United States District Court, E.D. Michigan, Southern Division
TONY L. BROCK, Petitioner,
J.A. TERRIS, Respondent.
OPINION AND ORDER SUMMARILY DENYING PETITION FOR A
WRIT OF HABEAS CORPUS AND DENYING LEAVE TO APPEAL IN FORMA
D. Borman, United States District Judge.
prisoner Tony L. Brock ("Petitioner"), confined at
the Federal Correctional Institution in Milan, Michigan,
filed this pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. In 2014, Petitioner pled
guilty in the United States District Court for the Central
District of Illinois to possession with intent to distribute
heroin and conspiracy. He was sentenced to concurrent terms
of 180 months. Judgment at 2, U.S. v. Brock, No.
13-20058 (CD. Ill. July 25, 2014) (ECF No. 34). Petitioner
argues that he was erroneously sentenced as a career
offender. For the reasons set forth below, the Court will
summarily deny the petition and deny leave to appeal in forma
federal grand jury charged Petitioner with possession of
heroin with the intent to distribute it and conspiracy to
distribute heroin. Indictment at I, Brock, No.
13-20058 (ECF No. 11). Petitioner entered into a plea
agreement whereby he agreed to cooperate with law enforcement
authorities. Plea Agreement, Brock, No. 13-20058
(ECF No. 18). The pre-sentence report determined that Brock
was a career offender based on his prior convictions of
Aggravated Discharge of a Firearm and possession of less than
15 grams of cocaine. Defendant's Sentencing Memorandum at
2, Brock, No. 13-20058 (ECF No. 31). As a result,
Brock faced an advisory guideline sentencing range of 360
months (30 years) to life imprisonment if he went to trial,
or a range of 262 to 327 months (21 years and ten months to
27 years and three months). Id. at 1-2. Without the
career criminal enhancement, he faced an advisory sentencing
range of 57 to 71 months (4 years and 9 months to 5 years and
11 months). Id. at 1. Nevertheless, the Court
sentenced him to 180 months (15 years). Judgment at 2,
Brock, No. 13-20058 (ECF No. 34). Petitioner later
filed a motion to reduce his sentence, but did not file a
direct appeal. Motion to Reduce Sentence, Brock, No.
13-20058 (ECF No. 41).
6, 2016, Petitioner filed in the Central District of Illinois
a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. Motion, Brock v.
United States, No. 16-2158 (CD. Ill. June 6, 2016)
[hereinafter, Brock II] (ECF No. 1). In this motion,
Petitioner brought the same challenge to his sentence that he
presents here. He argued that the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015), holding that the "residual clause" of the
Armed Career Criminal Act, 18 U.S.C. § 924(e), is
unconstitutionally vague, also applies to the scoring of the
advisory federal sentencing guidelines. Motion at 4,
Brock II, No. 16-2158 (ECF No. 1). On November 4,
2016, the court dismissed Petitioner's motion without
prejudice. Order and Opinion, Brock II, No. 16-2158
(ECF No. 1). The court found that the motion was prematurely
filed in light of the fact that the Supreme Court granted
certiorari in Beckles v. United States, 137 S.Ct.
886 (2017), to decide whether the advisory guidelines were
subject to vagueness challenges under the Due Process Clause.
Id. at 3. Petitioner never attempted to refile his
§ 2255 motion after the Supreme Court issued its
decision in Beckles.
primary mechanism for challenging the legality of a federal
sentence is a motion to vacate, set aside, or correct the
sentence under § 2255. United States v.
Peterman, 249 F.3d 458, 461 (6th Cir. 2001). The Court
of Appeals for the Sixth Circuit affirmed this in Hill v.
Masters, 836 F.3d 591, 594 (6th Cir. 2016), where it
explained that "[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."
is challenging the length of his federal sentence, as opposed
to the execution or manner in which he is serving his
sentence. Therefore, he may proceed under § 2241 only if
the remedy under § 2255 "is inadequate or
ineffective to test the legality of his detention." 28
U.S.C. § 2255(e). "The circumstances in which
§ 2255 is inadequate and ineffective are narrow."
Hill, 836 F.3d at 594 (quoting Peterman,
249 F.3d at 461).
Hill, the Sixth Circuit held that in limited
circumstances a federal prisoner may invoke the savings
clause of § 2255 to challenge the misapplication of a
sentence enhancement. See Hill, 836 F.3d at 598-99.
The prisoner must show that: (1) he or she was
"sentenced under the mandatory guidelines regime
pre-United States v. Booker, 543 U.S. 220
(2005);" (2) he or she is foreclosed from filing a
successive petition under § 2255; and (3) 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. Id. at
satisfies neither the first nor second conditions. Petitioner
was sentenced in 2014, after the Supreme Court issued its
decision in Booker. Moreover, Petitioner's prior
§ 2255 petition was dismissed without prejudice.
Petitioner is not foreclosed from filing a renewed §
2255 petition. As Petitioner has failed to satisfy at least
two of the three conditions set forth in Hill, he
may not maintain this action under §2241.
reasons given above, the Court denies the petition for writ
of habeas corpus. The Court also denies leave to appeal this
decision in forma pauperis because an appeal would lack merit
and could not be taken in good faith. 28 U.S.C. §
Petitioner is not required to apply for a certificate of
appealability if he attempts to appeal this decision because
"the statutory language imposing the
certificate-of-appealability requirement clearly does not
extend to cases where . . . detention arose out of federal
process but the proceeding is not ...