Opinion
CASE NUMBER 03-CV-70337-DT
April 17, 2003
OPINION AND ORDER OF DISMISSAL WITHOUT PREJUDICE
I. Background
This is a habeas corpus case under 28 U.S.C. § 2241. The case originated when petitioner Paul R. Stafford, Sr., submitted the pending habeas corpus petition, a motion for reconsideration, and a motion for an appeal bond to the Clerk of Court. Petitioner typed case number 02-CV-73114-DT on his habeas petition and motion for reconsideration, and it appears that he intended to substitute the habeas petition for a coram nobis motion that he filed in case number 02-CV-73114-DT. Because Petitioner submitted a filing fee with his habeas corpus petition, the Clerk of Court treated the pleading as a new action, rather than a continuation of the 2002 case.
The Magistrate Judge recommended in the 2002 case that Petitioner's motion for the writ of error coram nobis be denied. On October 30, 2002, the Court accepted the Magistrate Judge's Report and Recommendation as its findings and conclusions. The Court then dismissed the 2002 case by entering a judgment in favor of the respondent.
Petitioner is a federal inmate presently confined at the Federal Correctional Institution in Milan, Michigan. His habeas corpus petition attacks a federal conviction in the United States District Court for the Western District of Wisconsin. The conviction arose from the use of interstate wire communications to defraud and obtain money by false pretenses and representations. Petitioner is serving a sentence of 188 months in prison.
On receipt of the habeas petition, the Court ordered Petitioner to show cause why his petition should not be construed as a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Petitioner alleges in a recent response to the Court's order that he raised most of his grounds for relief in a § 2255 motion, but he should be permitted to raise additional grounds for relief in his habeas petition. He claims to possess newly discovered evidence that the Government suppressed. Petitioner further contends that he should not be required to return to the trial court because of double jeopardy concerns and because government officials in the Western District of Wisconsin committed perjury.
Petitioner's answer to the Court's order to show cause was accompanied by motions for appointment of counsel and for a continuance of thirty days for appointed counsel to file a response to the Court's order. Petitioner alleges that, if the Court fails to appoint counsel or to grant a continuance, he "has no other choice but to withdraw the 2241 Motion."
II. Discussion
The Court begins its analysis by noting that Petitioner has no absolute right to appointment of counsel in a habeas action. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002) (citing MeCleskey v. Zant, 499 U.S. 467, 495 (1987)), petition for cert. filed, (U.S. Dec. 20, 2002) (No. 02-9052). Furthermore, Petitioner is seeking to vacate, set aside, or correct his federal sentence, and "[s]ection 2255 is the primary avenue for relief for federal prisoners protesting the legality of their sentence, while § 2241 is appropriate for claims challenging the execution or manner in which the sentence is served." United States v. Peterman, 249 F.3d 458, 461 (6th Cir.), cert. denied, 534 U.S. 1008 (2001).
Petitioner apparently does not want the Court to construe his habeas petition as a motion to vacate sentence under § 2255. The Court would have no jurisdiction to adjudicate a § 2255 motion even if the Court did construe the habeas petition as such, because motions under § 2255 must be filed in the sentencing court. 28 U.S.C. § 2255 ¶ 1; Charles v. Chandler, 180 F.3d 753, 755-56 (6th Cir. 1999).
The question, therefore, is whether Petitioner may challenge the validity of his federal conviction or sentence under § 2241 pursuant to the "savings clause" of § 2255, which reads as follows:
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to [§ 2255], shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.28 U.S.C. § 2255 ¶ 5 (emphasis added). Petitioner invokes the "savings clause" of § 2255 as justification for bringing his claims under § 2241. He alleges that the Government did not submit previously suppressed evidence to him until after he filed his § 2255 motion. He implies that he would be barred from filing another motion to vacate sentence. He also claims to be actually innocent of the crime for which he was convicted.
Petitioner is not prohibited from filing another motion under § 2255; instead, he must convince a panel of the appropriate court of appeals that a second or successive motion contains
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found [him] guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.28 U.S.C. § 2255 ¶ 8.
Even assuming that Petitioner cannot make the required showing for filing another motion under § 2255, "[t]he unavailability of § 2255 relief does not alone establish inadequacy or ineffectiveness under the savings clause" of § 2255. Peterman, 249 F.3d at 461. The remedy under § 2255 is not considered inadequate or ineffective simply because a previous § 2255 motion was denied, or because the petitioner is procedurally barred from pursuing relief under § 2255, or because the petitioner was denied permission to file another motion under § 2255. Charles, 180 F.3d at 756 (citations omitted).
The "savings clause" of § 2255 "may only be applied when the petitioner makes a claim of actual innocence." Bannerman v. Snyder, ___ F.3d ___ No 01-6597, 2003 WL 1791261, at *2 (6th Cir. Apr. 7, 2003). Petitioner claims to be innocent, but he has not shown clearly and convincingly that he is actually innocent of his crime. The United States Court of Appeals for the Seventh Circuit has described the evidence of Petitioner's guilt in his criminal case as "not only overwhelming but virtually uncontested." United States v. Stafford, 136 F.3d 1109, 1112 (7th Cir. 1998).
III. Conclusion
The Court concludes for the reasons given above that the remedy under § 2255 is not inadequate or ineffective to test the legality of Petitioner's detention. Therefore, Petitioner may not pursue his claims in a habeas corpus petition filed under § 2241. However, because Petitioner has implicitly asked the Court not to re-characterize his habeas petition as a motion to vacate sentence under § 2255, the Court will allow Petitioner to voluntarily withdraw his habeas petition. This case is DISMISSED without prejudice pursuant to Fed.R.Civ.Proc. 41(a)(2). The Court DENIES as moot (1) Petitioner's motion for an appeal bond [Doc. #2], which he claims is necessary if an evidentiary hearing is needed, (2) his motion for appointment of counsel [Doc. #6], which is unnecessary in light of the Court's resolution of Petitioner's claims, and (3) his motion for a continuance [Doc. #7], which is predicated on the request for counsel.
Petitioner's motion for reconsideration [Doc. #3] seeks reconsideration of the Court's order accepting the Magistrate Judge's Report and Recommendation in Stafford v. Hemingway, No. 02-CV-73114-DT (E.D. Mich. Oct. 30, 2002). The motion is DENIED as untimely, because it was filed more than ten days after the Court entered the judgment and order in case number 02-CV-73114-DT. See Local Rule 7.1(g)(1) (E.D. Mich. Sept. 8, 1998) (requiring motions for rehearing or reconsideration to be filed within ten days after entry of the judgment or order).