circuit
Court of Appeals has disapproved issuance of blanket denials
of a certificate of appealability. Murphy v. Ohio,
263 F.3d 466, 467 (6th Cir. 2001) (per curiam). Rather, the
district court must “engage in a reasoned assessment of
each claim” to determine whether a certificate is
warranted. Id. Each issue must be considered under
the standards set forth by the Supreme Court in Slack v.
McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d
at 467. Consequently, this Court has examined
Petitioner's claim under the Slack standard.
Under Slack, 529 U.S. at 484, to warrant a grant of
the certificate, “[t]he petitioner must demonstrate
that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.” Id. “A petitioner satisfies this
standard by demonstrating that . . . jurists could conclude
the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 327 (2003). In applying this standard, the Court
may not conduct a full merits review, but must limit its
examination to a threshold inquiry into the underlying merit
of Petitioner's claims. Id.
Court finds that reasonable jurists could not conclude that
this Court's dismissal of Petitioner's claims for
lack of jurisdiction was debatable or wrong. Therefore, the
Court will deny Petitioner a certificate of appealability.
Moreover, the Court concludes that any appeal ...