Opinion
Case No.: 02-CV-72903-DT
October 8, 2002
OPINION
Ira Barclay ("Petitioner") has filed a motion to vacate his conviction pursuant to 28 U.S.C. § 2241. Also pending before the Court is a motion for leave to file an amended petition under § 2241. Petitioner alleges, through counsel, that he is being deprived of his constitutional rights and that the Court should vacate his conviction in light of Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). For the reasons given below, the Court shall dismiss the motion to vacate conviction. Petitioner's motion to amend shall be denied as moot.
Petitioner seeks to amend to show that he has perfected service on Warden Ellis. Because Petitioner's motion is being dismissed, this amendment is moot.
I. Background
Petitioner was convicted in this Court of one count of conspiracy to distribute heroin and cocaine, 21 U.S.C. § 846, and two counts of aiding and abetting distribution of heroin, 21 U.S.C. § 841(a)(1). The Court sentenced Petitioner to concurrent terms of 360 months in prison on each count, followed by five years of supervised release. See United States v. Barclay, No. 89-80507 (E.D. Mich. Feb. 12, 1990).Petitioner appealed his conviction, arguing ineffective assistance of counsel and violation of the Court's discovery order. The United States Court of Appeals for the Sixth Circuit affirmed Petitioner's conviction in an unpublished order. See United States v. Barclay, No. 90-1249 (6th Cir. Oct. 18, 1990).
On December 23, 1998, Petitioner filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255, raising the following issues: (1) whether his motion was subject to equitable tolling; (2) whether counsel rendered ineffective assistance during sentencing; (3) whether the Government violated 18 U.S.C. § 201(c)(2) when it promised witnesses something of value for their testimony; (4) whether the Court violated Due Process at sentencing by relying on erroneous information contained in the PSI report; (5) whether appellate counsel was ineffective for failing to argue that the Court erred at sentencing by not departing downward from the sentencing guidelines on the basis of Petitioner's health and physical disability; and (6) whether Petitioner was entitled to an evidentiary hearing on his claims. On April 27, 1999, the Court denied Petitioner's motion as untimely. In July, 2000, the Sixth Circuit denied Petitioner's request for a certificate of appealability.
On November 28, 2000, Petitioner filed the pending motion to vacate conviction in the United States District Court for the Western District of Pennsylvania. The Western District of Pennsylvania recently transferred Petitioner's motion to this District after Petitioner was transferred from a prison in Pennsylvania to FCI-Milan in this District. The motion raises two substantive issues: (1) whether Petitioner's sentence should be vacated in light of the Supreme Court's decision in Apprendi and (2) whether Petitioner's convictions should be vacated on the ground that 21 U.S.C. § 841 is unconstitutional.
II. Discussion
The Court will not address the merits of Petitioner's claims, because a motion to vacate sentence under 28 U.S.C. § 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. However, a federal prisoner may also challenge the validity of his conviction or sentence under § 2241 if § 2255 is "inadequate or ineffective to test the legality of his detention," according to the "savings clause" of 28 U.S.C. § 2255, which states:
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, 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.United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001).
Petitioner invokes the savings clause of § 2255 to justify bringing his claims in a motion under § 2241. He contends that a § 2255 motion is an inadequate and ineffective remedy because the one-year period of limitation for § 2255 motions has expired and because the Supreme Court has not held that Apprendi may be applied retroactively. See 28 U.S.C. § 2255. The Sixth Circuit, however, has stated that the remedy under § 2255 is not undermined simply because a prisoner has allowed the one-year statute of limitations to expire. Charles v. Chandler, 180 F.3d 753, 758 (6th Cir. 1999); see also Peterman, 249 F.3d at 461 (stating that "[t]he unavailability of § 2255 relief does not alone establish inadequacy or ineffectiveness under the savings clause").
Furthermore, Prisoners may not bring their Apprendi claims in a petition for writ of habeas corpus under § 2241. San-Miguel v. Dove, 291 F.3d 257, 260-61 (4th Cir. 2002); Robinson v. Hemingway, 175 F. Supp.2d 915, 918 (E.D.Mich. 2001); Rumler v. Hemingway, 171 F. Supp.2d 705, 710 (E.D.Mich. 2001); Brown v. Mendez, 167 F. Supp.2d 723, 730 730 n. 11 (M.D.Pa. 2001); Bridges v. Vasquez, 151 F. Supp.2d 1353, 1363 (N.D.Fla. 2001). If Apprendi is made retroactively applicable to cases on collateral review, relief under § 2255 would become available to Petitioner. See Robinson, 175 F. Supp.2d at 918 ("Relief under § 2255 will become available to petitioners who have previously filed a § 2255 motion if and when Apprendi is made retroactively applicable to cases on collateral review").
A Judgment consistent with this Opinion shall issue forthwith.