United States District Court, N.D. Ohio, Western Division
G. CARR SR. U.S. DISTRICT JUDGE
se Petitioner Ivan Roper filed this Petition for a Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2241.
Petitioner is incarcerated in FCI Elkton, having been
convicted in 2013 in the United States District Court for the
Eastern District of Tennessee on charges of possession of a
firearm in furtherance of a drug trafficking crime. His
sentence was enhanced as career offender under United States
Sentencing Guidelines (“USSG”) § 4B1.1
because he had two prior Tennessee convictions for aggravated
robbery and one conviction for possession of marijuana with
intent to sell. Petitioner claims the Tennessee drug statute
under which he was convicted was broader than the definition
of a controlled substance offense as defined by the USSG
4B1.2. He seeks resentencing without the enhancement.
pled guilty in 2013 in the Eastern District of Tennessee to
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c). A presentence
report calculated Petitioner's advisory guideline range
as 262 to 327 months. The report also classified him as a
career offender under USSG § 4B1.1 because he had two
prior Tennessee convictions for aggravated robbery and one
conviction for possession of marijuana with intent to
sell. On November 20, 2013, the Eastern District
of Tennessee imposed a term of imprisonment of 188 months.
Petitioner did not appeal.
27, 2016, Petitioner filed a Motion to Vacate his Sentence
under 28 U.S.C. § 2255 asserting he was entitled to
relief under Johnson v. United States, 135 S.Ct.
2551 (2015). The Eastern District of Tennessee held that
Johnson did not undermine his career offender
enhancement because the Tennessee statute regarding
aggravated armed robbery remains a crime of violence under
the Guidelines use-of-physical-force clause. See United
States v. Taylor, 800 F.3d 701, 719 (6th Cir. 2015)
(“[T]he Supreme Court's holding in Johnson
leaves unaffected this Court's determination that simple
robbery in Tennessee is a predicate offense under the
‘use-of-physical-force' clause.”); United
States v. Bailey, 634 F. App'x 473, 477 (6th Cir.
2015) (per curiam) (“Tennessee convictions for
aggravated robbery and robbery are categorically violent
felonies under the ACCA's use-of-physical-force
clause.”); United States v. Mitchell, 743 F.3d
1054, 1058-60 (6th Cir. 2014) (Tennessee robbery is
categorically a violent felony under the ACCA's
appealed that decision to the United States Court of Appeals
for the Sixth Circuit. See Roper v. United States,
No. 16-6693 (6th Cir. May 23, 2017). The Sixth Circuit denied
his request for a certificate of appealability, stating that
Johnson does not apply to the advisory sentencing
guidelines. Id. (citing Beckles v. United
States, 137 S.Ct. 886, 897 (2017)).
has now filed a Petition for a Writ of habeas Corpus under 28
U.S.C. § 2241, asserting the Tennessee drug offense
statute under which he was convicted is broader than the
statutory definition of a controlled substance under USSG
4B1.2 and under Descamps v. United States, 133 S.Ct.
2276 (2013) he is entitled to resentencing without the career
offender enhancement. For the reasons stated below, the
Petition is denied.
of habeas corpus may be granted by the Supreme Court, any
justice thereof, the district courts and any circuit judge
within their respective jurisdictions.” 28 U.S.C.
§ 2241(a). Section 2241 “is an affirmative grant
of power to federal courts to issue writs of habeas corpus to
prisoners being held ‘in violation of the Constitution
or laws or treaties of the United States.'”
Rice v. White, 660 F.3d 242, 249 (6th Cir. 2011)
(quoting 28 U.S.C. § 2241(c)). Because Petitioner is
appearing pro se, the allegations in his Petition
must be construed in his favor, and his pleadings are held to
a less stringent standard than those prepared by counsel.
Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001).
However, I may dismiss the Petition at any time, or make any
such disposition as law and justice require, if I determine
the Petition fails to establish adequate grounds for relief.
Hilton v. Braunskill, 481 U.S. 770, 775 (1987);
see also Allen v. Perini, 424 F.2d 134, 141 (6th
Cir. 1970) (holding district courts have a duty to
“screen out” petitions lacking merit on their
face under 28 U.S.C. § 2243).
general matter, 28 U.S.C. § 2255 and 28 U.S.C. §
2241 provide the statutory scheme for federal prisoners to
obtain habeas relief. Terrell v. United States, 564
F.3d 442, 447 (6th Cir. 2009). Section 2255 provides the
primary avenue of relief for federal prisoners claiming the
right to release as a result of an unlawful 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. 2001). Therefore, claims asserted by federal prisoners
seeking to challenge their sentences must be filed in the
sentencing court pursuant to 28 U.S.C. § 2255.
Charles v. Chandler, 180 F.3d 753, 755-56 (6th Cir.
is a “savings clause” in 28 U.S.C. §
2255(e), which provides a narrow exception to the statutory
scheme and allows a federal prisoner to challenge his
conviction or sentence under § 2241 if § 2255 is
“inadequate or ineffective to test the legality of the
detention.” Terrell, 564 F.3d at 447 (citation
omitted). Section 2255 relief is not inadequate or
ineffective, however, merely because § 2255 relief has
previously been denied, the Petitioner is procedurally barred
from pursuing § 2255 relief, or the Petitioner has been
denied permission to file a second or successive § 2255
motion. Barnes v. United States, 102 F. App'x
441, 443 (6th Cir. 2004) (citing Peterman, 249 F.3d
the Sixth Circuit has held the savings clause applies to
allow a § 2241 Petition only in the narrow circumstance
where a Petitioner demonstrates “actual innocence based
upon Supreme Court decisions announcing new rules of
statutory construction unavailable for attack under section
2255.” Hayes v. Holland, 473 F. App'x.
501, 502 (6th Cir. 2012). Actual innocence means
“factual innocence, ” which requires the
Petitioner to demonstrate “it is more likely than not
that no reasonable juror would have convicted him.”
Barnes, 102 F. App'x 443 (citation omitted).
has not demonstrated he is entitled to relief under the
savings clause. As an initial matter, Descamps was
decided by the Supreme Court on June 20, 2013. Petitioner was
sentenced by the Eastern District of Tennessee on November
20, 2013, five months after Descamps was issued. If
Petitioner's sentence violated established Supreme Court
precedent, his remedy would lie in either a direct appeal of
his conviction, or in a Motion to Vacate under 28 U.S.C.
§ 2255. He did not file a direct appeal. He did,
however, pursue a § 2255 Motion in 2016, but he did not
raise a claim under Descamps. His remedy under
§ 2255 does not become inadequate or ...