United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER
AARON POLSTER, UNITED STATES DISTRICT JUDGE.
se Petitioner Kevin Smith, an inmate in the Federal
Correctional Institution in Elkton, Ohio filed the
above-captioned Petition for a Writ of Habeas Corpus under 28
U.S.C. § 2241. He was convicted on May 27, 2004 in the
United States District Court for the Western District of
Michigan on Count One for of use of interstate commerce
facilities in the commission of murder-for-hire, in violation
of 18 U.S.C. § 1958; Count Two for being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g)(1); Count Three for possession of a firearm with the
manufacturer's serial number removed, in violation of 18
U.S.C. § 922 (k); and Count Four for possession of a
firearm in furtherance of a crime of violence in violation of
18 U.S.C. § 924 (c)(1)(A). He was sentenced to 120
months in prison on counts one and two to run concurrent to
each other, and 60 months on counts three and four to run
consecutive to each other and to the sentence imposed for
counts one and two, for a total aggregate sentence of 240
months in prison. Petitioner appealed his conviction and
filed a Motion to Vacate under 28 U.S.C. § 2255. His
conviction was upheld each time.
has now filed this Petition for a Writ of Habeas Corpus under
28 U.S.C. § 2241 claiming he is actually innocent of the
charge in Count Four, possession of a firearm in furtherance
of a crime of violence. He contends he is authorized to
challenge his conviction on this Count by Mathis v.
United States, 136 S.Ct. 2243, 2246-47 (2016). He
indicates that his conviction under 18 U.S.C. § 924
(c)(1)(A), requires the other three counts under which he was
convicted to qualify as a crime of violence under 18 U.S.C.
§ 924 (c). He contends count one, use of interstate
commerce facilities in the commission of murder-for-hire, in
violation of 18 U.S.C. § 1958 does not qualify as a
crime of violence because it does not require physical force
as an element of the crime. He contends Mathis
instructs that the Court may not examine whether physical
force was actually used so he is actually innocent of count
four. He asks this Court to grant the writ, order him to be
resentenced on the first three counts, and then release him
as he has served all of the time on his other sentences.
STANDARD OF REVIEW
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). j 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
Section 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.
Thorns, 270 F.3d 292, 295 (6th Cir. 2001). However, this
Court may dismiss the Petition at any time, or make any such
disposition as law and justice require, if it determines 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 Section 2243).
is not entitled to relief under 28 U.S.C. §2241. As a
general matter, 28 U.S.C. §§ 2255 and 2241 provide
the statutory scheme for federal prisoners to obtain habeas
relief. See Terrell v. United States, 564 F.3d 442,
447 (6th Cir. 2009). Section 2255 is the avenue for relief
for federal prisoners to challenge their conviction or
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, federal prisoners
"that seek to challenge their convictions or imposition
of their sentence" must assert such claim in the
sentencing court under § 2255. See Charles v.
Chandler, 180 F.3d 753, 755-56 (6th Cir. 1999). The
remedy afforded under § 2241 is not an additional,
alternative, or supplemental remedy to that prescribed under
§ 2255. See Bradshaw v. Story, 86 F.3d 164, 166
(10th Cir. 1996). Petitioner cannot raise claims in a §
2241 Petition when his attempts to obtain relief under §
2255 for those claims are unsuccessful.
2255 does contain a narrow exception to this rule which
permits a federal prisoner, in rare circumstances, to
challenge his conviction or the imposition of his sentence
under 28 U.S.C. § 2241. A federal prisoner can only use
§ 2241 to challenge his conviction or sentence if there
is an intervening change in the law after his conviction that
establishes his actual innocence and it appears that the
remedy afforded under § 2255 is "inadequate or
ineffective to test the legality of his detention."
United States v. Hayman, 342 U.S. 205, 223 (1952);
United States v. Peterman, 249 F.3d 458, 462 (6th
Cir. 2001); In re Hanserd, 123 F.3d 922, 929 (6th
Cir. 1997). Actual innocence in this context means that the
intervening change in the law renders the conduct of which
Petitioner was convicted no longer a crime. See Martin v.
Perez, 319 F.3d 799, 804 (6th Cir. 2003);
Peterman, 249 F.3d at 462; Bousley v. United
States, 523 U.S. 614, 623 (1998)). In addition,
Petitioner must demonstrate that he cannot obtain relief
based on this new decision from the sentencing court.
Bousely, 523 U.S. at 620 (citing Davis v. United
States, 417 U.S. 333, 346 (1974)).
attempts to utilize this narrow exception to obtain relief
under § 2241, by claiming the Supreme Court's
decision in Mathis rendered him actually innocent of
one of the crimes for which he was convicted.
Mathis, however resolved the question of whether a
state crime could qualify as a predicate offense under the
Armed Career Criminal Act ("ACCA") to enhance a
criminal sentence if its elements are broader than those of a
listed generic offense. Petitioner is not challenging a
sentence enhancement under the ACCA or any other statutory or
guideline provision. Rather, he is challenging one of the
crimes for which he was indicted, and convicted.
Mathis is inapplicable to this case. Petitioner
cannot obtain relief from his conviction in a §2241
this Petition for a Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241is denied and this action is dismissed
pursuant to 28 U.S.C. § 2243. Further, the Court
certifies, pursuant to 28 U.S.C. §1915(a)(3), ...