Opinion
No. 02-Cv-10084-Bc
June 10, 2002.
The petitioner, Charles Taylor, presently in custody at the Federal Correctional Institution in Milan, Michigan, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. In his pro se application, the petitioner challenges his sentence for one count of armed bank robbery, 18 U.S.C. § 2113(a) and (d), contending that his criminal history was miscalculated for sentencing guideline purposes. Because the petitioner's challenge is not properly brought under § 2241, and because the petitioner previously has filed a motion under 28 U.S.C. § 2255, the Court will dismiss the present petition and direct the Clerk of the Court to transfer the case to the United States Court of Appeals for the Seventh Circuit for a determination as to whether or not petitioner is entitled to a certificate of authorization permitting him to file this petition as a second or successive motion to vacate sentence under 28 U.S.C. § 2255.
I.
On November 15, 1995, the petitioner was convicted of one count of armed bank robbery following a jury trial in the United States District Court for the Northern District of Illinois, for which he received a sentence of two hundred twenty-two months in prison on July 10, 1996. The petitioner's conviction and sentence were affirmed on appeal. United States v. Taylor, 135 F.3d 478 (7th Cir. 1998). He subsequently filed a motion to vacate sentence under 28 U.S.C. § 2255 in the United States District Court for the Northern District of Illinois, which was dismissed as being time barred by § 2255's one-year statute of limitations. United States v. Taylor, No. 95 CR 325 99 C 6862, 2000 WL 656668 (N.D. Ill. Mar. 23, 2000).
In his application for writ of habeas corpus filed in this Court under 28 U.S.C. § 2241, the petitioner contends that the sentencing court miscalculated his criminal history category under the United States Sentencing Guidelines when imposing the sentence in this case.
II.
A motion to vacate sentence under § 2255 is the proper device for a federal inmate's challenge to a sentence imposed in violation of the federal constitution or laws. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998). A federal prisoner may bring a claim challenging his or her conviction or the imposition of sentence under 28 U.S.C. § 2241 only if the remedy afforded under § 2255 is inadequate or ineffective to test the legality of the defendant's detention. Charles v. Chandler, 180 F.3d 753, 756-58 (6th Cir. 1999); Robinson v. Hemingway, 175 F. Supp.2d 915, 916 (E.D. Mich. 2001). The burden of showing that the remedy afforded by § 2255 is inadequate or ineffective rests with the petitioner; the fact that a prior motion to vacate sentence may have proven unsuccessful does not meet that burden. In Re Gregory, 181 F.3d 713, 714 (6th Cir. 1999). The remedy afforded under § 2255 is not considered inadequate or ineffective simply because § 2255 relief has already been denied, the petitioner has been procedurally barred from pursuing relief under § 2255, or the petitioner has been denied permission to file a second or successive motion to vacate sentence. Charles, 180 F.3d at 756-58; Hervey v. United States, 105 F. Supp.2d 731, 733 (E.D. Mich. 2000). Thus, a habeas petitioner may not resort to § 2241 to overcome his failure to file a § 2255 motion to vacate in a timely manner. United States v. Logan, 22 F. Supp.2d 691, 694 (W.D. Mich. 1998).
The Sixth Circuit Court of Appeals has stated that the circumstances in which § 2255 might be deemed "inadequate" are narrow, as the "liberal allowance" of the writ under § 2241 would defeat the restrictions placed on successive petitions or motions for collateral relief imposed by the AEDPA. See United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001). To date, no federal circuit court has permitted a post-AEDPA petitioner who was not making a bona fide claim of "actual innocence" to use § 2241, via § 2255's savings clause, as a way of circumventing § 2255's restriction on filing a second or successive motion to vacate sentence. Hervey, 105 F. Supp.2d at 733 (citing Charles, 180 F.3d at 757).
In the present case, the petitioner has failed to show that the remedy established by § 2255 was an inadequate or ineffective remedy for him to challenge the constitutionality of his sentence. The fact that petitioner's first motion to vacate sentence was dismissed as being time-barred by the AEDPA's statute of limitation would not render his remedy under § 2255 ineffective. Any "ineffectiveness" is not attributable to any inadequacy of 28 U.S.C. § 2255, but rather, to the petitioner's failure to file his prior motion to vacate sentence on time. See Logan, 22 F. Supp.2d at 694. Furthermore, the petitioner has failed to allege that he is actually innocent of the crime of armed bank robbery. Therefore, the petitioner is unable to bring a habeas petition under § 2241 to challenge the sentence that was imposed in this case.
The Sixth Circuit Court of Appeals has suggested that the proper procedure for disposing of a petition for writ of habeas corpus improperly filed under § 2241 in these circumstances is for the district court to deny relief on the petition and transfer the matter to the court of appeals for a determination of whether petitioner is entitled to a certificate of authorization to file a second or successive § 2255 motion to vacate sentence. See Hervey, 105 F. Supp.2d at 735, n. 1 (citing In re Genoa, U.S.C.A. 99-2046 (6th Cir. Dec. 14, 1999)). See also 28 U.S.C. § 1631; In re Hanserd, 123 F.3d 922, 934 (6th Cir. 1997); In re Sims, 111 F.3d 47 (6th Cir. 1997). The Seventh Circuit has also suggested that it would be appropriate for a federal district court to transfer a second or successive habeas petition or motion to vacate sentence to the Seventh Circuit for a certificate of authorization, pursuant to 28 U.S.C. § 1631. See Benton v. Washington, 106 F.3d 162, 165 (7th Cir. 1996).
Since a motion to vacate sentence must be filed in the district that sentenced the defendant, see Gregory, 181 F.3d at 714, the proper court for petitioner to file a motion to vacate sentence under 28 U.S.C. § 2255 would be with the United States District Court for the Northern District of Illinois. However, since petitioner would first need authorization from the Seventh Circuit to file a second motion to vacate, a transfer to the Seventh Circuit for such a determination is required.
III.
For the foregoing reasons, it is ORDERED that the petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2241 is DENIED.
It is further ORDERED that the Clerk of the Court to transfer this case to the United States Court of Appeals for the Seventh Circuit pursuant to 28 U.S.C. § 1631 and In Re Sims, 111 F.3d 45, 47 (6th Cir. 1997) for a determination of whether petitioner may file a second or successive motion to vacate sentence pursuant to 28 U.S.C. § 2255.