UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Benjamin Foreman,

 

Petitioner, Case Number 5:14-cv-13336

 Honorable John Corbett O'Meara

v.

J A Terris,

Respondent.

________________________________/

OPINION AND ORDER SUMMARILY DENYING PETITION FOR WRIT OF

HABEAS CORPUS

Petitioner Benjamin Foreman, is a federal prisoner confined at the Federal

Correctional Institution in Milan, Michigan. According to his petition, on May 16, 2006,

Petitioner was convicted of possession with intent to distribute crack cocaine in the United

States District Court for the Western District of Michigan. The Court sentenced him to 300

months.

The instant habeas petition asserts that his sentence is invalid because his guilty plea

was never accepted in open court as required by Rule 11 of the Federal Rules of Criminal

Procedure. Because Petitioner has failed to establish that his remedy under 28 U.S.C. § 2255

is inadequate or ineffective, the petition for writ of habeas corpus is DENIED.

Discussion

A petition for writ of habeas corpus filed by a federal inmate under 28 U.S.C. § 2241

is proper only where the inmate is challenging the manner in which his sentence is being

executed. Capaldi v. Pontesso, 135 F. 3d 1122, 1123 (6th Cir. 1998). A motion to vacate

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sentence under § 2255 is the proper avenue for relief as to a federal inmate's claims that his

sentence was imposed in violation of the federal constitution or laws. Id. A motion under §

2255 affords the same rights as a habeas corpus petition. Davis v. United States, 417 U.S.

333, 343-44 (1974). However, unlike federal habeas corpus proceedings, a motion under §

2255 is ordinarily presented to the judge who presided at the original conviction and

sentencing of the prisoner. Rule 4(a), 28 U.S.C. foll. § 2255; See also Hill v. United States,

368 U.S. 424, 427 (1962).

A federal prisoner may bring a claim challenging his conviction or the imposition of

sentence under 28 U.S.C. § 2241 only if it appears that the remedy afforded under § 2255 is

inadequate or ineffective to test the legality of the defendant's detention. See Wooten v.

Cauley, 677 F. 3d 303, 307 (6th Cir. 2012). Habeas corpus is not an additional, alternative,

or supplemental remedy to the motion to vacate, set aside, or correct the sentence. See

Charles v. Chandler, 180 F. 3d 753, 758 (6th Cir. 1999). The burden of showing that the

remedy afforded under § 2255 is inadequate or ineffective rests with the petitioner. See In

Re Gregory, 181 F. 3d 713, 714 (6th Cir. 1999).

The circumstances under which a motion to vacate sentence brought pursuant to §

2255 might be deemed inadequate and ineffective so as to permit relief via a writ of habeas

corpus under § 2241 are narrow, as the "liberal allowance" of the writ would defeat the

restrictions placed on successive petitions or motions for collateral relief imposed by the

AEDPA. 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 effectively making a claim

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of "actual innocence" to use § 2241 (via § 2255's savings clause) as a way of circumventing

§ 2255's restriction on the filing of a second or successive motion to vacate sentence. Charles

v. Chandler, 180 F. 3d at 757.

Petitioner's claim that his plea is invalid is not a challenge to the manner of execution

of his sentence, and it must therefore be brought in a motion to vacate sentence pursuant to

28 U.S.C. § 2255 and not in a habeas petition. See Capaldi, 135 F.3d at 1123; See also

Copeland v. Hemingway, 36 Fed. App'x. 793, 794-95 (6th Cir. 2002).

Moreover, Petitioner's claim does not fall within the actual innocence exception that

would allow him to file a § 2241 petition, because he does not allege that he is actually

innocent.

Without any allegation that his remedy under § 2255 is inadequate or ineffective,

Petitioner is not entitled to habeas relief from his criminal conviction pursuant to 28 U.S.C.

§ 2241. Moreover, this Court cannot construe this petition as a motion to vacate sentence

brought pursuant to 28 U.S.C. § 2255. In re Shelton, 295 F. 3d 620, 622 (6th Cir. 2002).

Accordingly, the Court will deny the petition for writ of habeas corpus. This dismissal

is without prejudice to Petitioner filing a motion to vacate sentence pursuant to 28 U.S.C. §

2255.

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III. Order

Based upon the foregoing, the petition for writ of habeas corpus brought pursuant to

28 U.S.C. § 2241 is DENIED. Because a certificate of appealability is not needed to appeal

the denial of a habeas petition filed under § 2241, Witham v. United States, 355 F. 3d 501,

504 (6th Cir. 2004), Petitioner need not apply for one with this Court or with the Sixth

Circuit before filing an appeal from the denial of his habeas petition.

s/John Corbett O’Meara 

United States District Judge

Date: September 17, 2014

I hereby certify that a copy of the foregoing document was served upon the parties of

record on this date, September 17, 2014, using the ECF system and/or ordinary mail.

s/William Barkholz 

Case Manager

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