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 Case number 01-CR-80769 before Eastern District of Michigan District Judge

Denise Hood. 

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 Case number 02-CR-80163 before Eastern District of Michigan District Judge

Bernard Friedman.

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

ANDREW GROSS III,

Petitioner,

v. Case No. 08-CV-14851

MICHAEL B. MUKASEY, et al., 

Respondents.

 /

ORDER OF SUMMARY DISMISSAL

Pending before the court are Petitioner Andrew Gross’s “Petition for Writ of

Habeas Corpus By A Person in Federal Custody,” pursuant to 28 U.S.C. § 2241, and

his “Emergency Motion . . . for Preliminary Injunction and Temporary Restraining

Order.” His petition alleges that his sentence, comprised of two consecutive terms of

imprisonment, constitutes plain error. His motion seeks a transfer from his current

prison to a community corrections center. For the reasons stated below, the petition for

a writ of habeas corpus will be dismissed.

I. BACKGROUND

On February 15, 2003, following Petitioner’s guilty plea, he was sentenced to

eighty-four months of incarceration. (Pet.’s Mot. at 1.)1

 While serving this sentence,

Petitioner pleaded guilty in an entirely separate case. (Id.)

2

 As a result of this second

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 “In any other case involving an undischarged term of imprisonment, the

sentence for the instant offense may be imposed to run concurrently, partially

concurrently, or consecutively to the prior undischarged term of imprisonment to

achieve a reasonable punishment for the instant offense.” U.S.S.G. § 5G1.3(c).

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guilty plea, Petitioner received a sentence of 120 months, to run consecutively to his

first sentence. (Id.) He subsequently filed a number of petitions and motions before his

second sentencing court. (Case # 02-CR-80163, 11/04/08 Order.) Some of these

filings were dismissed and some were reinterpreted as successive petitions for habeas

corpus under 28 U.S.C. § 2255 and referred to the Sixth Circuit Court of Appeals. (Id.) 

In the end, none of Petitioner’s filings were granted.

Petitioner now takes a different route, filing a new petition for habeas corpus

under a different statute, 28 U.S.C. § 2241, and before this court, which was not

involved in any of Petitioner’s prior proceedings or sentencings. He argues that his

second sentencing court did not mention United States Sentencing Guideline §

5G1.3(c)3

 in determining that the sentence should run consecutively, which he contends

demonstrates plain error. (Pet.’s Mot. at 2-3.)

II. STANDARD

“[C]laims asserted by federal prisoners that seek to challenge their convictions or

imposition of their sentence shall be filed in the sentencing court under 28 U.S.C. §

2255 . . . and . . . claims seeking to challenge the execution or manner in which the

sentence is served shall be filed in the court having jurisdiction over the prisoner’s

custodian under 28 U.S.C. § 2241.” Charles v. Chandler, 180 F.3d 755, 756-57 (6th

Cir. 1999). Petitioner’s claim challenges the imposition of his sentence, and therefore is

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properly filed pursuant to 28 U.S.C. § 2255. Petitioner, however, titled his petition as

one seeking relief under 28 U.S.C. § 2241.

Section 2255 contains a “savings clause” which can, in limited circumstances,

permit a petitioner to file a habeas corpus petition pursuant to § 2241 rather than §

2255: 

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.

28 U.S.C. § 2255 (emphasis supplied).

The circumstances under 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 28 U.S.C. §

2244. United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001). “A remedy under

§ 2255 is not considered inadequate or ineffective simply because § 2255 relief has

been denied . . . or because the petitioner is procedurally barred from pursuing relief

under § 2255 . . . or because the petitioner has been denied permission to file a second

or successive motion to vacate.” Charles, 180 F.3d at 756. The petitioner bears the

burden of showing that a § 2255 remedy is inadequate. In re Gregory, 181 F.3d 713,

714 (6th Cir. 1999). 

Here, Petitioner does not mention, much less argue, that a § 2255 remedy is

inadequate. Nor does Petitioner provide any legal analysis of the remedy available to

him under § 2241, beyond including it in his petition’s title. This lack of argument fails to

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 The court’s cursory review of Petitioner’s motion reveals that he seeks relief

beyond that sought in his petition which likely should have been brought, in any event,

before the court which imposed the sentence he now seeks to alter via his requested

injunctive relief.

S:\Cleland\JUDGE'S DESK\C1 ORDERS\08-14851.GROSS.2241.Dismissal.eew.wpd

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satisfy the “rigorous showing” required to establish that remedies available to him under

§ 2255 are inadequate or ineffective. Martin v. Perez, 319 F.3d 799, 804 (6th Cir.

2003). Nor does the fact that his prior § 2255 petitions were denied meet the required

showing, Charles, 180 F.3d at 756, and thus, his petition will be dismissed. Because

Petitioner’s petition under § 2241 is now dismissed, his pending motion for a preliminary

injunction and temporary restraining order is moot.4

Accordingly, IT IS ORDERED that Petitioner’s “Petition for Writ of Habeas

Corpus by a Person in Federal Custody 28 U.S.C. § 2241” [Dkt. #1] is DISMISSED

WITH PREJUDICE.

IT IS FURTHER ORDERED that Petitioner’s “Emergency Motion . . . for

Preliminary Injunction and Temporary Restraining Order” [Dkt. # 3] is DENIED as moot.

 

 S/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: December 31, 2008

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, December 31, 2008, by electronic and/or ordinary mail.

 S/Lisa Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

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